Nationality and Borders Bill (Eleventh sitting)
Stuart C McDonald ExcerptsThursday 28th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 October 2021 - (28 Oct 2021)
Tom Pursglove
Amendment 110 will add to the other offences in the clause the additional offence of knowingly arriving in the UK without an electronic travel authorisation where that is required. The current offence of knowingly entering the UK in breach of a deportation order or without leave dates back to the Immigration Act 1971, and is no longer considered entirely apt, given the changes in ways that people seek to come to the UK through irregular routes, and in particular the use of small boats.
Many of the individuals involved are intercepted in UK territorial seas and brought to the UK. They arrive in, but may not technically enter, the UK. However, we need to deter migrants from risking their lives and those of their families by taking such dangerous routes to the UK, and to take back control of our borders. We are committed to strengthening our border security by ensuring that everyone wishing to travel to the UK, except British and Irish citizens, seeks permission to do so before travelling.
The clause introduces new arrival offences to deal with the issue. I reassure the Committee that we do not seek to criminalise genuine refugees who come to the UK to seek asylum, but safe and legal routes can be used for that purpose, without risking lives.
Government amendments 111 to 117 and 125 are consequential amendments; they ensure that where the clause and schedule 5 cross-reference to the offence of arrival in the UK without the required entry clearance, they also refer to the new offence.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
The Minister has slightly skirted over the most fundamental point in all this, which is that lots of refugees who come to seek asylum in this country will be criminalised by the provision—a good 60% or 70%, even according to the Home Office’s explanatory memorandum. How can he possibly feel comfortable about criminalising them through an offence that could see them imprisoned for up to four years?
Tom Pursglove
Clearly, any such cases would be referred to the Crown Prosecution Service or the relevant prosecuting authorities. They must make a judgment as to whether it is in the public interest to pursue such a prosecution. I will say more about that in due course, but it is important to highlight that point.
Tom Pursglove
As I said—I will come on to this in more detail—it is for the prosecuting authorities to decide whether it is in the public interest to pursue a particular case.
On amendment 188, I reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that consideration of the issues he has listed is already taking place. I fully recognise that, while immigration offences are a reserved matter, the devolved Administrations in Scotland and Northern Ireland have responsibility for their criminal justice systems, and decisions on prosecutions are independently taken by the Crown Office and Procurator Fiscal Service in Scotland and the Public Prosecution Service in Northern Ireland.
My officials have been in contact with the Scottish Government criminal justice division, the Crown Office and Procurator Fiscal Service and the Department of Justice Northern Ireland, and have shared information about potential impacts and costings. The amendment would add an extra and unnecessary layer of parliamentary scrutiny to a process that is under way at official level. It would also have a critical impact on the commencement of the clause; it would add delay, but we need the measures in place to respond to the expected surge in dangerous small boat crossings when the weather improves in spring next year. I urge the hon. Member not to press his amendment.
On clause 37, the UK is experiencing a very serious problem of small boat arrivals; illegal migrants are crossing from the continent in small craft that are often equipped with only an outboard motor. They are unseaworthy and wholly unsuitable for a crossing of a minimum of 21 miles across some of the busiest sea lanes in the world. Many of the vessels break down and are intercepted by UK personnel on the grounds of safety of life at sea. The rescued migrants, including pregnant women and children, are generally brought to Dover.
The maximum sentence of six months does not reflect the seriousness of the offence of entering in breach of a deportation order. Increasing the maximum sentence to five years will disrupt the activities of foreign national offenders involved in criminal networks, including organised immigration crime.
The current offence of knowingly entering the UK without leave is ineffective and does not provide a sufficient deterrent to those wishing to enter the UK illegally by small boat. We accordingly propose increasing the maximum sentence from six months’ to four years’ imprisonment.
We also intend to create a new offence of arriving in the UK without an entry clearance where that is required. While some migrants seek to evade immigration control, for example by landing on a deserted beach, many more now arrive in the UK after being rescued at sea. It would not be right, and would be perverse, to have to let migrants take the risk of completing their journey without assistance, and of landing at a small beach, rather than rescuing them at sea, just because under current legislation, the act of intercepting them and bringing them to the UK could cast doubt on whether the migrants entered unlawfully.
It is worth repeating that we are not seeking to criminalise those who come to the UK genuinely to seek asylum, and who use safe and legal routes to do so. We will be targeting for prosecution those migrants in cases where there are aggravating factors—where they caused danger to themselves or others, including rescuers; where they caused severe disruption to services such as shipping routes, or the closure of the channel tunnel; or where they are criminals who have previously been deported from the UK or persons who have been repeatedly removed as failed asylum seekers. The increased prison penalty will allow appropriate sentences to be given to reflect the seriousness of this behaviour.
Stuart C. McDonald
The Minister is at his most reassuring when he tells us, basically, “Don’t worry; we are not really going to apply the full provisions of the clause.” The key point is that none of this is in the Bill. I want to remove these measures altogether, but could we at least put some of the restrictions in the Bill? Otherwise, we are putting in statute a law that criminalises the overwhelming majority of asylum seekers coming into the United Kingdom.
Tom Pursglove
I hope I will be able to provide the hon. Member with further reassurance by going on to say that, of course, the decision on whether prosecution is in the public interest rests with the Crown Prosecution Service in England and Wales, the Crown Office and Procurator Fiscal Service in Scotland and the Public Prosecution Service in Northern Ireland. In many cases, we will continue to seek the illegal migrant’s removal, rather than their prosecution.
The amended and new offences will apply to all types of unlawful entry and arrival, rather than being limited to entry via small boats. We should not limit our response to the evasion of proper immigration procedures and controls depending on the method of entry employed. Doing that would risk causing displacement to another, potentially equally dangerous, route. The offences will therefore also apply equally to other means of evasion, such as concealment in a lorry.
We are also amending the offence of assisting unlawful immigration to the UK in breach of immigration law, known as facilitation, to include arrival in the UK. That will ensure that the offence of facilitation also applies to those assisting the new offence of arriving without a valid entry clearance.
Clause 60 is one of the six clauses drafted as marker clauses at introduction. As indicated in the explanatory notes and memorandum for the Delegated Powers and Regulatory Reform Committee, it was drafted as such in the interest of transparency—to make clear our intention of bringing forward substantive provisions on electronic travel authorisations. New clauses 21 and 22 are intended to replace clause 60.
Amendment 120 ensures the provisions in new clauses 21 and 22 can be extended to the Crown dependencies by Order in Council, should they wish to introduce their own electronic travel authorisation scheme by amending the Bill’s extent provisions in clause 69. As I noted earlier, the Government are committed to strengthening the security of our border by ensuring that everyone who wishes to travel to the UK—except British and Irish citizens—has permission to do so before they travel. The Government will introduce an electronic travel authorisation scheme—the ETA scheme—to close the current gap in advance permissions, and to enhance our ability to prevent the travel of those who pose a threat to the UK.
At present, non-visa nationals coming to the UK for up to six months as visitors, and in limited other categories, can travel to the UK solely on the basis of their nationality, evidenced by their passport or other travel document. That information is sent to the Government by the majority of carriers as advance passenger information shortly before the individual embarks on their journey. The ETA scheme will allow security checks to be conducted and more informed decisions to be taken at an earlier stage in advance of travel. The introduction of an ETA scheme is in line with the approach that many of our international partners have taken to border security, including the United States, Canada, New Zealand and Australia.
New clause 21 would insert proposed new section 11C into part 1 of the Immigration Act 1971, which will allow the Secretary of State to make immigration rules to administer an ETA scheme. Those rules will include, but are not limited to, who must apply for an ETA, what that application must contain, how long an ETA will be valid for, and when an ETA should be granted, refused, varied or cancelled.
Additionally, new clause 21 also inserts proposed new section 11D into part 1 of the 1971 Act, allowing the Secretary of State to administer an electronic travel authorisation scheme on behalf of a Crown dependency, if requested to do so, in the event that a Crown dependency chooses to operate its own ETA scheme. It also enables the Secretary of State to make regulations to recognise an electronic travel authorisation issued by a Crown dependency as valid for travel to the UK, in line with the UK’s commitment to maintaining the integrity and security of the common travel area.
To enforce the ETA scheme, new clause 22 builds on the existing carriers’ liability scheme by incentivising carriers to check prior to boarding that a traveller holds an ETA—or another form of permission, such as a visa in electronic form—or risk a civil penalty. Such checks are necessary to enforce our requirement for everyone, except British and Irish nationals, to get permission to come to the UK before they travel.
At present, carriers are incentivised to check for the presence of a valid immigration document that satisfactorily establishes identity and nationality or citizenship, and any visa required. New clause 22 incentivises carriers to check that all passengers have the appropriate permission— including by checking with the Home Office, if that permission may be held only in digital form—or risk a penalty. The new clause also provides a statutory excuse against the imposition of a penalty, to cater for circumstances where it has not been possible for the carrier to check for the presence of an ETA, or another form of permission, through no fault of their own.
The Chair
I will call Mr McDonald first, because he has tabled an amendment that is in this group.
Stuart C. McDonald
Thank you very much indeed, Sir Roger.
I will speak in support of amendment 188 and against the clause. To respond to what the Minister said, and to build on one of my interventions, the Committee has to debate the clause as it appears before us, not as the Minister envisages it being implemented. As it stands, the clause is one of the Bill’s low points, as it places in an already bleak Bill an extraordinarily broad criminal offence that will criminalise pretty much everyone who seeks asylum—many of whom are refugees—as well as survivors of trafficking. That will help to strengthen the control that traffickers have over their victims, rather than helping those victims.
It is unbelievable that should a Syrian, a Uyghur, a persecuted Christian convert, an Afghan interpreter, or a victim of the horrific crime of trafficking arrive seeking our protection, instead of being championed, they would be prosecuted and imprisoned by the regime put in place by the clause. Taken alongside the removal of the protections in the convention for asylum seekers in clause 34, this is a hugely retrograde step. It is also, again, utterly against the spirit and the letter of the refugee convention and the convention on trafficking, an issue that the Minister did not touch on.
Tom Pursglove
Notwithstanding what I have already said about the prosecution services taking a case-by-case approach, the hon. Member inquired about aggravating factors not being added to the Bill. The factors for prosecution when someone comes to the UK may change depending on the circumstances. We need to be able to react flexibly, so putting the factors in primary legislation would be too restrictive. I return to the point that I would expect prosecution services to look carefully at individual cases and to take all factors into account, so I would not accept his depiction.
Stuart C. McDonald
I take a small crumb of comfort from the fact that the Minister does seem to be evidencing some discomfort about how the clause is drafted. He is trying to reassure us by saying it will not be implemented as it is set out now, but that is not satisfactory. We parliamentarians are concerned with what is in the Bill. It is fine for the Minister to say that; I do not know how long he will be in office—hopefully many years—but there will be other Immigration Ministers to come, and they may take a completely different approach.
It may be challenging to put restrictions or a statutory defence in the Bill, but the Minister has to try. He must try much harder. We cannot leave such a broad criminal offence in the Bill simply on the basis of reassurances. I am absolutely of the view that the measures should be removed—for the reasons relating to the refugee convention, and that is even before we get to the ethical considerations and the impact the measures will have on asylum seekers and trafficking victims.
What the clause actually says will make it infinitely harder for refugees or trafficking survivors who eventually make it all the way through the horrendous new system to integrate, put down roots and rebuild their lives. There are questions about how the measures would operate in practice; they raise the spectre of families being separated on arrival if one member is accused of committing this criminal offence. How much harder will it be for somebody to get a job in due course if they have this criminal conviction and spend years in prison? UK citizenship will essentially be near impossible for them.
As we have heard repeatedly, particularly from the hon. Member for Sheffield Central, all of this will achieve absolutely nothing. As Tony Smith, the borders expert, told us in the Committee’s evidence sessions, use of the criminal justice system just has not worked. For smugglers and traffickers, it absolutely has, but not for their victims.
I have a question on scope. Will the Minister clarify whether someone who arrives with an entry clearance that is invalidated because it turns out that it was applied for on a false basis—for example, somebody who has secured a visit visa, when they are arriving to claim asylum—will have committed a criminal offence under the clause, because the leave to enter was obtained fraudulently? From the wording, I guess that they will, but it would be useful to hear the Minister’s clarification.
On amendment 110, we broadly support the ETA regime and encouraging carriers to ensure that the conditions are met, but we are still not absolutely convinced of the need for yet another criminal offence. Why can the remedy for turning up without an ETA not simply be to require that person to leave, or to send them back again? What group of people are being targeted here who are not already impacted by one of the other offences?
Even the wording on the state of knowledge of the person committing the offence raises questions. It says the person must “knowingly” arrive here without the ETA or entry clearance. The required knowledge seems to relate only to knowledge of arrival without the ETA or entry clearance, and not knowledge of whether he required that ETA or entry clearance. If we put that together with the fact that the measure will apply to people arriving in the UK rather than entering it, there is a danger that this will cover people who rock up in ignorance at airport border security, rather than anyone who is trying to do anything sinister. Simple ignorance and a mistake could lead to years in prison. I might be wrong about that; it would be useful to have clarity. Why is a criminal offence necessary?
Our amendment 188 was tabled to prompt discussion about consultation with the devolved criminal justice systems and the personnel in Scotland and Northern Ireland. Again, it gives me some comfort that the Minister has had some of these discussions—at least, the Home Office has—and there has been the important recognition that decisions about public interest will be for devolved prosecutors. It is important to acknowledge that, and it is welcome.
In short, as clause 37 stands, it sets out a framework for arresting, prosecuting and imprisoning several thousand asylum seekers, refugees and trafficking victims every year. Is there an estimate of what the cost will be, regardless of how it is implemented in practice? What will that do the backlogs in courts struggling to recover from covid, and what would be the impact on prison capacity? Putting all that to one side, the fundamental issue is the impact on asylum seekers, refugees and trafficking victims. The clause, as drafted, will compound the already slow and needlessly painful process of securing protection and add a criminal sanction. It is going to achieve absolutely nothing except more human misery.
Jonathan Gullis (Stoke-on-Trent North) (Con)
It will not be a shock to hon. Members that I fully support clause 37, which has absolutely the right intention. Ultimately, as we have discussed—we have heard the evidence from His Excellency the Australian high commissioner—if we are to deter people from making this dangerous journey, we should be making sure that the deterrents are strong enough.
We have part of that already: if somebody enters this country illegally, that obviously counts against their asylum claim. Now we are saying that the right thing is that if someone chooses to enter this country illegally, that could lead to a criminal prosecution with a strong prison sentence. That is exactly what the people of Stoke-on-Trent North, Kidsgrove and Talke want to hear at the end of the day, because 73% voted to leave and wanted to make sure that we took back control of our borders. We are a part of the asylum dispersal scheme already, with over 1,000 currently within the city region. We are happy to welcome them, but we want to see a change.
For example, we would love other parts of Scotland, not just Glasgow, to take on asylum seekers as part of the asylum dispersal scheme. Obviously, Glasgow is fully supportive, but other places voluntarily choose not to take part. We would like Labour-run Islington Borough Council to participate: by the end of 2020, it had not taken a single refugee.
The city of Stoke-on-Trent is expected to bear the burden of a large load and is taken advantage of, because ultimately we are an area that has been forgotten. The Labour party is still checking its Ordnance Survey map to find where the city of Stoke-on-Trent actually is—Captain Hindsight sent out a search party, and it got stuck in North Islington having chai latte and avocado on toast. Meanwhile, Conservative Members are more interested in delivering on the people’s priorities. We are delivering on that in making sure that this provision is strong.
Tom Pursglove
I will pick up on a few points in concluding our deliberations on the clause.
The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East spoke about costs. We are working with the various UK criminal justice systems and we have shared estimates of costs at official level as part of operationalising the plan. He sought further clarity about that and I hope that has provided reassurance. He also asked about entry clearance invalidation. If the leave is valid on arrival and is subsequently cancelled, no offence would have been committed, but if it is invalidated prior to arrival and the person knows that, the offence would have been committed.
Finally, I reiterate the point about the application of offences in this area. It bears repeating that we are targeting for prosecution those migrants for whom aggravating factors are involved—for example, those causing danger to themselves or others, including rescuers; those causing severe disruption to services such as shipping routes or closure of the channel tunnel; or those who have previously been removed from the UK as failed asylum seekers. The increased prison penalty will allow appropriate sentences to be given to reflect the seriousness of this behaviour.
Stuart C. McDonald
Has the Minister done an analysis of whether there are already criminal offences that cover the scenarios he has just outlined?
Tom Pursglove
We believe that this measure is required so that we can take appropriate action to deal with the sorts of circumstances I have just set out. I have made that clear on several occasions, and Members will have heard what I have said. I fully expect that that will continue to be the case, and that will be made clear at every opportunity.
I go back to the point that prosecuting services must judge cases on a case-by-case basis. They must of course take all the factors relevant to the individual case into account in deciding whether to proceed with it. They must also decide whether that is in the public interest. That is a very clear and established position, and will continue to be the case.
I am comfortable that the proposed approach is the right one to take in addressing the issues I have set out, which are particularly egregious and concerning and which require further action.
Amendment 110 agreed to.
Amendments made: 111, in clause 37, page 36, line 5, leave out “or (C1)” and insert “, (C1) or (C1A)”.
This amendment is consequential on Amendment 110.
Amendment 112, in clause 37, page 36, line 19, leave out “or (C1)” and insert “, (C1) or (C1A)”.
This amendment is consequential on Amendment 110.
Amendment 113, in clause 37, page 36, line 29, after “(C1)” insert “, (C1A)”.
This amendment is consequential on Amendment 110.
Amendment 114, in clause 37, page 37, line 2, after “(C1)” insert “, (C1A)”.
This amendment is consequential on Amendment 110.
Amendment 115, in clause 37, page 37, line 4, after “(C1)” insert “, (C1A)”.
This amendment is consequential on Amendment 110.
Amendment 116, in clause 37, page 37, line 12, after “(C1)” insert “, (C1A)”.
This amendment is consequential on Amendment 110.
Amendment 117, in clause 37, page 37, line 15, after “(C1)” insert “, (C1A)”. —(Tom Pursglove.)
This amendment is consequential on Amendment 110.
Question put, That clause 37, as amended, stand part of the Bill.
Stuart C. McDonald
I wish briefly to associate myself with everything the shadow Minister just said; he covered pretty much all the ground that I would have covered. This ridiculous clause tramples all over our international obligations. I suspect what will happen today, as happened on Second Reading, is that we will be reassured that the clause will be used in a certain way so that the RNLI and others will not be targeted. Maybe I am wrong, which would be good, but the scope of the clause is extraordinary.
If the defence, as it was on Second Reading, is, “We’re not going to go after these people,” that is not good enough. You have to put that on the face of the Bill. We cannot create criminal offences and ask folk to go about breaching those laws and committing crimes in the hope that the Government keep their promise that they will not be prosecuted. It is a fundamental rule of legal principle—[Interruption.] The Minister is shaking his head: if that is not the defence, I look forward to hearing what is.
Tom Pursglove
I am grateful to the hon. Members for Enfield, Southgate and for Halifax for providing the opportunity to explain the difficulties involved in securing convictions for an odious crime that targets and exploits vulnerable people and allows organised criminals to thrive.
Gain can be obtained in many ways, but cannot always be proved to the evidential standard required for a successful prosecution: for example, money transfers made by other family members abroad or made cash in hand, promises of servitude by the asylum seeker or others, or the provision of assistance in the facilitation act, such as by avoiding paying a fee by agreeing to steer a small boat. It is right that all available evidence should be considered and all relevant behaviour taken into account in investigating a serious offence. We are, at present, limited by what is an unrealistic evidential requirement that does not take account of the reality of how international organised crime operates.
In amending the offence, we are mindful of the excellent work of those acting from humanitarian motives both now and in the past. I understand fully hon. Members’ concerns that the wrong people will be drawn into the investigative and judicial process. We are therefore retaining the defence available to organisations whose aim is to assist asylum seekers and who do not charge for their services. I also recognise the bravery of volunteers working for the RNLI and lifeboat crews who undertake vital work in protecting lives at sea.
I will set out my intention to amend this clause on Report to ensure that organisations such as the RNLI, those directed by Her Majesty’s Coastguard, and individuals who fulfil their obligations in rescuing those in distress at sea may continue as they do now. We also intend to ensure that this provision does not prevent those responsible for vessels from complying with their obligations if they discover stowaways on board as they journey to the UK. I understand that some members of the Committee would prefer to have those amendments ready to debate now, but the issues are complex and we must ensure that we do not inadvertently provide loopholes to be exploited by criminal gangs who will look for any means to avoid prosecution.
The effect of amendment 33 is that, by retaining the constraint and having to prove the offence was committed again, we will only rarely be able to respond to and deter those committing the offence and will continue to place an unrealistic burden on our law enforcement officers and prosecutors. I therefore ask the hon. Gentleman to withdraw the amendment, although I hope he will be reassured that I intend to table on Report an amendment to address the crux of the issues that he raised. I hope that hon. Members across the House will feel able to support the amendment that I intend to table.
Tom Pursglove
In response to numbers of migrants using dangerous maritime routes to enter the UK illegally, this Government are committed to providing Border Force with the tools and legislation they need to combat this illegal migration threat more effectively. We need to strengthen and broaden our current powers not only to improve the effectiveness and capability of Border Force’s current maritime interception tactics, but to better equip them for future operational developments, which may be enhanced through agreements with our near border partners.
The clause and schedule will also provide new powers allowing Border Force to return vessels and those on board, when appropriate, to non-UK locations. Finally, the Government will use this clause to provide bespoke seizure and disposal powers intended for Border Force use against the small boats threat specifically. It will provide far more flexible options for the seizure and disposal of the vast majority of unflagged, ownerless vessels that are being used to transport illegal migrants.
I turn to Government amendments 82 and 83. We are seeing an unacceptable rise in dangerous and unnecessary small boat crossings. Our primary focus is on preventing people from embarking on dangerous channel crossings to enter the UK illegally, tackling the criminal gangs responsible and protecting lives. We must send a powerful message that people should not leave the safety of countries such as France or Belgium to enter the UK illegally in an unseaworthy boat, and if they do, they could be taken back.
Stuart C. McDonald
On the question of legality, Government amendment 82 is pretty extraordinary, because it seems to remove a restriction on the power of the Secretary of State so that she is unconstrained by the United Nations convention on the law of the sea; I am just looking at the explanatory note. Is that amendment designed to allow the Secretary of State to break the international law of the sea?
Tom Pursglove
I thank the hon. Gentleman for raising that point, and I will come on to it imminently. To finish the point I was making, the Government amendments will remove text from the Bill that is now considered not to be essential to achieving the aim that I have set out.
The UK has ratified, and is therefore fully committed to upholding, the United Nations convention on the law of the sea. The Government are committed to utilising their maritime enforcement tactics in full compliance with international law. The re-statement of that in the clause is therefore unnecessary. It is also unnecessary to state in legislation, where it is already beyond doubt, that Border Force would seek permission from a foreign country before taking a migrant boat back to that country. That statement adds nothing to the powers being created in this part of the Bill.
We want to make it explicit that operating these maritime enforcement powers in UK waters or international waters to simply divert a migrant vessel from UK territorial seas does not require the permission of a foreign state where that vessel may then enter their waters. These amendments will not result in the UK failing to abide by its international obligations, whether that be in the context of the safety of lives at sea or when seeking permission if intending to return migrants to another country, such as France.
I thank the hon. Member for Sheffield Central for what he will no doubt say about amendments 144 to 149. I will start by addressing amendment 144, which proposes to add an additional requirement to the maritime powers where the options available to officers intercepting a vessel at sea are spelled out. In order for the tactics intended for use in the exercise of these powers to be safe and legal, officers will have to carry out risk assessments before and during any exercise of the powers. That requirement will be laid out in operating procedures to ensure we meet our international obligations on safety of life at sea.
As any deployment of the tactics under the powers will be carried out in full accordance with those obligations, the welfare and safety of those on board vessels will be the priority throughout. With international obligations in this context not being a matter for UK legislation, we do not consider it necessary to add the amendment. I also note that any deployment of maritime tactics will be carried out in full compliance with obligations under the European convention on human rights and the Human Rights Act.
I turn now to amendment 145. The schedule that it would amend deals with new powers allowing Border Force and others to require vessels to be taken to a non-UK port if necessary. There are a number of reasons why we may wish to have the capability to do this, and they are not all related to the return or removal of asylum seekers. For example, any potential future agreement with partners to patrol waters jointly may require rescued or intercepted migrants to be taken back to the country from which they embarked on their maritime journey. As such, we do not consider that the amendment is needed or appropriate in schedule 5, and we are not prepared to commit to providing a running commentary to update on the progress of sometimes sensitive international negotiations.
I understand that the intention of amendments 146 to 148 is to emphasise the need to ensure that account be taken of human rights obligations by appropriately trained officers exercising these maritime powers. However, the amendments are unnecessary and would have no practical impact on the operation of the powers by Border Force officers and others. All operational officers within Border Force receive, and must have passed, appropriate training in order to exercise their duties. In order to be appointed as an immigration officer, an official must successfully complete and pass a foundation course that includes understanding the European convention on human rights as it relates to the Human Rights Act 1998, and their resulting obligations in the context of exercising powers.
Nationality and Borders Bill (Twelfth sitting)
Stuart C McDonald ExcerptsThursday 28th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 October 2021 - (28 Oct 2021)
Bambos Charalambous
Clause 43 refers to no-notice removals and presents another problem of access to justice in the Bill. The clause aims to provide a statutory minimum period to enable individuals to access justice prior to removal and makes provisions for removing individuals following a failed departure without the need for a further notice period. It also includes the provision of written notices of intention to remove and departure details. It makes clear in statute the duty of the Home Office to give people a maximum of five working days’ notice when they are going to be removed from the UK.
For more than 10 years, the courts have recognised that that duty to give notice of removal is essential to accessing justice and the rule of law. As the Committee will acknowledge from our discussions on the Bill so far, it is vital that, when officials decide people should be removed, those people can access the courts to challenge that decision if they have a legitimate case.
However, while this clause sets out to provide access to justice, its effectiveness in doing so is very unclear. If the purpose of the notice period is, as stated, to enable those facing removal to access legal advice and the courts, it is essential that people served with a notice are able in practice to access that advice.
For example, the clause does not explain how the Government will ensure that access to legal advice will be provided. Asylum seekers can be highly vulnerable and may experience difficulties in effectively accessing legal advice and in understanding the legal intricacies of the asylum process, such as studying legal determinations or preparing submissions. As we know from our earlier scrutiny, clause 22 in part 2 provides for up to but no more than seven hours of legal aid for those served with a priority removal notice to receive advice on their immigration status and removal. We do not believe that provision goes far enough, but this clause is worse still. Unlike the provisions for priority removal notices, there is no specific provision in part 3 for ensuring that those who are served with notice of intention to remove can access legal advice within the notice period. The scheme therefore depends on existing legal aid provision, which has of course been decimated by the Conservatives for more than a decade. There are serious limitations in the availability of this provision for those both in detention and in the community.
Subsection (8) inserts new section 10A in the Immigration and Asylum Act 1999. It sets out potential scenarios where a further notice period is not required, which includes, for example, where the person was not removed on the date specified in the first notice due to matters reasonably beyond the control of the Secretary of State, such as adverse weather conditions, technical faults or transport delays, or disruption by the person to be removed.
Disruption is very broad of course, and can be interpreted on a very broad basis. It could be applied to a person refusing to leave their room in detention because they want to speak to their lawyer. The fine print also states that a new notice of intention to remove and a further notice period are also not required where the person was not removed on the date specified in the first notice as a result of “ongoing judicial review proceedings”.
That point is even more problematic. It applies where a planned removal does not proceed because of judicial review proceedings. If those proceedings are resolved in a way that means removal can proceed, the Home Office does not have to give any notice of removal if it is carried out within 21 days of the court’s decision.
As the Public Law Project and JUSTICE have pointed out, that decision could come weeks, months, or even years after the first notice of removal. Over time, the person’s circumstances could have changed fundamentally, important new evidence could have come to light or the situation in their own country might have changed dramatically. Such changes can happen virtually overnight, as recently witnessed in Afghanistan. Yet once the previous judicial review proceedings, which were potentially based on completely different facts and circumstances, are decided, a person can be removed without any notice or opportunity to raise these new circumstances with the Home Office or to access the court. If implemented, that could give rise to significant injustices.
I have one example to highlight this point—I thank the Public Law Project and JUSTICE for sharing this example. MLF is a Sri Lankan national whose asylum claim had been dismissed. During judicial review proceedings, in which he was unrepresented, he submitted further representations to the Home Office based on new evidence of the killing of three male relatives. That new evidence could not be considered in the judicial review proceedings because it post-dated the decision being challenged. The Home Office’s barrister informed him that the material would be forwarded to the relevant part of the Home Office for consideration.
MLF was subsequently served with a decision that refused to consider his fresh representations. He was subsequently removed to Sri Lanka on the same day without any notice or opportunity to access the court. In hiding in Sri Lanka, MLF applied for judicial review of his removal without notice. The Home Office conceded that he had been unlawfully removed and arranged for MLF to return to the UK. He has since been granted refugee status on the basis of evidence that post-dated his original appeal, including that which he had submitted during his judicial review proceedings.
If clause 43 was implemented in that case, it would have authorised the removal of MLF without notice. To avoid situations where people are wrongly removed and evidence is not considered properly, amendment 137 seeks to delete subsections (3) to (5) of new section 10A of the 1999 Act. That change would ensure that people are required to be given notice of removal directions and an opportunity to ask the court to issue an injunction preventing their removal while additional elements of their case are considered or in order to present fresh evidence to challenge an initial decision.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
The shadow Minister has raised lots of sensible questions. I have one other brief question for the Minister, on new clause 28. He may not be able to answer it today, but I would like it clarified, if possible.
Proposed new section 10E to the 1999 Act that the new clause would add is supposed to apply when a person has applied for judicial review and the court has made a decision authorising the removal. To be clear, does that decision relate to the judicial review, or could it relate to any prior decision? That point will not affect lots of people, but it will be important. I appreciate that the Minister may not be able to answer immediately, but I hope we will get clarity on that in due course.
Tom Pursglove
It may be easier if I explain that the power in amendment 137 already exists—albeit for 10 days—in published policy that is available on gov.uk. The purpose of putting the policy into statute is not to introduce a new power, as it already exists. Rather, we want to place it on a statutory basis to enable parliamentary scrutiny.
We can currently rearrange a migrant’s removal on another flight within 10 days of a failed removal without the need to give the migrant a fresh notice period. Clause 43 will increase the period to 21 days. Our recent experience during the pandemic has shown us that organising flights and complying with travel restrictions is difficult—dealing with self-isolation and rebooking escorts, for example. It is therefore entirely reasonable and sensible to allow the flexibility of 21 days to remove the migrant if the removal fails for reasons that are reasonably beyond the Secretary of State’s control.
It may be helpful to provide some examples to illustrate that point. A migrant has already had time to access justice and is due to be removed, but the flight is cancelled because of bad weather. The removal fails, but we manage to book a flight for the next day. We do not want to be in the position of having to wait another five working days before we can remove that migrant. As a second example, if a removal fails because the migrant is deliberately disruptive, that person should not be rewarded with another five working days in which they can try to defer their removal further. For those reasons, I ask the hon. Member for Enfield, Southgate to withdraw his amendment.
To pick up on the point about access to legal aid during the notice period, migrants who are detained in immigration removal centres during the notice period will have access to the free legal advice surgery.
New clause 28 replaces clause 43 in its entirety. Our expert drafters have advised that it is better to do it that way because the text flows better and it is easier to navigate.
Unfortunately, migrants subject to enforced removal often wait until the last minute to challenge their removal from the UK. Consequently, flights are cancelled and removals are inevitably delayed at great cost to the taxpayer. We think it right that migrants subject to enforced removal must be allowed a reasonable opportunity to access justice. The sole purpose of the notice period is to give migrants time to seek legal advice. That is the rationale underpinning the clause.
Our current policy is complicated. Some migrants are given a minimum notice period of 72 hours, while others are given five working days. Calculating when the 72 hours start and end is confusing. They must include at least two working days, and the last 24 hours must include a working day. Evidently, there is scope for simplifying the process and making it consistent across the board. New clause 28 will do just that by placing in statute a single statutory minimum notice period of five working days for migrants. The new clause requires us to serve a written notice of intention to remove, setting out the notice period. Before the migrant can be removed, we must serve a written notice of departure details containing the date of removal.
A limited exception to the single statutory notice period relates to port cases. Migrants who are refused entry at the border can be removed within seven days without receiving a notice period. It is unlikely that they would have developed ties to the UK within that week.
The clause will create more clarity for Home Office staff, legal representatives and migrants. Migrants will know how long they have to access justice—in fact, some will have more time to access justice—and will therefore have fewer excuses to frustrate removal.
To be clear, we are not reintroducing removal windows, which were found to be unlawful by the Court of Appeal. Under the new clause, the migrant cannot be removed during the notice period. If the removal is cancelled or deferred because the migrant raises a fresh or further claim, a fresh notice period must be given before removal can proceed. Individuals will also be given a fresh notice period if there is a change to the previously notified destination or route, unless the place of transit is in a safe country.
The new clause provides that migrants can be removed within 21 days of a failed removal that was caused by their disruption. In such circumstances, a further notice period is not required because the migrant has already had sufficient opportunity to access justice, which is entirely reasonable when there are no significant changes to the migrant’s circumstances. That is in our current published policy but with a timescale of 10 days. Extending the time from 10 to 21 days will give us more time to rearrange removal.
The pandemic has highlighted the fact that organising escorts and rebooking flights cannot always be turned around quickly. Migrants frequently challenge their removal by way of judicial review, and of course that is their right. As per the clause, once a court decides that the migrant can be removed, we can remove them within 21 days without a fresh notice period. The migrant has already had time to access justice, and the removal decision has been subject to judicial scrutiny. There is no justification for further time.
Tom Pursglove
For too long, individuals with no right to remain in the UK, including foreign criminals, have been gaming the system in order to get released from detention and frustrate their removal. We have seen individuals making asylum claims while in detention, but then delaying the resolution of that claim through their own deliberate actions, such as refusing to be interviewed. The current system incentivises non-compliant behaviour. By creating obstacles, bail is more likely to be granted due to the time it will take to resolve the claim and any subsequent appeals. It is not right that a person’s non-compliance enables their release.
Similarly, an individual may refuse to provide fingerprints for a travel document or may lie about their true nationality, thereby obstructing the returns documentation process. This again makes the prospect of removal more remote and increases the likelihood that bail may be granted. From an operational perspective, non-compliance is difficult to tackle and becomes much harder to counter once individuals are released from detention into the community, where they have the ability to abscond or continue with non-compliance. Therefore, eliminating the risk and impact of non-compliance is a key benefit that arises from the use of immigration detention if appropriate in the individual case.
We must have an immigration system that encourages compliance. The purpose of clause 45 is to ensure that, so far as possible, appropriate weight is given to evidence that a person has not been co-operative with the immigration or returns processes without reasonable excuse when making immigration bail decisions. This is currently not explicitly referenced as one of the specific mandatory criteria for considering whether to grant immigration bail.
Stuart C. McDonald
The Minister did seem to accept that all those factors can be taken into account already if they are relevant to the question of whether the person is going to be removed in a reasonable time or whether they will abscond. Surely those are the only two questions. This is not necessary at all and seeks to use immigration detention as a form of punishment.
Tom Pursglove
I do not accept that depiction. We are requiring decision makers to take into account co-operation with removal proceedings and immigration processes when considering applications for immigration bail. We are mindful that non-compliance may already be considered, and that the tribunal takes such behaviour into account when deciding whether to grant bail. However, the intention behind the provision is that there be the same focus on evidence of non-compliant behaviour as there is on those factors already particularised and considered in every case. As we have always made clear, we do not detain indefinitely, and the clause will not mean that people will be detained solely due to non-compliance, as there must always be a realistic prospect of removal within a reasonable timescale.
Bambos Charalambous
We will oppose the clause. It makes it more difficult for individuals to get bail and leaves them stranded in immigration detention indefinitely.
The clause would require decision makers to consider previous failure “to cooperate with” certain immigration processes when considering whether to grant immigration bail. That is extremely vague and broad language. There is a risk of it being misconstrued and used to penalise those who use their legal rights to resist or appeal against immigration decisions made against them.
The Public Law Project has stated that if detainees are given the impression that any resistance to a decision of the Home Office may be held against them, it would increase unfairness and have a significant chilling effect on those bringing legitimate legal challenge. There is already an uneven playing field; the clause risks tipping things still further in the Home Office’s favour. The Home Office is expanding its powers of detention, while preventing independent judicial oversight of its decisions to detain.
Immigration detention is a harsh measure. It has no time limit and little judicial oversight, and should be used only when necessary and for the shortest time possible. The Government hold vulnerable people in prison-like immigration detention centres for periods ranging from days to several years. That includes people who have lived in the UK since childhood, people fleeing war and persecution, torture survivors and victims of human trafficking. Such vulnerabilities cannot be managed in detention and will no doubt be worsened by the prospect of bail being denied.
Since 2000, 49 people have died in immigration detention centres, and incidents of self-harm are now recorded at more than one a day. The Home Office’s immigration detention facilities are not fit for purpose, and narrowing the availability of immigration bail will only make the situation worse.
The uncertainty of indefinite detention is cruel not only for the detainee, but for family members waiting for them at home. Research by Bail for Immigration Detainees, which helps 3,500 detainees to apply for bail every year, shows that children of detainees are often British citizens, and suffer a range of physical and mental effects due to separation from their parent. Those are compounded by further, unexpected separation. For those children, cutting off the prospect of bail will lead to further mental ill health and suffering.
The majority of people in detention do not need to be there. More than 60% of people taken into detention are eventually released, their detention having served no purpose, at a cost of £76 million a year, according to Matrix Evidence research. BID has said that the Home Office repeatedly breaks the law and detains people unlawfully. In the past two years, the Home Office has paid out £15.1 million to 584 people whom it had detained unlawfully.
The clause will make it tougher for people to get bail and leave them trapped in detention for longer. The Government have committed to reducing detention, but this measure is counter to their own rhetoric. It means less justice for detainees, more harm for vulnerable refugees and more wasted costs for the taxpayer. That is why Labour opposes the clause.
Stuart C. McDonald
As I said in my intervention on the Minister, the decision has to be based on whether there is a reasonable prospect of imminent removal, and included in that is the question of the likelihood of the person absconding if bail is granted. If any historical non-compliance has any sort of relation to that question—if it is relevant—the tribunal will obviously already be able to take it into account. Today, the Minister is asking us to tell the decision makers to take into account historical non-compliance even where it has absolutely no bearing, in the decision maker’s view, on the fundamental question of whether someone should be interned. That is moving from weighing up those considerations in the question about removal to using detention almost as a form of punishment. It is completely unjustified, and I echo what the shadow Minister has said.
Question put, That the clause stand part of the Bill.
Stuart C. McDonald
I beg to move amendment 170, in clause 46, page 41, line 41, leave out “, before the specified date,”.
This amendment would remove the hard deadline for compliance for persons who have made protection claims or human rights claims to comply with a slavery or trafficking information notice.
The Chair
With this it will be convenient to discuss the following:
Amendment 169, in clause 46, page 42, line 4, leave out subsections (4) and (5) and insert—
“(4) Subsection (5) applies if the recipient of a slavery or trafficking information notice does not provide the Secretary of State or competent authority with relevant status information within a reasonable period of time.
(5) The Secretary of State must provide recipients with an ongoing opportunity to explain why they did not provide the relevant status information within a reasonable period of time (and see section 47).”
This amendment would remove the hard deadline for compliance for persons who have made protection claims or human rights claims to comply with a slavery or trafficking information notice.
Amendment 171, in clause 46, page 42, leave out lines 13 and 14.
This is a consequential amendment.
Stuart C. McDonald
Clause 46 brings us on to part 4 of the Bill, which relates to modern slavery. I will make a few general points in this debate, which will save me from having to repeat them in later debates. They are relevant to the clause and the amendment, and to other ones as well.
My first point is: why is modern slavery in a Bill that relates to immigration and border enforcement? The fact that it is included betrays the Government’s motivation. It is not about protecting survivors or addressing the huge difficulties victims face in accessing protection and support. Rather, this has to do with border enforcement functions and is based on unevidenced assertions of abuse. It is important to remember that people cannot refer themselves to the national referral mechanism as a potential victim of slavery; they have to be referred into it. The majority of referrals come from the Home Office and the police. In the overwhelming majority of cases— nine in 10—the NRM results in positive and conclusive decisions. None of this is evidence of any sort of abuse.
This part of the Bill also pre-empts the review of the modern slavery strategy that is supposed to be happening. The proposals are all largely absent from the new plan that was published earlier this year, and they have not been consulted on—certainly not with trafficking survivors. Efforts to tackle the traffickers will suffer as a result of the lack of consultation and engagement. When we debate these clauses, let us also remember that a huge number of survivors are British citizens.
The real problem that we face with trafficking is encouraging people to come forward. That is partly because of the power that traffickers have over their victims, partly because of the trauma that victims have suffered, and partly because we are not doing enough to enable them to feel sure that they will have protection. Too often the experience of the NRM process is that people are re-traumatised and left in limbo waiting for a decision, often for years and without any right to work. Even when they are recognised as trafficking or slavery survivors, as the vast majority are, they are given no leave to remain and are subject to removal. It is little wonder that while some expert groups reckon that there could 100,000 or more modern slavery victims in the UK, we conclusively identify around just 3,000 or so each year. Instead of fixing that, the clause and others in this part of the Bill will make things worse.
The Chair
I am sorry to interrupt the hon. Gentleman, but there will be a clause stand part debate later. If he could concentrate on the amendments in this group, that would be good.
Stuart C. McDonald
I am happy to do that, Ms McDonagh.
I will not repeat the arguments that I have already made about why it is wrong for Parliament to tell decision makers how to assess evidence that they see, but that we never will—I have done that already in relation to other notices. I simply make the point that putting in place deadlines for disclosure and punishments for missing them is especially dangerous and counterproductive for victims of trafficking.
Tom Pursglove
Before turning to part 4, which deals with modern slavery, I would like to make a declaration of interest. In October, prior to my appointment as Minister, I ran the London marathon and raised funds for the Mintridge Foundation, which encourages young people to get into sport, and Justice and Care, a charity that works to tackle modern slavery. I make the declaration in the interests of complete transparency and for the information of the Committee.
I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, and for Glasgow North East for the amendment. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East raised important questions about the purpose of the slavery and risk trafficking notice.
The clause forms part of our approach to expanding the one-stop process to include modern slavery through the establishment of a new slavery and trafficking information notice. We have already debated the one-stop process, so I will not repeat that discussion, but the aim of the process is to identify possible victims as early as possible and ensure they receive the support they need. To best achieve that, we also need to discourage misuse of the system by stating our expectations and stipulating the consequences of non-compliance with the process.
That being said, let me reassure hon. Members that the clause has safeguards built in, and decision makers will consider each case on its grounds. To seek to remove the deadline stipulated by the slavery or trafficking information notice, as suggested by amendment 170, would go against the approach I have outlined. Without a deadline, the Government would be unable to seek the information up front that supports speedier decision making. Equally, changing a “specified” time to
“a reasonable period of time”
would provide less certainty to victims and decision makers on what is required. That would be detrimental to the victim identification process and goes against what we are trying to achieve in the Bill.
The ability to identify victims at the earliest opportunity is fundamental to our ability to support them. The clause is part of a wider process of much-needed change to the system to enable quicker decision making and reduce opportunities for misuse of the system, which takes valuable resources from victims. To deliver on that aim, it is right that we specify the time period in which information should be given, so that there is a connection to the consequences of late provision. As I have already set out, that does not mean that late claims will not be considered; any individual who brings a late claim for a good reason will be treated as if the claim were made in time. That will enable us to strike the right balance between preventing misuse and focusing resources on victims. For the reasons I have outlined, I respectfully invite the hon. Gentleman to withdraw the amendment.
Stuart C. McDonald
We share the same goal, which is identifying victims. Unfortunately, every single trafficking organisation that has got in touch with us has said that putting these hard and fast deadlines in the Bill will make that harder, rather than easier. We will probably end up voting against this clause, but in the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald
I beg to move amendment 172, in clause 46, page 41, line 42, at end insert—
“(2A) The requirement in subsection (2) does not apply in relation to anything that the slavery or trafficking information notice recipient has previously provided to the Secretary of State or any other competent authority.”
This amendment would ensure a recipient of a slavery or trafficking information notice does not need to provide information that has already been submitted to the Secretary of State or any other competent authority.
This amendment makes a short and simple, but important, point. Requesting the same information that has already been disclosed could be needlessly re-traumatising for a victim of modern slavery or trafficking, so the simple question is whether the Minister can assure us that that will not be made necessary under clause 46. The clause seems to envisage that trafficking information notices could be served on someone who has already had a positive reasonable grounds decision. Can the Minister confirm whether that is right, and if so, why that would be necessary? As it stands, the clause calls for “any” information that might be relevant for the purposes of making a decision on reasonable or conclusive grounds. Surely there will be no penalty if information already provided is not once again provided in response to the notice being served.
Tom Pursglove
Again, I thank the hon. Gentleman for tabling the amendment. I reassure Members that the clause already has safeguards built in, and it is clear that decision makers will consider each case on its grounds. I appreciate the consideration given to the provision of information, and the recommendation that the clause should stipulate that information provided previously to the competent authority should not be included. However, the amendment is not needed. Decision makers in the competent authority will consider all information provided to them. Credibility considerations connected to lateness will, by implication, apply only where information has not been provided within a specified time period and without good reasons, which will be made clear in guidance. For that reason, I respectfully invite the hon. Member to withdraw the amendment.
Stuart C. McDonald
I am grateful to the Minister for his response, which I will go away and consider. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Holly Lynch (Halifax) (Lab)
I beg to move amendment 184, in clause 46, page 42, line 3, at end insert—
“(3A) Any slavery or trafficking information notice must be accompanied by information regarding the Secretary of State’s obligations to identify and support potential victims of modern slavery and trafficking.”
This amendment would ensure that potential victims are given information regarding their rights at the same time the notice is served.
It is a pleasure to serve with you in the Chair, Ms McDonagh. I commend the Minister on having run the London marathon for Justice and Care, which does invaluable work.
We are supportive of the previous Scottish National party amendments to clause 46, which were outlined by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. If we achieve nothing else this afternoon, I did promise the SNP spokesperson that I would work on being able to pronounce his constituency in time for our debates on the Bill, having managed to avoid doing so entirely during the passage of last year’s Immigration Act. I hope he will recognise those efforts.
With your permission, Chair, I will come back to clause 46 more broadly during the stand part debate. Our amendment follows a damning letter sent by 60 charities from across the human trafficking and modern slavery sector. They seeks to mitigate the effects of a Bill that they claim
“will have a disastrous impact on the UK’s response to modern slavery.”
In the light of the series of recommendations in that letter, amendment 184 would require any slavery or trafficking information notice to be
“accompanied by information regarding the Secretary of State’s obligations to identify and support potential victims of modern slavery and trafficking.”
We have serious concerns about both clauses 46 and 47, but these trafficking information notices are a new initiative, and should be accompanied by a full explanation of why the questions are being asked and what rights and support a potential victim of trafficking should be entitled to. The Government have placed significant emphasis on the need to reduce the time taken for victims to be identified, and on ensuring they receive the correct support package at the earliest opportunity. We strongly share that objective, so the requirement for information to be provided at the same time as the notice is served seeks to address any uncertainty and anxieties a potential victim may have.
Furthermore, it is critical that a trafficking notice is served with an assessment and awareness of risks and victims’ needs, as they can be incredibly wide-ranging, and that assessment and awareness can be essential for safeguarding purposes. Some victims will not have English as their first language, and some may have limited literacy skills. They will need access to the correct translator and there should be recognition of any special educational needs. That reinforces the need for each case to be evaluated sensitively.
We seek to ensure that the basic entitlement to information is met. It is important to recognise that in cases of modern slavery, many first responders and expert witnesses have found that victims interviewed often have so little knowledge of the national referral mechanism that they do not know if they are, or have been, in the NRM. Victims being unable to self-identify and limited awareness of how to navigate the NRM are consistent issues, and we will return to them under other clauses in part 4. Amendment 184 seeks to mitigate potential restrictions to the NRM, and is a sensible suggestion, and I hope that the Minister sees its merit.
Stuart C. McDonald
I will be brief, given what I said in support of the amendment. All the anti-trafficking organisations that got in touch with us—60 or so—said that this clause could cause huge problems. I am not clear at all what issue the Government think it will resolve. What is the problem they are striving to tackle? It has not been outlined at all. All hon. Members agree that we need to identify more victims, but as the hon. Member for Halifax said, this will do the opposite and make it harder, not easier.
Tom Pursglove
It might assist the Committee if I say a little more. I am not concerned about covering ground that we may have already covered if it helps to clarify matters further and to put beyond any doubt the Government’s undertaking.
The purpose of clause 46 is to ensure that genuine victims of modern slavery are identified at the earliest possible opportunity, so that they can get the support they need to recover from their exploitation. The clause is part of the measures that seek to expand the current one-stop process to include modern slavery through the establishment of the new slavery and trafficking information notice, which can be issued alongside the new evidence notice introduced by clause 16.
Asylum and human rights claimants will need to provide relevant information relating to being a victim of modern slavery or trafficking within a specified period and, if providing information outside that period, set out a statement of their reasons for doing so. The slavery and trafficking notice aims to help identify possible victims at the earliest opportunity, to ensure that they receive appropriate support. It also aims to ensure that those who are not genuine victims are identified at the earliest possible stage.
The clause is underpinned by access to legal advice to help individuals understand whether they are a potential victim of modern slavery or human trafficking, and to support a referral into the national referral mechanism if that is the case. The clause works in tandem with clause 47, which sets out the impact of not providing information in good time without a good reason, such as the effects of trauma. Individuals will also be made aware from the start that if they fail to disclose information, save for good reason, their credibility may be damaged. We will set out our approach in guidance, giving decision makers the tools to recognise the impact of exploitation and trauma, and ensuring any changes to processes resulting from those measures are designed to take full account of the impact of trauma on victims of modern slavery. We intend to work with the sector to develop the guidance around that. I hope that will give Members confidence that the views and experiences of those groups will be taken into account when developing the guidance.
Tom Pursglove
I think the hon. Gentleman may have misunderstood my point. I was not saying there was any intention to impose a requirement on the sector to work with Government to develop the guidance, but undoubtedly we would welcome the input of the sector, which has a lot of experience and knowledge. We think there is a genuine issue that we need to address. The point I have made several times is that we want people to access the help they need when they need it as quickly as possible.
Stuart C. McDonald
The sector would have preferred to have been consulted on the clause. The key problem it has is what happens if someone has gone past that deadline. This scheme puts real pressure on that person not to disclose at all, because they will fear that the regime will lead to their being disbelieved. That is a fundamental problem. Consulting after the clause is already on the statute book will not fix that.
Tom Pursglove
I disagree with the hon. Gentleman’s broader interpretation of the situation. We want to identify and help genuine victims as quickly as possible. I would expect cases to be looked at appropriately and individually to ensure that is exactly what happens. There was also a question of whether victims will receive a slavery and trafficking information notice before getting a reasonable grounds decision? Yes, we want to identify victims as soon as possible.
Stuart C. McDonald
I beg to move amendment 173, in clause 47, page 42, line 21, leave out—
“or a conclusive grounds decision”
This amendment would disapply this section when a conclusive grounds decision is being made (i.e. when a reasonable grounds decision will already have been made).
The amendment is designed to allow us to question how the new process will interplay with the NRM process, and to establish how long the notice period in the new process will be, so it is another short but important point. The amendment would disapply the section on credibility if a reasonable grounds decision is made. It is even less clear what sensible case can be made for the use of a trafficking information notice if sufficient information has already been provided to justify such a reasonable grounds decision.
Depending on how the system operates, and given the huge delays in making conclusive grounds decisions, the following scenario could play out. A person receives a reasonable grounds decision and is referred to the NRM process. That person makes a claim for protection, and the Secretary of State then serves them with a trafficking information notice. Full disclosure takes time because of their circumstances. The person is better placed to disclose much more information after the deadline for the trafficking information notice has passed but before a conclusive grounds decision is reached. It would surely be very strange, then, for the conclusive grounds decision to take account of late provision of information, but the clause appears to envisage that that could happen. Has that all been appropriately thought through? It would be useful to hear an explanation of how those two processes will interact.
Tom Pursglove
I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for their amendments. I am pleased to see from the amendments that they acknowledge the benefits of a system that brings forward at the earliest opportunity all information related to modern slavery, enabling us to provide support and protection quickly to those who need it.
To that end, clause 47 covers information raised at the reasonable grounds and conclusive grounds stages, which are the two crucial decision-making stages in the national referral mechanism, and which both confer different rights on possible and confirmed victims. Although there are different standards of proof at those two stages, it is critical that the decision maker at both points can review all information to take decisions. Those decisions should include consideration of whether information has been provided late and whether there are good reasons for that. By removing that consideration at the conclusive grounds stage, amendment 173 would remove the consequence of providing late information when the decision-making threshold is higher. That could perversely incentivise misuse of the system at the later stage.
We are clear that that approach should be taken across both decision points to ensure that we meet the clause’s aim of identifying victims as early as possible and reducing opportunities for misuse.
Stuart C. McDonald
I am confused. I cannot see the benefit of late disclosure if the conclusive grounds process is ongoing. What does the amendment incentivise?
Tom Pursglove
Again, I simply make the point that decisions are made case by case. We maintain that we need all the information at both decision points to reach the right decisions in individual cases. For those reasons, I respectfully invite the hon. Member to withdraw the amendment.
Stuart C. McDonald
We will go away and study what the Minister has said. I am still confused about the interaction between the two processes. The amendment was designed to seek an explanation, and I suspect that we will not be satisfied with it, but in the meantime I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald
I beg to move amendment 174, in clause 47, page 42, line 23, leave out “or on behalf of”.
This amendment would exclude statements made on behalf of a slavery or trafficking information notice recipient (as opposed to statements made directly by them) from this subsection.
This is a very short point, but another important one. The amendment is designed to try to get further information from the Minister. I am sorry to have to test him on all the detail of the clause, but it is important. What we are asking here is why statements made on behalf of a trafficking information notice recipient should be impacted by the clause because of late provision of evidence. What does this cover? Is a medical report, for example, to be impacted by the clause so that its credibility is doubted because the recipient gave information late? Is analysis of the truth of what a social worker or a counsellor has said on behalf of the trafficking survivor to be impacted by the clause as well? We are really just asking this. What does it mean? What is the scope of the fact that this scheme applies to statements made on behalf of the trafficking information notice recipient and not just by the recipient himself or herself?
Tom Pursglove
Again, I am grateful to the hon. Member for setting out his case for the amendment. We know that, given the nature of modern slavery and human trafficking, many individuals often struggle to provide information relating to their abuse. That is why these measures are supported by the provision of legal aid to support possible victims in understanding the process and the national referral mechanism. It is also for that reason that the clause is specifically drafted to capture information provided by the victim or on their behalf.
All relevant information should be considered, whoever provides it, when decision makers are taking into account the provision of late information. Not to do so would create an artificial divide between different cohorts of individuals, depending on who provides the information for consideration. That could inadvertently encourage misuse of the system by leaving it open for individuals to seek to use others to provide all information late, knowing that its late disclosure will not be part of the consideration of credibility, when they could provide it themselves. That could delay disclosure and therefore our ability to identify and support individuals at the earliest opportunity as well as reducing opportunities for misuse. To give a practical example, I am confident that if someone else failed to press “Send”, the individual affected would not be impacted negatively by that.
For the reasons that I have outlined, I respectfully encourage the hon. Member to withdraw his amendment.
Stuart C. McDonald
Again, I am grateful to the Minister for his answer and we will consider it. I am still not absolutely clear on precisely what the scope of the provision is and whether, for example,
“a statement…on behalf of the person”
would include a medical statement—a medical report—so that its credibility would be damaged just because the person who underwent the medical report disclosed information late. We will go away and think about that. I think the Home Office may need to give it some consideration as well, but in the meantime I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Anne McLaughlin
I beg to move amendment 175, in clause 47, page 42, line 24, leave out from “account” to the end of the subsection and insert
“of all the factors that may have led to the person providing the information late.”
This amendment would remove the presumption that delayed disclosure in relation to slavery or trafficking will be deemed damaging to a person’s credibility.
Tom Pursglove
I thank hon. Members for their genuine interest in these matters and for bringing forward their amendments. By introducing a statutory requirement to provide information before a specified date, victims of modern slavery will be identified at the earliest opportunity, ensuring that those who need protection are afforded it quickly. This measure is supported by the provision of legal aid to ensure that possible victims feel able to share information in a safe and supported manner.
It is important to state that the requirement to bring forward information related to being a victim of modern slavery does not mean that referrals brought late will not be considered; all claims of modern slavery will be considered, irrespective of when they are raised. We have purposefully not defined “good reasons” in the Bill, and the detail on how to apply “good reasons” will be set out in guidance for decision makers. That is the appropriate place, giving the Government the flexibility to respond to our ever-increasing understanding of modern slavery victims.
We will of course work carefully with stakeholders as we operationalise guidance to ensure that decision makers have the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall, share, or recognise such events in some instances, while not seeking to prejudge their decision making by placing this detail in legislation. However, as has been recognised, we cannot legislate for every instance where someone may have “good reasons” for providing late information. To attempt to do so would be impractical. It would also limit the discretion and flexibility of decision makers, who are best placed to consider all factors on a case-by-case basis.
Amendment 163 would have the perverse impact of individuals facing different requirements simply because their situation is excluded from the amendment. It also ignores the possibility that a person may identify as one of the listed categories, but their information may be late for unrelated reasons. It would therefore create a blanket acceptance for late information in specific prescribed circumstances, while a vulnerable individual who did not fall within the specified categories would face a different test on whether they had good reason for providing late information. That would be unfair.
As I have set out, it is important that we are clear on the consequence of late disclosure of information in order to provide clarity for decision makers and victims, and to deter possible misuse of the system. Removing the reference to impacting credibility, as amendment 175 seeks to do, would remove our ability to require the provision of information up front. A duty to provide information requires a consequence and I think we are all agreed that seeking information on modern slavery issues up front is of benefit to all. The clause already includes mitigations to the possible consequence of damaged credibility, providing clear safeguards while still addressing the issue of potential misuse. The solution is not to stifle the clause of any robustness.
As I stated, more detail on good reasons and the credibility considerations will be set out in guidance. We will work to ensure that this takes account of vulnerabilities related to an individual’s exploitation. However, as I have outlined, we believe that removing the consideration of credibility as damaging would impede the ability to reduce potential misuse and reduce the impetus to identify victims as early as possible. As a result, that would perpetuate the issues that these clauses are designed to address, to the detriment of victims.
Stuart C. McDonald
I am still not sure that the Minister has addressed a fundamental point here. The worry is that if somebody genuinely is a victim of trafficking—I hate even having to describe people in that way—and misses that deadline, the fact that there are possible consequences of that, even if they might have a good reason, means that all they know is that they have missed the deadline. It is a huge disincentive for them to then come forward with other information. That is the whole point, and I still do not think that has been addressed by the Government.
Tom Pursglove
I recognise the sincerity of the hon. Gentleman’s concern about this. What I would say to him, as I have now said many times, is that I expect appropriate decisions to be taken on a case-by-case basis, taking proper account of all the circumstances, mitigations and issues that people bring forward in relation to good reasons. I am confident that that process can be properly developed and delivered in a way that is responsive to those sorts of issues. That is why—to address the point made by the hon. Member for Halifax—it is difficult to put a precise time on when that guidance will be put in place, for the simple reason that we want to engage properly with the sector in the way that I have outlined. I want that to be a thorough process and for the guidance to be put in place in an appropriate manner that is as exhaustive as possible, but does not lack common sense and means that proper consideration is given to the many varied reasons that people may have for providing information late, for example.
Tom Pursglove
Clause 47 sets out the consequence if an individual who has been served with a slavery or trafficking information notice as discussed under clause 46 provides information relating to being a victim of modern slavery after the specified time period. The clause aims to ensure that possible victims are identified as early as possible to receive appropriate support and to reduce potential misuse of the national referral mechanism system from referrals intended to delay removal action. Under clause 47, the decision maker must decide whether information provided through the one-stop process is outside the specified time limit and therefore is late. This consideration will take into account whether there was a good reason for the late information, such as the impact of trauma, but where there are no good reasons, an individual’s credibility is damaged due to the provision of late information.
Stuart C. McDonald
The Minister referred to abusing the process but he has not said much about what evidence there is for this problem. What is the scale of it? Much like statelessness, perhaps he could write to us with the evidence of what it is that the Government are trying to get at here. The big problem is the three-year delay for making decisions. Is not that the problem rather than anything that the Minister has referred to?
Tom Pursglove
I recognise the invitation to write with more detail around this and I am happy to do that. That would be advantageous to the Committee. Given that time is getting on and we want to continue to make progress, I am very happy to take that request back to the Department. I will provide that information.
The Government will ensure that any changes to processes as a result of these measures are designed in a way that accounts for the impact of trauma. This includes ensuring that individuals working in the system are aware of the factors that can affect the task of obtaining information such as the effects traumatic events can have on people’s ability to accurately recall such events. This assessment will be set out in guidance for decision makers and we will engage stakeholders as we develop it. We will continue to consider all referrals on a case-by-case basis to ensure that support is tailored to the needs of genuine victims.
Nationality and Borders Bill (Ninth sitting)
Stuart C McDonald ExcerptsTuesday 26th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 October 2021 - (26 Oct 2021)
The Chair
Good morning, ladies and gentlemen. Before we start, I ask Members to ensure that their electronic devices are either switched off or on silent. Members are encouraged to wear masks at all times, except when speaking, but I entirely accept that it is a matter of personal choice, and of necessity in some cases. I understand from the usual channels that we might sit past 5 o’clock. I put that on the record so that Members can adjust their diaries accordingly should that be necessary, although it may not be. The reason, as some Members might not understand, is that come 4 November at 5 o’clock, the guillotine comes down, which means that anything undebated in the Bill remains undebated in Committee, so it is necessary to pace the pitch backwards. We hope to get through all the work in a timely fashion, but we are putting down a marker. If Ms McDonagh is not available to take the Chair this evening, I shall. Hansard and the Doorkeepers have been informed as well.
Clause 14
Asylum claims by persons with connection to safe third State: inadmissibility
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 56, in clause 14, page 17, line 31, at end insert—
“(d) there are in law and practice—
(i) appropriate reception arrangements for asylum seekers;
(ii) sufficient protection against serious harm and violations of fundamental rights;
(iii) protection against refoulement;
(iv) access to fair and efficient state asylum procedures, or to a previously afforded refugee status or other protective status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention;
(v) the legal right to remain during the state asylum procedure;
(vi) a grant of refugee status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention for those found to be in need of international protection;
(e) it is safe for the particular claimant, taking into account their individual circumstances.”
This amendment modifies the definition of a “safe third State”.
The Chair
With this it will be convenient to discuss the following:
Amendment 18, in clause 14, page 17, line 33, leave out “5” and insert “3”.
This amendment is consequential on a later amendment about the definition of “connection”.
Amendment 19, in clause 14, page 17, leave out lines 35 to 38.
This amendment removes subsection (6), which states that a claimant whose asylum claim has been denied by virtue of their connection to a particular safe third State may be removed to any other safe third State.
Amendment 20, in clause 14, page 17, line 40, leave out “may” and insert “must”.
In cases where it is unlikely to be possible to remove the claimant to a safe third State, or in other exceptional circumstances, this amendment would require otherwise inadmissible claims to be considered under the immigration rules.
Amendment 21, in clause 14, page 17, line 41, leave out line 41 to line 2 on page 18 and insert—
“(a) in the absence of a formal, legally binding and public readmission agreement between the United Kingdom and the State to which the person has a connection;
(b) as soon as the proposed State of readmission refuses to accept the person’s return or if the person’s readmission has not been agreed within three months of the registration of their asylum claim, whichever is sooner;
(c) if, taking into account the claimant’s personal circumstances, including the best interests of any children affected by the decision, it is more appropriate that the claim be considered in the United Kingdom;
(d) in such other cases as may be provided for in the immigration rules”.
This amendment broadens the circumstances in which the Secretary of State must consider an asylum application, despite a declaration of inadmissibility.
Amendment 22, in clause 14, page 18, line 13, leave out line 13 and insert—
“(a) has been granted refugee status or another protective status in the safe third state that is inclusive of the rights and obligations set out at Articles 2 to 34 of the 1951 Convention”.
This amendment would strengthen the safeguards in place before a “connection” can be relied on for the purposes of inadmissibility.
Amendment 23, in clause 14, page 18, leave out lines 16 to 24.
This amendment changes the definition of a “connection” to a safe third State.
Amendment 24, in clause 14, page 18, leave out lines 35 to 37.
This amendment changes the definition of a “connection” to a safe third State.
Amendment 25, in clause 14, page 18, leave out lines 38 to 43 and insert—
“(6) For the purposes of this section, a “relevant claim” to a safe third State is a claim for refugee status or other protective status that is inclusive of the rights and obligations set out at Articles 2 to 34 of the 1951 Convention.”
This amendment changes the definition of a “relevant claim” to a safe third State.
Amendment 26, in clause 14, page 18, line 46, at end insert—
“80D Conditions for implementation of section 80B
(1) The Secretary of State may not make a declaration under section 80B(1) in relation to any State unless there are in place reciprocal arrangements with that State by which—
(a) that State has agreed to receive from the United Kingdom a person with a connection to it; and
(b) the United Kingdom has agreed to receive from that State a person who has made an asylum claim in that State who has a connection to the United Kingdom.
(2) For the purposes of subsection (1), any reciprocal arrangements must provide for the period within which a State is to receive a person from the United Kingdom; and any declaration made under section 80B(1) shall cease to apply if that period has passed and the person remains in the United Kingdom.
(3) The period to which subsection (2) refers must not be longer than 6 months from the date the asylum claim to which it relates is first made.
(4) Notwithstanding subsection (3), the passing of the period shall not prevent the transfer of a person from the United Kingdom to another State in which the person has a family member and to which the person wishes to be transferred.
(5) The Secretary of State may not make a declaration under section 80B(1) in relation to any person who—
(a) has a family member in the United Kingdom;
(b) has been lawfully resident in the United Kingdom;
(c) has worked for or with any United Kingdom Government body or other body carrying out work for or sponsored by the United Kingdom Government; or
(d) has a family member who has been lawfully resident in the United Kingdom or worked with or for such a body.
(6) In this section—
“a family member” means a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece.”
This amendment would prevent the Secretary of State from rejecting asylum claims on the grounds that the claimant has a connection to a safe third State unless the UK has reciprocal arrangements with that State.
Clause stand part.
Stuart C. McDonald
It is a pleasure to serve under your chairmanship again, Sir Roger. I will speak to amendment 56 and the other amendments in the group, and against the clause, as currently drafted, standing part of the Bill. The clause allows the Secretary of State to declare asylum claims inadmissible on the grounds that she considers the person has a connection to a safe third state. That brings us to another provision in the Bill in relation to which we allege profound inconsistencies with the refugee convention—no doubt those will have been discussed when the Minister met with the United Nations High Commissioner for Refugees last week.
That inconsistency is one of the reasons why we believe the clause should not stand part of the Bill. Another reason is that we already know it does not work, because a version of this scheme has been in place in the immigration rules since the start of the year. It is incumbent on the Minister to provide the evidence that the provision has achieved anything remotely along the lines of what was intended. From the information that I have seen, it has achieved nothing of the sort.
Those immigration rules were put in place because, with the end of the transition period, the applicability of the EU’s Dublin rules came to an end. That created a significant problem for the Government as they had no replacement agreement in place with the EU under which individuals who would more appropriately have their asylum claim processed elsewhere could have their case transferred there. The clause is not a replacement for Dublin, but a dreadful, one-sided, pale imitation of it, and it is incompatible with the refugee convention.
The Dublin regulations were far from perfect but, first, they included important safeguards that are totally absent from the Government’s scheme, and they contained some restrictions on the grounds for transfer, whereas here the connection can be flimsy indeed, including mere transmit. Secondly, the Dublin rules are two-way. People could be transferred here from the EU or could remain here if they had connections to the UK, such as family, that made it appropriate for asylum claims to be considered in this country. Under the rules that the Government are offering, it is one-way only. The absence of such provision means that, unlike Dublin, this is not about responsibility sharing; it is about responsibility offloading.
The UK is failing to live up to its international obligations and hoping that somebody else will pick up the slack. More often than not, that will be a country that already supports larger numbers of refugees and processes far more asylum claims, including France, Germany, Belgium, the Netherlands, Italy and Greece—all highlighted by the Home Secretary at Second Reading.
Thirdly, the Dublin rules represented an agreed framework between member nations. Other countries had actually agreed in principle to take people back. In contract, the scheme set out in the immigration rules and in this Bill, as it stands, is a Home Office pipe dream. There are no agreements with our neighbours to take back those whose claims have been deemed inadmissible. In essence, the Home Office is suspending consideration of asylum claims for six months, even with no realistic prospect of removing more than an handful of people to have their claims considered by other countries. It simply adds another six months of limbo to these people’s lives, at a time when there is already a massive waiting time.
The latest figures I have read showed that something like 4,500 asylum seekers had been subject to the inadmissibility procedures since they came into effect in January. I think seven had ultimately been found inadmissible, and nobody had been removed. Those figures will have changed since then, and I look forward to receiving the updated figures, but what a disaster that represents. Freedom of information requests have confirmed that thousands of cases, including hundreds of Eritreans, Syrians and Afghans, have been served with inadmissibility notices, even though the Home Office knows that, for all intents and purposes, it will not be possible to remove them to so-called connected safe third states.
This is a waste of officials’ time, adds six months to the backlog and adds to, rather than resolves, the problems with the UK asylum system. I would ask the Minister, in responding, if he has calculated how much money the Home Office has spent supporting and accommodating people declared inadmissible only for the Home Office then to start assessing their claims six months down the line. As it stands, clause 14 should not form part of the Bill.
The amendments in this group prompt the Government to think about safeguards that could enable the clause to be consistent with the refugee convention, including restrictions and reciprocity. Amendment 26 tries to do that in a comprehensive but succinct way, while the other amendments probe more deeply into certain aspects of the clause as drafted.
Amendment 26 would basically add a new clause into the Nationality, Immigration and Asylum Act 2002, alongside the Home Office clauses, to fix the failures highlighted. Subsections (1) to (3) would require that an arrangement is in place with the third country, so there is no mass service of inadmissibility notices on people who there is no prospect of removing. Subsection (1) would also address the absence of reciprocity by ensuring that the agreement is a reciprocal one, so the Home Secretary can operate an inadmissibility regime only in relation to countries that are able to send people here or transfer claims here as well. Thus, for example, people with a family connection to the UK are able to have their claims considered in this country, and other examples are given in the amendment. As it stands, people’s connections, such as with family—even their closest family members—as well as language, previous residence in the UK or working for UK entities, including the British Army, are all totally overlooked by the Government’s scheme.
The remaining amendments in this group probe in more detail how the Government will ensure various other vital protections are in place. They take into account the published legal opinion of the United Nations High Commissioner for Refugees on the concept of inadmissibility and some of the criticisms raised there. Amendment 56 seeks to ensure that the rights of asylum seekers will be fully protected in the country to which the Government are seeking to transfer the claim.
As it stands, the definition of a safe third state is really pretty pathetic. So long as your life and liberty are not at risk for a refugee convention reason and that some sort of asylum process is in existence, off you go. There could be an almost certain risk of human rights breaches, albeit falling short of a threat to life or liberty, and that would not matter. There could be a threat to life, but for a non-convention reason, and again it seems that it does not matter, and the country is still deemed safe.
The wording of the safe third state definition is troubling from all sorts of angles. For example, the clause states that a country is safe if “a person” can apply for refugee status and “a person” will not be removed in contravention of the convention, without specifically asking the question, “Will this individual that we want to declare inadmissible be at such a risk?” It is not robust enough either in what it requires for access to asylum and refugee procedures. It simply says that a person may apply and receive protection in accordance with unspecified principles of the convention.
As I read clause 14 just now, if I was at risk in a proposed country I had a connection to because of new autocratic rules or a ruler who decided they wanted capital punishment for people with red hair, it would still very likely meet the definition of a safe country, because my life would not be threatened for a convention reason—arguably, it could be a particular social group, but it is not clear—and if I had previously made a claim there and it had been refused, apparently I am connected enough to be required to go back there. If I am wrong about that, I look forward to the explanation of how that would apply in these particular circumstances.
Amendment 56 therefore surely sets out totally unobjectionable safeguards about which we can all agree, so that—not just on paper, but in practice—fundamental rights are going to be respected, there are appropriate reception arrangements for asylum seekers, there is access to fair and appropriate asylum procedures, and the full convention of refugees must be available if accepted as a refugee.
Amendment 19 again seeks information from Ministers about their intentions in relation to a new provision that allows them to deny an asylum claim on the basis of a connection to country A, but instead remove that person to country B, even when, it seems, there is no connection. I guess that is a foretaste of the debate we will have on clause 26, but this is an extraordinarily wide provision and it is not constrained by any assessment of the appropriateness or otherwise of the transfer in the circumstances of the individual person.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does the hon. Gentleman accept that any country that meets the Copenhagen criteria, by virtue of being either a member of the European Union or an accession country, would be, by definition, a safe country?
Stuart C. McDonald
It almost certainly would, and it would meet the criteria in the Bill. However, that is not really the issue, because, as drafted, the definition of “safe country” goes way beyond who would meet those criteria in the EU. That is what I am driving at. Again, we struggle to see how clause 14 can be justified and how it can possibly be said to be appropriate or consistent with the convention. As the UNHCR put it:
“This would be a significant break from…international practice”.
Amendment 20 would simply mean that if there is no reasonable likelihood of removal to a third country in a reasonable period or there are exceptional circumstances that mean that the Home Secretary should consider the claim, then she “must” do so. As it stands, she “may” do so, but she also may not. Surely it is odd to want to give the Secretary of State the power not to consider a claim when she has decided that
“the claim should be considered”.
The amendment should probably also have taken out the reference to “exceptional circumstances”. After all, if the unexceptional circumstances suggest that the claim should be decided here, where is the logic in not doing that?
Amendment 21 sets out circumstances in which claims should, on any reasonable view, be processed here rather than attempts made to move them elsewhere. In short, if there is not an agreement with a third country that will allow for the transfer of cases, the Home Office should just get on with considering it. If the third country refuses the transfer or does not reply in three months, the Home Office should, again, just get on with considering the case. And if in the circumstances, including the best interests of any children affected, it is better for the claim to be decided here, the Home Office should get on and do it.
Amendments 18 and 22 to 24 take us to the current definition of “connection” to be introduced into law by clause 14. Amendments 23 and 24 remove from the Bill two circumstances in which it is currently said that a connection is sufficient for the purpose of the inadmissibility regime. Amendment 24 would remove what is termed “condition 5”, which is so vague as to be almost incomprehensible and allows the Secretary of State to decide that a connection has been established in an almost unlimited number of scenarios. There is reference to “the claimant’s particular circumstances” but no explanation of what is meant by that.
Amendment 23 takes out “condition 2”, so that a connection can be provided only by proper and full-blown refugee status in accordance with the convention, and not a substandard or pale imitation of it. Amendment 22 puts the full-blown refugee status as a possible connection in the clause.
Amendment 25 is similarly motivated. In short, if the making of an asylum claim in another country is to establish the connection necessary for an inadmissibility declaration, it must be the case that the protection status offered in that other country to a refugee is fully compatible with the 1951 UN refugee convention. Again, it is absolutely not enough for a substandard asylum regime to be in place, and it would be outrageous for the UK Government to say otherwise and to be seen to be tolerating the watering down of refugee rights across the globe.
All these amendments provide ways to fix the flaws in the scheme. We could also have tabled other amendments to fix the inability of anyone to challenge inadmissibility decisions on any grounds. The Government say that this is all about deterring onward movements from France and other neighbours, but the clause is drafted in a way to allow removal to any old regime, regardless of how they treat asylum seekers and refugees. That is not remotely good enough, so the Minister must accept the flaws in the drafting and engage with the UNHCR on changing them.
Bambos Charalambous (Enfield, Southgate) (Lab)
I speak in support of the Scottish National party amendments and against clause 14 standing part. Once again, we are faced with a draconian, punitive clause that we the Opposition believe risks putting vulnerable people in danger and depriving them of the protection that they deserve under international law. I will begin by setting out what clause 14 does. Again, I thank the many sector organisations that have helped us to analyse the likely impacts of the clause.
Clause 14 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 United Kingdom’s asylum system for a “reasonable period”—currently defined as six months by Home Office policy—while the UK seeks to transfer them to “any other safe country”.
Before getting to the extremely problematic moral and legal aspects of clause 14, I want to draw hon. Members’ attention to the unworkable practical aspects of it. Members know that the current regime is unworkable even as it stands because the UK Government do not have returns agreements with European Union member states, namely the “safe third countries” that refugees are most likely to have passed through. With the huge backlog and delays currently in the system, it is truly impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.
Any Member who is familiar with dealing with asylum cases will be only too familiar with cases that have dragged on for years and seemingly been lost in the system, and the many refusal cases that are overturned on appeal. The current system is not working and by adding extra time to it before a case can even begin suggests a huge increase in the processing backlog. As an ex-lawyer, I know that justice delayed is justice denied, and therefore I have grave reservations about the time stipulations in the clause.
To put the Government’s actions so far into greater context, it is worth noting that in the first six months after implementation of the inadmissibility provisions of the immigration rules—they are echoed in the statutory provisions we are currently considering—the asylum claims of more than 4,500 people were put on hold by the issuance of notices of potential inadmissibility. Incredibly, the UK sought to transfer only seven of those cases—seven out of 4,500. Surely that demonstrates that the concept of inadmissibility is deeply flawed, and that attempts to enforce it by statute, as currently envisaged in clause 14, are equally flawed.
To make matters even worse, the inadmissibility rules set out in clause 14 have a far broader reach than anything that has gone before. First, let us consider the clause’s reference to a “safe third country”. The clause creates a disturbingly low standard for when a state would be considered safe for a particular claimant. The criteria are that their
“life and liberty are not threatened there by reason of their race, religion, nationality, membership of a particular social group or political opinion.”
That state must be one from which “a person” will not be removed in breach of a non-refoulement obligation under the refugee convention or the European convention on human rights, and that “a person” may apply for refugee status there and, if recognised, receive protection in accordance with the refugee convention. According to clause 14, therefore, a country could still be considered safe even if the applicant had been, or perhaps continues to be, at real risk of being subjected to human rights violations in that country which either fall short of threats to life or liberty, or to which they were not exposed for reasons of a refugee convention ground.
Equally worrying is that, according to clause 14, although that safe state must be one in which in general a person “may” apply for refugee status and receive protection
“in accordance with the Refugee Convention” ,
it is not clear from the terms of the Bill that that possibility needs to be available to the particular applicant. Given the reference in the Bill to “a person”, it appears that it may be sufficient that, in general, there is the “possibility” of applying for refugee status in that state. That is hardly reassuring. In fact, it means that the supposed “safe” third country might not be at all safe for any particular individual. That surely makes a mockery of the term “safe” as commonly understood.
In addition, in order to be found to have a connection to a safe third state, the particular applicant need not have had a reasonable opportunity to access refugee status there. It is worth examining that in more detail. The terms of the clause imply that although the state would have to be one in which, in general, the possibility existed for a person to apply for refugee status, an individual claimant could be found to be inadmissible because they had received nothing more than protection against removal, in violation of the refugee convention or article 3 of the ECHR, or had made or had a reasonable opportunity to make a “relevant claim” for such protection in that state.
Furthermore, we need to look at the use of the term “connection” in clause 14. The clause makes it clear that the mere presence in a safe state where it would have been reasonable to expect the applicant to make a “relevant claim” would be sufficient to establish a “connection”. That in turn would be enough to trigger inadmissibility. Overall, the use of the term “connection” is nothing short of Orwellian. The framing of that term suggests that it could be an otherwise unelaborated connection—in other words, in the claimant’s particular circumstances, it would have been hypothetically reasonable for them to have gone to a given state to make such a claim, even if they had never been there.
Tom Pursglove
It is fair to say that the Committee had an extensive debate about this issue last week in relation to earlier clauses. I would refer the hon. Member to the comments read out in the Committee from a previous Bill Committee under the last Labour Government, where the principles we are talking about here were very firmly established and endorsed. They have underpinned the approach that has been taken on these matters under successive Governments in this country, and we continue to believe that they are applicable.
I wholeheartedly agree with the importance of the UK continuing to meet its obligations under the refugee convention, including through the rights that we provide to refugees in the UK. I understand the spirit of amendment 56 in defining a safe third state in a way that ensures that an individual removed to that country is provided with adequate protection and their individual rights as a recognised refugee under the refugee convention. However, the definition of a safe third state as set out in clause 14 already ensures that the principles of the refugee convention should be met if we are to remove an individual to that country.
Stuart C. McDonald
The term “the principles of the refugee convention” is vague. What do the Government mean by that?
Tom Pursglove
As we have repeatedly made very clear during the passage of the clauses we have already debated, our obligations are being properly upheld through the provisions of this Bill. We believe that the Bill is fully compliant, and I maintain that that remains the case. The approach is not new; it has been part of our previous legislation on safe countries. We will only ever return inadmissible claimants to countries that are safe, so I do not agree that the amendment is necessary.
Tom Pursglove
The hon. Gentleman says from a sedentary position that it is not a convincing argument. The bottom line is that we are not removing people to Afghanistan based on the current circumstances. I think that is the right approach.
The ability to return an individual declared inadmissible to any safe country, and not just the safe third country they have a connection to, has formed a part of our inadmissibility process since the changes to our immigration rules in December 2020. In seeking to remove that ability, amendment 19 would remove a provision that Parliament has already been provided an opportunity to scrutinise.
Stuart C. McDonald
We all know that there is no scrutiny with these things in any real sense, but that is not a justification for the change. On what possible grounds can a connection with a country A justify removal to country B? What is the point?
Tom Pursglove
Again, we have had extensive debates in Committee about the approach that the Government are seeking to take on these matters. We have to stop these dangerous, unacceptable crossings of the channel. We believe that the deterrent effect is very important.
Amendments 18 and 22 to 25, taken together, seek to narrow the meaning of whether we consider an individual to have a connection to a safe third country, and therefore whether it is appropriate to consider them inadmissible. If individuals have travelled via or have connections to safe countries where it is reasonable to expect them to have claimed asylum, they should do so, rather than making dangerous and unnecessary onward journeys to the UK.
We already have in place a well-established process, should it become clear that an individual cannot be returned to a safe country or if after a reasonable period no return agreement has been possible. Where that is the case, the individual’s asylum claim will be considered in the UK. The Bill provisions will not change that. Therefore, I do not agree that amendments 20 and 21 are required.
Agreements by a safe third country to accept an asylum seeker may not always be via a reciprocal arrangement. I believe it is right to also seek returns on a case-by-case basis where appropriate.
Tom Pursglove
The simple reality is that we will not return people to countries where to do so would put them in danger, or where their rights would not be respected and upheld. That is a perfectly correct approach to take, and entirely in line with what people would expect.
Tom Pursglove
I will give way, but I am very conscious that I want to make some progress.
Stuart C. McDonald
I absolutely accept that that is the Minister’s intention. He is not going to remove people; he is going to do all he can not to remove people to unsafe countries. The problem is: what about the next Minister responsible for immigration? As drafted, this definition of safe third state allows his successor to remove somebody to a place where they are at risk of serious human rights abuses, albeit falling short of a threat to life and liberty—it could be torture or whatever else, just as long as it is not a convention ground. I accept that the Minister is going to do the right thing, but we need a Bill that has proper constraints on the next Minister to come along, and that is not clear.
Tom Pursglove
The provisions, as drafted, define safe countries as states where people would not be at risk of persecution or a breach of their article 3 ECHR rights. The provisions are considered and consistent with our obligations under the refugee convention. An individual will have an opportunity to raise specific ECHR claims against removal under schedule 3 provisions.
I am confident that the measures in place are appropriate and sufficiently robust. We know it may not always be appropriate to apply inadmissibility to all claimants. Any oral or written representations from a claimant about why inadmissibility processes should not be applied in their case, including any connections they may have to the UK, will be considered ahead of any removal to a safe third country. However, if an individual has family in the UK, there are family reunion routes available. These amendments should not be used to circumnavigate those provisions. For those reasons, I do not support the suggested addition of proposed new section 80D in the Nationality, Immigration and Asylum Act 2002, under amendment 26, and I invite hon. Members not to press it to a Division.
Turning to the clause overall, an increasing number of people are risking their lives to get to the UK, using unseaworthy vessels, putting at risk not only their lives but those of the UK Border Force and rescue services. Those routes are often facilitated by criminal gangs, seeking to arrange those dangerous journeys for profit. We are determined to make the use of small boats to cross the channel an unviable option for reaching the UK. We are determined to send a clear signal that it is unacceptable for individuals to travel through multiple safe countries to then claim asylum in the UK.
To stop people risking their lives on those dangerous crossings, reduce the unsustainable pressure on the asylum system and protect those most in need, we must be clear that many of those coming to the UK by irregular means will not be admitted into our asylum system. Inadmissibility is a long-standing process, designed to prevent secondary movements across Europe, and these measures are being introduced to support that. People should claim asylum in the first safe country they reach, rather than make dangerous journeys to the UK to claim asylum here.
Tom Pursglove
Again, I refer back to the point that has been raised, which is that we will not return individuals to countries where they would be unsafe as a consequence. Of course we would look at cases on an individual basis and at the concerns that have been raised. If there are concerns, it is important that they are properly taken into account. I am confident that the approach we are taking addresses that issue.
We know, however, that it may not always be appropriate to apply inadmissibility to all claimants. For example, we will not apply those procedures to unaccompanied asylum-seeking children. The introduction of the clauses on inadmissibility aims to strengthen our position on inadmissibility, further disincentivise people from making those dangerous journeys, and encourage them to claim asylum in the first safe country they reach. Those who fear persecution should claim asylum in the first safe country they reach. Parliament has already had an opportunity to scrutinise the measures when they were placed in the immigration rules in December 2020.
Stuart C. McDonald
I just do not think that the significant legal questions that have been asked have been answered appropriately, and there are all sorts of questions about the safeguards around the description of a safe third state, so I want to press amendment 56 to a vote.
Question put, That the amendment be made.
The Chair
In his opening remarks the hon. Gentleman referred in some depth to clause 16 in addition to speaking to the amendment. I have no problem with that whatever, but I remind the Committee that you cannot have two bites of the cherry. In the light of the line that has been taken, I suggest that we treat this as a stand part debate as well. If anyone has anything to say, now is the chance.
Stuart C. McDonald
May I confirm, Sir Roger, that there are two groups of amendments to this clause?
Stuart C. McDonald
Thank you, Sir Roger. In relation to the first group, we fully support the shadow Minister and amendments 36 and 37, which would limit the range of applicants who might face those notices, including children survivors of trafficking and those who need protection because of gender-based violence or sexual orientation. Amendment 153 simply excludes a number of additional groups of people, including those suffering from mental ill health. The shadow Minister explained exactly why it can be very difficult to demand disclosure by certain deadlines from certain applicants. The same arguments apply in relation to our amendments. If we go down this route, there must be a recognition that disclosure of evidence for some can be an incredibly difficult process. How will that be taken into account?
Paul Blomfield
Taking account of your suggestion, Sir Roger, I wanted to make a few comments, although my hon. Friend the Member for Enfield, Southgate made a substantial contribution. We need to pay close attention to this clause and those that follow it, because they cut across a basic principle of English and Scottish law: the presumption of innocence until proven guilty. Underlying the clauses is an assumption of disbelief—everybody is playing the system. Of course, there are people who do, but we do not design our justice system on that assumption, nor should we design the asylum system on that basis.
Instead, we should look at the practical application, because as I said when I spoke to clause 10, we need to understand the journeys taken by those seeking refuge in our country as they flee persecution and conflict, and understand the trauma that led them to uproot themselves from their homes and the trauma that they experience on their journeys. That should give the Government serious pause for thought.
Clauses 16, 17 and 23 prejudice the system against survivors of violence, including sexual and gender-based violence, and reduce access to refugee protection. Clause 16 permits the Home Secretary to serve an evidence notice on a person who has made a protection of human rights claim, forcing them to provide evidence before a specified date. That needs to be looked at in terms of the consequences set out in clause 23 diminishing the weight of their evidence. We are returning to a theme here, because this is in conflict with the Home Office’s own asylum policy, which recognises that there are many good reasons why women who have survived sexual and other gender-based violence would be late in applying for asylum or in submitting evidence.
Let me quote the Home Office’s policy:
“There may be a number of reasons why a claimant, or dependant, may be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family ‘honour’, or fear of family members or traffickers, or having been conditioned or threatened by them…Those who have been sexually assaulted and or who have been victims of trafficking may suffer trauma that can impact on memory and the ability to recall information. The symptoms of this include persistent fear, a loss of self-confidence and self-esteem, difficulty in concentration, an attitude of self-blame, shame, a pervasive loss of control and memory loss or distortion.”
That policy—the policy of the Home Office—states that
“disclosure of gender-based violence at a later stage in the asylum process should not automatically count against their credibility.”
Yet that is precisely what the Government are trying to do in these clauses, in conflict with their own policy.
The Women for Refugee Women charity, which does extraordinary work supporting those fleeing gender-based violence, says:
“because there are so many legitimate reasons for why a woman who has survived gender-based violence may submit evidence late, we do not think there is a way in which these evidence notices can be implemented fairly in respect to these highly vulnerable individuals.”
Let me return to the Home Office’s own assessment of the proposals, which found that the Bill’s
“policies could indirectly disadvantage protected groups”,
such as
“children, disabled people and people who are vulnerable for reasons linked to other protected characteristics—including but not limited to gender reassignment, pregnancy and maternity, sexual orientation and sex.”
That disadvantage, which the Home Office has identified, to vulnerable people and victims of huge trauma and violence will be hardwired into our law by these clauses, so I urge the Government to withdraw them.
Tom Pursglove
I will develop my remarks a little further. I will come back to some of the points raised in the debate, but to start with I want to get through the rationale behind our thinking on the various amendments before the Committee.
Amendment 37 also fails to fully understand the remit of clause 16. The evidence notice applies solely to evidence in support of protection and human rights claims. The new slavery and trafficking information notice, covered in clause 46, will require a person to provide any information relevant to their status as a victim of modern slavery or trafficking.
On amendment 153, the Government take their responsibility towards those seeking international protection seriously. We recognise that particularly vulnerable claimants and survivors of modern slavery need to be treated with care, dignity and sensitivity. Individuals may be particularly vulnerable as a result of their age, their health, the experiences they have lived through or a range of other factors. It is because these factors can be so wide ranging that I am resisting this amendment.
Clause 16 and the new evidence notice will require those who make a protection or human rights claim to provide evidence in support of their claim before the date specified in the evidence notice. This clause works in parallel with clauses 17 and 23. Where evidence is provided late, claimants will be required to provide reasons for that. Where there are no good reasons for the late provision of evidence, this should result in damage to the claimant’s credibility, and decision makers must have regard to the principle that little weight should be given to that evidence.
By introducing a statutory requirement to provide evidence before a specified date, clause 16 will contribute to the swift resolution of protection and human rights claims, enabling decision makers to consider all the evidence up front and, where appropriate, grant leave. However, we recognise that it may be harder for some people to engage in the process. That may be as a result of trauma they have experienced, a lack of trust in the authorities, or because of the sensitive and personal nature of their claim. That is why clause 16, together with clauses 17 and 23, allows for good reasons why evidence might be provided late. As I say, what constitutes good reasons has not been defined in the Bill. It would be impractical to legislate for every case type where someone may have good reasons for not previously disclosing evidence in relation to their protection claim.
Stuart C. McDonald
Nobody is arguing for an exhaustive list, but if we are all agreed that these are examples of good reasons, why not include them as a non-exhaustive list, just to make sure that these people are protected?
The Chair
I have had no notification that amendment 153 is going to be pressed to a vote, but, in the spirit of the Committee’s operation, if the hon. Gentleman wishes to move it perhaps he would like to say so now.
Stuart C. McDonald
I thank you for your indulgence, Sir Roger.
Amendment proposed: 153, in clause 16, page 20, line 8, at end insert—
“(1A) The Secretary of State must not serve an evidence notice on a person—
(a) who has made a protection claim or a human rights claim on the basis of sexual orientation, gender identity, gender expression or sex characteristics;
(b) who was under 18 years of age at the time of their arrival in the United Kingdom;
(c) who has made a protection or human rights claim on the basis of gender-based violence;
(d) who has experienced sexual violence;
(e) who is a victim of modern slavery or trafficking;
(f) who is suffering from a mental health condition or impairment;
(g) who has been a victim of torture;
(h) who is suffering from a serious physical disability;
(i) who is suffering from other serious physical health conditions or illnesses.”—(Stuart C. McDonald.)
This amendment would prevent the Secretary of State from serving an evidence notice on certain categories of people.
Question put, That the amendment be made.
Stuart C. McDonald
I rise to speak to amendment 27, in clause 16, page 20, line 9, leave out “requiring” and insert “requesting”.
Under this amendment, evidence notices would “request” (rather than “requiring”) the provision of supporting information for a protection or human rights claim.
The Chair
With this it will be convenient to discuss the following:
Amendment 28, in clause 16, page 20, line 14, leave out “must” and insert “may”.
This amendment would remove the obligation for applicants to provide supporting information for a protection or human rights claim.
Amendment 40, in clause 18, page 22, line 4, leave out “requiring” and insert “requesting”.
Under this amendment, priority removal notices would “request” rather than “require” the recipient to provide information.
Stuart C. McDonald
We have had an extensive debate on these clauses, so I can be brief. Amendment 27 would cast the evidence notices that we have just debated in the form of a request, rather than a requirement. Amendment 28 would mean that an explanation for late evidence could be provided, rather than it being mandatory, so that we were explaining these rights and responsibilities instead of imposing inappropriate penalties. Amendment 40 would provide for similar changes to the priority removal notices instituted by clause 18.
The previous debate was essentially about whether those notices should extend to various groups of people, but in this group of amendments we are attempting to challenge the principles behind them.
Like other hon. Members, we agree that this is just a rehash of the one-stop process, which will achieve little and risk harm to claimants who need refugee protection. It is a distraction from the real issues that the Home Office needs to get a grip of. People who are at risk of persecution are generally desperate to provide evidence if they can, and if they are aware of and understand the processes that they are involved in. There is no advantage to them in providing evidence late, but there are often very good reasons why that happens. On the other hand, if evidence is provided late, it is still ultimately going to have to be looked at; if it proves someone is a refugee, it will have to be recognised, so it is time for the Home Office to get on with fixing the real problem in the asylum system, which is the appalling delays and backlogs in that system. That is why we have tabled these amendments. However, rather than putting them to a vote, I beg your leave to withdraw them, Sir Roger. I will vote against the clause standing part instead.
The Chair
That is unusual. The amendment cannot be withdrawn, because it has not been moved.
Question put, That clause 16 stand part of the Bill.
Stuart C. McDonald
I beg to move amendment 39, in clause 17, page 20, line 22, at end insert—
‘(1A) For subsection (1) substitute—
In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or human rights claim, a deciding authority shall take into account any behaviour to which this section applies.”
This amendment would mean that – whilst attempts to conceal information, mislead, or delay the processing of a claim would still be taken into account – it will be for the deciding authority to assess what impact this has on the claimant’s credibility.
Section 8 of the Asylum and Immigration 2004 is hugely controversial, both on a point of principle and in its practical effect. It tells decision makers, whether at the Home Office or an independent judge, that if an applicant behaves in a certain way that must be taken as damaging their credibility. Clause 17 adds to the list of behaviours.
Amendment 39 would take us back to the point of principle by saying it is not for Parliament to tell decision makers, judges of fact, what to think about evidence that they have seen and we have not. Are the Government saying that they do not trust them to do their job properly? If we take a step back, the clause would represent the Home Office using legislation to tell decision makers what to think about evidence, in a dispute that it is party to itself. In that light, it is an outrageous principle.
The amendment would mean that those decision makers are asked to take into account the behaviour, rather than being told what to think about it. It is up to them to decide what they should read into late provision of evidence. What if the late provision of evidence is not the claimant’s fault? What if the lawyer made the mistake? What if a medical expert took too long to finalise a report? Ultimately, decision makers have to decide whether the person is at real risk of persecution. If late evidence provides compelling proof of that, they need to be recognised as refugees. Again, get on with fixing decision-making times and quality. From the point of view of principle, we should leave decision makers to weigh up the evidence themselves, without direction from legislators. It is as simple as that.
The Chair
I remind the Committee that this will also be considered a clause stand part debate.
Tom Pursglove
Thank you, Sir Roger. I want to pick up on a couple of other points that were raised in responding to amendment 39. I should clarify that clauses 17 and 23 do not apply to consideration of modern slavery referrals. Claims are considered holistically, and credibility is not by itself determinative of a claim. It is important to emphasise that point. The hon. Member for Enfield, Southgate raised the case of Gloria. Obviously, I am mindful of talking about individual cases because of the difficulties associated with that, as I am sure that he will appreciate, but clauses 17 and 23 do not prevent someone from providing late evidence. Late evidence will still be considered in full. Where there are good reason for lateness, a person’s credibility will not be damaged and clause 23 will not apply. I wanted to provide clarity on that point. With that, I ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw amendment 39, and that the Committee agree that clause 17 stand part of the Bill.
Stuart C. McDonald
As a point of principle, I object to Parliament telling decision makers what to think, but having made my point I am happy to leave it there for now, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That clause 17 stand part of the Bill.
Nationality and Borders Bill (Tenth sitting)
Stuart C McDonald ExcerptsTuesday 26th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 October 2021 - (26 Oct 2021)
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.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairship again, Ms McDonagh. As the hon. Member for Sheffield Central said, clause 20 instructs decision makers to take into account
“as damaging the PRN recipient’s credibility…the late provision”
of information and evidence. I absolutely support the hon. Gentleman’s amendment to explore “good reasons” for evidence, including post-traumatic stress. Our amendment 154 provides other examples, such as mental health issues or where a person has been a victim of torture or other crimes that can impact on their ability to provide information. That is similar to debates we have already had.
Amendment 41 revisits earlier arguments about taking into account all the evidence, including lateness in providing it, when assessing a case. It is not appropriate to tell decision makers what conclusions to draw. We say decision makers will often find people to have credibility if lots of new information is provided with respect to that explanation. That is a matter that should be left to them. It is not for parliamentarians to tell decision makers how to analyse claimants.
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.
Stuart C. McDonald
I beg to move amendment 155, in clause 21, page 24, line 21, at end insert—
“(2A) The Secretary of State must accept that there are good reasons for P making the claim on or after the cut-off date where—
(a) the PRN recipient’s protection or human rights claim is based on sexual orientation, gender identity, gender expression or sex characteristics;
(b) the PRN recipient is suffering from a mental health condition or impairment;
(c) the PRN recipient has been a victim of torture;
(d) the PRN recipient has been a victim of sexual or gender based violence;
(e) the PRN recipient has been a victim of human trafficking or modern slavery;
(f) the PRN recipient is suffering from a serious physical disability;
(g) the PRN recipient is suffering from other serious physical health conditions or illnesses.”
This amendment defines ”good reasons” for the purposes of section 82A(2) of the Nationality, Immigration and Asylum Act 2002 (as inserted by this Bill).
If someone makes a protection claim after the PRN cut-off, then unless the Secretary of State is satisfied there are good reasons, she must certify the appeal right and it will be subjected to an expedited appeal straight to the upper tribunal. Tribunal procedure rules, then, must make provision for this. If it is in the interests of justice for an appeal not to be expedited, the tribunal may order that it is no longer subject to that process. This, too, prevents any onward appeal.
In the next debate I will set out our opposition to the clause as a whole, but amendment 155 sets out a situation where the Secretary of State must accept there has been a reasonable excuse, similar to before. It would surely be wrong to subject survivors of human trafficking, or gender-based violence or torture—to use but three examples—to an accelerated appeal, simply on the grounds that they were late making a claim in response to a PRN. We have heard very powerful reasons already today, including in Home Office guidance, why that can be an incredibly difficult process.
I suspect the Minister will again reject this amendment on the same grounds as before, but it is at least useful for him to state on record that these are the types of claimant that he envisages should not be pushed through any accelerated appeal process. I will listen carefully to what he has to say in that regard.
Tom Pursglove
I thank the hon. Gentleman for tabling amendment 155, which seeks to define good reasons for the purposes of proposed new section 82A(2) of the Nationality, Immigration and Asylum Act 2002. I appreciate the concerns this amendment is attempting to address but the Government must oppose it. The amendment would result in all individuals who meet any of the descriptors listed being exempt from the expedited appeal process, even where their reason for lateness may be completely unrelated and make redundant any need to submit a claim by the date specified in the PRN.
I acknowledge that the experiences and circumstances listed in the amendment can inform why a person has made an application late. However, the duty on the Secretary of State will see all and any reasons for lateness being considered. Guidance for decision makers will be published and made available when these measures come into force. For that reason, I invite the hon. Member to withdraw his amendment.
Stuart C. McDonald
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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.
Stuart C. McDonald
I agree with everything the shadow Minister said. I want to speak in support of amendment 42, which would preserve onward rights of appeal in certain circumstances.
The overall danger of clause 21 is that it risks expediting appeal processes so that mistakes are made and people are denied justice. Given the dangers that are posed by speeding up such processes, it is all the more important that there is access to the supervisory jurisdiction of the higher courts in case errors are made. We are not talking about minor issues; these are matters of life and death. Assessments have been made about a risk of persecution. Errors will have catastrophic consequences for individuals concerned.
All tribunals make mistakes, so in such circumstances, it seems reckless not to have any right of appeal. I absolutely accept that there can be restrictions and that the grounds for such an appeal can be phrased in a way to try to prevent abuse, but to exclude it altogether goes way beyond what can be justified. Expedited appeals without any possibility of onward appeals creates a double danger of getting those decisions wrong. The fact that claims are made late does not remotely mean that they are necessarily without merit, nor does it mean that they can be decided any quicker than another claim and it should not automatically lead to accelerated appeals processes.
Again, I think that all this is missing the point. The tribunal was actually functioning pretty well. It is the Home Office that has to focus on getting its house in order, and the whole clause is completely misconceived.
Amendment 67 agreed to.
Amendments made: 68, in clause 21, page 24, line 28, after “be” insert “brought and”.
See the explanatory statement for Amendment 67.
Amendment 69, in clause 21, page 24, line 32, leave out from “is” to end of line 33 and insert
“to be continued as an appeal to the First-tier Tribunal and accordingly is to be transferred to that Tribunal”.—(Tom Pursglove.)
This amendment is a drafting amendment to clarify that where the Upper Tribunal is satisfied that it is in the interests of justice to do so it has power to order that an expedited appeal is instead to be heard subject to the usual procedure by the First-tier Tribunal.
Amendment proposed: 42, in clause 21, page 24, line 37, leave out subsection (2). —(Stuart C. McDonald.)
This amendment would protect the right to an onward appeal from an expedited appeal decision by the Upper Tribunal in certain cases.
Question put, That the amendment be made.
Tom Pursglove
The hon. Member is seeking to extend the provision we are proposing in the Bill. We are very clear that the clause makes the legal advice available to those who have been served with priority removal notices. We do not propose to extend the offer beyond that. However, I will make sure that his concerns are flagged with ministerial colleagues in the Ministry of Justice.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23
Late provision of evidence in asylum or human rights claim: weight
Stuart C. McDonald
I beg to move amendment 43, in clause 23, page 26, line 38, leave out subsection (2) and insert—
“(2) Where subsection (1) applies, the deciding authority must have regard to the fact of the evidence being provided late and any reasons why it was provided late in considering it and determining the claim or appeal.”
This amendment would remove the provision which states that “minimal weight” should be given to any evidence provided late.
The Chair
With this it will be convenient to discuss the following:
Amendment 38, in clause 23, page 26, line 40, at end insert—
“(2A) Subsection (2) does not apply where—
(a) the claimant’s claim is based on their sexual orientation or gender identity; or
(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom.”.
This amendment would remove the direction to the deciding authority to give minimal weight to evidence provided late in cases where an asylum claim or human rights claim is based on issues of sexual orientation or gender identity; or where the claimant was under 18 when they arrived in the UK.
Amendment 131, in clause 23, page 26, after line 40, insert—
“(2A) The deciding authority must accept that there are good reasons why the evidence was provided late where—
(a) the claimant’s claim is based on sexual orientation, gender identity, gender expression or sex characteristics;
(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom;
(c) the claimant’s claim is based on gender-based violence;
(d) the claimant has experienced sexual violence;
(e) the claimant is a victim of modern slavery or trafficking;
(f) the claimant is suffering from a mental health condition or impairment;
(g) the claimant has been a victim of torture;
(h) the claimant is suffering from a serious physical disability;
(i) the claimant is suffering from other serious physical health conditions or illnesses.”
This amendment sets out the circumstances where the deciding authority must accept that there were good reasons for providing evidence late.
Amendment 44, in clause 23, page 27, line 13, at end insert—
“(6B) This section does not apply where the evidence provided proves that a claimant is at risk of persecution by the Taliban.”
This amendment would disapply Clause 23 (under which minimal weight is given to any evidence provided late) in respect of claimants who are at risk of persecution by the Taliban.
Clause stand part.
Stuart C. McDonald
The clause is similar in nature to clauses we have debated already, and most of the amendments address similar issues. It is about penalties for providing evidence after a specified cut-off date. Amendment 43 makes the point, again, that we regard it as legitimate to ask a decision maker to take account of the fact that evidence was provided late and the reasons for that, but it should not tell a decision maker what to conclude. We have also added our names in support of amendment 131, which seeks to ensure an acknowledgement of how difficult the process of the provision of evidence can be for certain categories of claimant, and the inappropriateness of fixing hard and fast deadlines.
Tom Pursglove
I thank hon. Members for raising these important issues. We all recognise that young or particularly vulnerable claimants, sufferers of trauma such as sexual violence or ill-treatment on account of their sexual orientation or gender identity, and survivors of modern slavery or trafficking need to be treated with care, dignity and sensitivity. It is important that they are able to participate fully in the asylum process so that, in the case of a genuine applicant, their claim for protection can be recognised and their status settled at the earliest opportunity. That is in the best interests of the claimant and the overall functioning of the asylum system.
At the same time, we recognise that it may be harder for some people to engage in the process. That may be because of their past experiences, because of a lack of trust in the authorities or because of the sensitive and personal nature of their claim. That is why clause 16, together with clauses 17 and 23, provides for good reasons why evidence might be provided late. What constitutes “good reasons” has not been defined in the Bill, because to do so would limit the discretion and flexibility of decision makers to take factors into account on a case-by-case basis. It would be impractical to legislate for every case type where someone may have good reasons for not previously disclosing evidence in relation to their protection claim.
Good reasons may include objective factors such as practical difficulties in obtaining evidence—that may be where the evidence was not previously available, or where an expert report is not available. Good reasons may also include subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental health. Decision makers, including the judiciary, will be better placed to identify and assess those factors on an individual and case-by-case basis.
Amendment 43 would effectively remove the minimal weight principle; it would disapply the requirement for a decision maker to have regard to the principle that minimal weight should be given to late evidence for two categories of people. The amendments fail to take into account the fact that decision makers will have discretion in how they apply the principle that minimal weight should be given to late evidence, and that they may choose not to apply the principle in any given case. Clause 23 does not create a provision whereby decision makers are required to give late evidence minimal weight; they are required only to have regard to the principle, which they can choose to disregard.
Amendment 131 would place a statutory obligation on decision makers to accept that there are good reasons for late evidence where an individual’s claim is based on certain factors, or the individual falls into a particular category. That would apply to Home Office decision makers as well as the judiciary. Compelling a judge to accept good reasons for late evidence based solely on the grounds of the person’s claim raises significant issues and interferes with their fact-finding role. It also ignores the possibility that a claim may fall within a particular category or a person may identify as one of the listed categories, but their evidence may be late for unrelated reasons. The amendment would therefore create a blanket acceptance of late evidence in specific prescribed circumstances, and yet a vulnerable individual who did not fall within the specified groups might have late evidence and face a different test for whether or not they have good reasons. We feel that is unfair.
On amendment 44, this country has a proud history of welcoming with open arms those who require its protection. That includes circumstances where, as in Afghanistan, a significant change in circumstances means a sudden shift in a country’s security situation. Where evidence is brought late on account of such a change, that is clearly capable of falling within the “good reasons” consideration, so there is no need to make specific provision in relation to a fear of the Taliban.
Stuart C. McDonald
But what would happen in the hypothetical example I gave, where there was not good reason? The guy was a bit stubborn and did not think he should have to go through this process; he thought he should have had some automatic leave. I am still at a loss to understand what it means for the decision maker to have regard to the principle that minimal weight should be given to the evidence. I do not understand the expression. How does that work in the context of the hypothetical example I gave?
Tom Pursglove
I will come back to that point and try to give the hon. Gentleman some further clarity, which I hope will be helpful. I will make the point again that, in the current circumstances that we find ourselves in regarding Afghanistan, people are not being removed there.
Of course, all the relevant information is taken into consideration when reaching decisions on individual cases. For example, if there is an assessment that a particular country is safe but for a particular individual there are grounds whereby it is not safe for them in their circumstances, that is reflected in the decisions that are taken.
To finish the point about amendment 44, it would create a system where those with a fear of the Taliban were treated differently from all other asylum seekers, no matter the risks they faced or the vulnerabilities of the individuals involved, simply on the basis of where they were from. That is discriminatory and cannot be right.
On the point about how decision makers can be told that they must apply minimal weight to evidence, clause 23 does not create a requirement for Home Office decision makers or the judiciary to give late evidence, following the receipt of an evidence notice or a priority removal notice, minimal weight. In protection and human rights claims, decision makers must have regard to the principle that minimal weight will be given to any late evidence, but they can consider the principle and determine that it should not be applied in a particular case.
Tom Pursglove
I am not familiar with the review to which he refers, but the hon. Gentleman will appreciate that I have been in this role only for the past four weeks. However, I will go away and look into that.
I can only repeat the point that we will set out in guidance the relevant factors that will be taken into consideration when cases are determined. I would expect there to be sympathetic consideration of people’s individual circumstances. I have also made that point at the Dispatch Box when we have talked about the operationalisation of the policy. Of course, it is right that that information is established in full. With that, I encourage the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw his amendment.
Stuart C. McDonald
I am grateful to the Minister for his answer. At points, he did sound almost reassuring, but the problem is that he sounds reassuring when he says, essentially, “This clause will not have any effect,” suggesting that decision makers will be able just to have regard to all the circumstances on a case-by-case basis. That is what decision makers do anyway without the need for this myriad of statute provisions telling them what to think about a, b, c and the weight to be applied to evidence here, there and everywhere. While I take at face value his intention—I think we probably intend the same thing—that my Afghan example would not end up with conclusive evidence being disregarded because the man was stubborn or behaved in a stupid way because he was at risk, I still find the wording in the clause troubling. I hope the Home Office will think again.
In the meantime, we have pressed similar amendments to a vote, so I do not need to do so again. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 131, in clause 23, page 26, after line 40, insert—
“(2A) The deciding authority must accept that there are good reasons why the evidence was provided late where—
(a) the claimant’s claim is based on sexual orientation, gender identity, gender expression or sex characteristics;
(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom;
(c) the claimant’s claim is based on gender-based violence;
(d) the claimant has experienced sexual violence;
(e) the claimant is a victim of modern slavery or trafficking;
(f) the claimant is suffering from a mental health condition or impairment;
(g) the claimant has been a victim of torture;
(h) the claimant is suffering from a serious physical disability;
save-line2(i) the claimant is suffering from other serious physical health conditions or illnesses.”—(Bambos Charalambous.)
This amendment sets out the circumstances where the deciding authority must accept that there were good reasons for providing evidence late.
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 45, in clause 24, page 28, leave out lines 9 to 11.
This amendment would remove the requirement for detainees to give their notice of appeal within 5 working days.
The Chair
With this it will be convenient to discuss the following:
Amendment 46, in clause 24, page 28, line 22, leave out “may” and insert “must”.
This amendment would require (rather than merely empower) the Tribunal or the Upper Tribunal to cease to treat cases as accelerated detained appeals where it is in the interests of justice to do so.
Clause stand part.
Government new clause 7—Accelerated detained appeals.
Stuart C. McDonald
Clause 24 establishes a system of fast-track appeals for those in detention. The explanatory notes state that in 2019-20 it took almost 12 weeks on average for detained immigration appeals to progress from receipt in the first tier tribunal through to disposal, and the aim is for faster decisions in certain cases
“to allow appellants to be released or removed more quickly”.
That sounds almost benign, and who does not want appeals to take place as quickly as possible? But the key issue is whether they can be decided fairly within the timeframe set down in the clause. We are talking not about trying to take three or four weeks off the average time, but about reducing it by almost three quarters. Clearly, the Government believe that the tribunal is wasting a lot of time but I do not see any evidence for that, and I do not see any analysis of why that 12-week average exists.
Five days is an incredibly short timeframe in which to launch an appeal, particularly when a person is detained in an immigration detention facility, often in the middle of nowhere, and where the chances of securing proper legal advice and consultation in that time are incredibly slim. Amendment 45 would delete that requirement.
Amendment 46 would also mean that the tribunal would be required to stop treating an appeal as an accelerated appeal if it was in the interests of justice to do so. Again it is not clear to us why the tribunal should be empowered to continue an accelerated appeal when that is not in the interests of justice. More generally, the clause gives rise to the question of why the Secretary of State should have any say in which appeals can be disposed of expeditiously. Why is she not required just to assess the fairness of a case or give consideration to how complex a case is? Why not leave the tribunal to make those determinations? It would be far better placed to make that assessment.
As Members will know, in 2015 the Court of Appeal found similar rules to be unlawful and held that they created a system in which asylum and human rights appeals were disposed of too quickly to be fair. The Court said that the timetable was
“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.
It also said that the policy did not appreciate the problems faced by legal representation obtaining instructions in such cases or the complexity or difficulty of many asylum appeals, and the gravity of the issues raised by them. I have absolutely no reason to think that the proposed policy is any better than that one.
The Government now intend to replace the entire clause with new clause 7, principally it seems to expand the categories of appeal that could be subject to the proposed procedure. My party opposes that expansion and opposes the clause.
Bambos Charalambous
We oppose the clause. It seeks the return of the detained fast-track system and to recreate it in primary legislation. The clause imposes a duty on the tribunal procedure rules committee to make rules for an accelerated timeframe for certain appeals made from detention that are considered suitable for consideration within that timeframe.
In the explanatory notes, an accelerated detained appeal is defined as being
“an appeal brought by an appellant who…received a refusal of their asylum claim while in detention…remains in detention under a relevant detention provision…is appealing a decision which was certified by the Secretary of State as suitable for an accelerated detained appeal”.
That system previously existed but was found to be illegal by the High Court in a landmark case brought by Detention Action. The system was found to be unfair as asylum and human rights appeals were disposed of too quickly to be fair. 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 also emphasised, perhaps instructively for this Committee, that speed and efficiency must not trump justice and fairness—something of a feature of part 2 of the Bill. Indeed, hundreds if not thousands of cases have had to be reconsidered by the Home Office or the tribunal because they were unfairly rushed through the process that the Government now seek to recreate. Those cases include survivors of trafficking and torture and other individuals who, on the basis of a rushed and unfair procedure, will have been removed to places where they fear persecution or are separated from their families. There was no adequate system for ensuring that such people were removed from the fast track and given a fair opportunity to present their claims.
Despite that background, the Bill aims to create this unjust and ineffective procedure by reintroducing the detained fast-track process through this clause. It will put that same system, which was deemed unlawful in 2015, on a statutory footing, which will insulate it against future legal challenges.
The clause provides for the Secretary of State to certify a decision if she considers that an appeal would be disposed of expeditiously. It requires the tribunal procedure committee to introduce the following time limits: a notice of appeal must be lodged no later than five working days after the decision was received; the tribunal must make a decision no later than 25 days after the appeal date; and an application for permission to appeal to the upper tribunal must be determined by the first-tier tribunal not later than 20 working days after the applicant was given notice of the tribunal’s decision.
The clause would deny access to justice. First, five days is insufficient to prepare an appeal against a negative decision, particularly where the individual is detained and where their access to legal advice is poor and an individual’s wellbeing may be affected by their detention. For those detained in prison, the situation is even worse. For example, in a case in February of this year, the High Court declared the lack of legal aid immigration advice for people held under immigration powers to be unlawful. More widely, Home Office decision making is frequently incorrect or unlawful. As we know, half of all appeals against immigration decisions were successful in the year leading up to June 2019. It is therefore vital that people are able to effectively challenge decisions through the courts.
The detained fast track is unjust. It is also unnecessary. As the Public Law Project and Justice have pointed out, the tribunal has adequate case management powers to deal with appeals expeditiously in appropriate cases and already prioritises detained cases. The Home Secretary should not be trying to force the hand of the independent tribunal procedures committee to stack the cards in her favour in appeals against her decisions. The Bill does not learn the lessons of the past and seeks to resurrect an unworkable system of accelerated detained appeals. The clause proposes that the appeals process be fast-tracked. I am very worried that provisions in part 2 of the Bill will therefore disadvantage the most vulnerable.
By allowing the Home Secretary to accelerate appeals when she thinks they would be disposed of expeditiously, the clause is clearly unjust. Once again, it also seems to violate the refugee convention. As my hon. Friend the Member for Warwick and Leamington (Matt Western) said on Second Reading:
“It is more than regrettable that the convention appears now to be held in such little regard by this Government.”—[Official Report, 19 July 2021; Vol. 699, c. 769.]
For those reasons, we will oppose that the clause stand part.
Tom Pursglove
I understand the motivation behind amendment 45. However, the Government oppose the amendment, as it is contrary to our policy intention and would undermine the effective working of the accelerated detained appeals process.
The period of five working days strikes the right balance, achieving both speed and fairness. The detained fast-track rules put in place in 2003 and 2005 allowed only two days to appeal. The 2014 rules set the same time limit. The current procedure rules allow a non-detained migrant 14 days to lodge their appeal against a refusal decision.
On amendment 46, I can assure hon. Members that it is not necessary, as the Bill already achieves the objective sought. The Government’s aim is to ensure that cases only remain in the ADA where it is in the interests of justice for them to do so. The consideration of what is in the interests of justice is a matter of judicial discretion. Where a judge decides that it is not in the interests of justice to keep a case in the ADA process, we would expect that they would use their discretion to remove the case. The current wording of the Bill—“may” rather than “must”—is consistent with the drafting of the rules that govern all appeals considered in the immigration and asylum chamber.
For these reasons, I invite the hon. Member for Enfield, Southgate to withdraw the amendments. On the detained fast track and wider points about the Government’s intentions, although the courts upheld the principle of an accelerated process for appeals made in detention, we have considered the legal challenges to the detained fast track carefully. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. All Home Office decisions to detain are made in accordance with the adults at risk in detention policy and reviewed by the independent detention gatekeeper. Changes made to the screening process, drawing on lessons learned, will enable us to identify appellants who are unsuitable for the accelerated detained appeals route at the earliest opportunity. Suitability will be reviewed on an ongoing basis and the tribunal will have the power to transfer a case out of the accelerated route if it considers that that is in the interests of justice to do so.
The timescales proposed for the accelerated route are longer than under the previous detained fast track. Appellants will have more time to seek legal advice and prepare their case. We are confident that the new route will provide sufficient opportunity to access legal advice. I am also conscious that Members are interested in what happens in the eventuality that a migrant misses the deadline to appeal a refusal decision. Provided that there are no other barriers to return, removal will be arranged. It is open to a migrant and/or their legal representatives to submit an appeal after the deadline and ask a judge to extend the time and admit the appeal late.
On new clause 7, the Government are committed to making the asylum appeals system faster, while maintaining fairness, ensuring access to justice and upholding the rule of law. In particular, it is right that appeals made from detention should be dealt with quickly, so that people are not deprived of their liberty for longer than is necessary. New clause 7 sets out a duty on the tribunal procedure committee to make rules for the provision of an accelerated detained appeals route. That will establish a fixed maximum timeframe for determining specific appeals brought while an individual is detained.
Currently, all immigration and asylum appeals are subject to the same procedure rules. Appeals involving detained appellants are prioritised by Her Majesty’s Courts and Tribunals Service but there are no set timeframes. It often takes months for detained appeals to be determined, resulting in people being released from detention before their appeals are concluded.
Changes to procedure rules are subject to the tribunal procedure committee’s statutory consultation requirements and procedures. However, the Government’s intent is to ensure that straightforward appeals from detention are determined more quickly. Under a detained accelerated process all appellants will benefit from a quicker final determination of their immigration status, spending less time in limbo, and getting the certainty they need to move forward with their lives sooner.
Those whose appeals are successful will have their leave to remain confirmed earlier than if the standard procedure rules had been followed. Meanwhile those with no right to remain will be removed more quickly, as they can be detained throughout the process, which reduces the risk of absconding.
The courts have been clear in upholding the principle that an accelerated process for asylum seekers while detained, operated within certain safeguards, is entirely legal. I made that point earlier. We have considered the legal challenges to the previous detained fast track carefully and we are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. We will ensure, through regulations and guidance, that only suitable cases will be allocated to the accelerated route. Cases will be assessed for whether they are likely to be able to be decided fairly within the shorter timeframe, and individuals will be screened for vulnerability and other factors that may impact their ability to engage fairly with an accelerated process.
As an additional safeguard, the clause makes it clear that the tribunal can decide to remove cases from the accelerated route if it considers it is in the interests of justice to do so. The new accelerated detained appeals route will contribute significantly to the timeliness with which appeals are decided for those in immigration detention. It will allow us to swiftly remove from the country people found not to need protection, while those with valid claims can be released from detention more quickly.
Stuart C. McDonald
I am grateful to the Minister for his response. I still have serious concerns about the provisions in the clause, particularly the short timeframe of five days to launch an appeal, and particularly when it could be the Secretary of State who has decided somebody has to go through that process. If she gets that decision wrong, by the time there is any ability to apply to the tribunal to move away from the fast-track process, it could be too late. In that case, a removal attempt will have been made, and a vulnerable person who was unable to contact a solicitor in time is completely without any chance of rectifying what the Secretary of State has done.
I maintain my opposition to what is proposed. I think that the safeguards fall way short, but I do not see any point in putting my amendment to a vote, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
I will now put the question that clause 24 stand part. I understand that the Government will vote no.
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.
Stuart C. McDonald
Is schedule 3 confined to applicants who arrive via irregular and dangerous routes, or could it be applied, in theory, to pretty much anyone who is claiming asylum?
Tom Pursglove
If I may, I will set out the detail that underpins schedule 3 in the course of my remarks.
Clause 26 is designed to be part of a whole-system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise. Under current policy, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative and, in some cases, unfounded article 3 human rights claims.
Consequently, schedule 3 will also introduce a presumption that specified countries are safe, because of their compliance with obligations under article 3 of the European convention of human rights.
Stuart C. McDonald
The Minister has scuttled over the idea that the Government are keen to abide by their international obligations. The UNHCR is absolutely clear that the clause rides a coach and horses—I paraphrase slightly—through the convention. Can he say a little bit more about how he possibly believes that this is consistent with what the refugee convention provides?
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.
Stuart C. McDonald
The Minister keeps referring to safeguards in the Bill and consideration of individual applicants’ safety, but none of that is in schedule 3, which does not require a finding of inadmissibility or a connection with the state. There is no consideration of the reasonableness of the transfer. The country might not even be a signatory to the refugee convention or offer refugee protection or the chance to secure the full rights that refugees are entitled to. Will he talk us through the safeguards?
Tom Pursglove
I would argue that I have already set out those safeguards.
The Government are clear that we must consider all options to break the business model of people smugglers and prevent people from putting their lives at risk by making perilous journeys from safe countries. Changes in schedule 3 are a key component of the wholescale system reform that we are committed to undertaking to prevent irregular migration. For those reasons, I ask hon. Members not to press amendment 159.
On schedule 3, the Government have been clear that the fastest route to safety is to claim asylum in the first safe country reached. We must dissuade all those considering making dangerous journeys to the UK to claim asylum. We are working closely with international partners to fix our broken asylum system and are discussing how we could work together in the future.
Tom Pursglove
No, I am going to make some progress because I am conscious that we have still got some way to go.
Schedule 3 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 be processed. It amends existing legal frameworks to support our future objective to transfer some asylum claims to a safe third country for processing. 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. We aim to disincentivise people from seeking to enter the UK by dangerous means facilitated by these criminal smugglers with a clear message that those arriving via an irregular route may be eligible to be transferred to another safe country not of their choosing to be processed.
Stuart C. McDonald
I just do not understand why the Minister tries to suggest that the provision will apply only to people who are not in genuine need. The Government do not know that because they are not looking at the cases before removing them to a third country. How is he circumscribing those who will be subject to this procedure, which we utterly oppose? How can he keep on saying that it will apply only to those who do not have genuine need?
Tom Pursglove
Schedule 3 is designed to be part of a whole system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise. Under current policy, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative, and in some cases unfounded, article 3 human rights claims. Consequently, schedule 3 will also introduce a presumption that specified countries are safe, due to them being compliant with their obligations under article 3 of the ECHR. Claimants will be required to present strong evidence to overturn that presumption to prevent removal. This will support the aim to swiftly remove individuals who have no basis to remain in the UK by preventing unnecessary delays where speculative article 3 claims are made prior to removal to safe countries.
Schedule 3 will also provide the Secretary of State with a power to add countries to the safe list—that is in addition to the already held removal power. This will ensure that the list of safe countries remains accurate. The schedule also ensures that rights of appeal are not afforded to asylum seekers on the basis of removal to safe countries nor to clearly unfounded human rights claims, thus preventing unnecessary appeals for unsubstantiated claims.
We are committed to upholding our international obligations, including under the 1951 refugee convention. That will not change. While people are endangering lives making perilous journeys, we must fix the system to prevent abuse of the asylum system and the criminality associated with it. Our aim is that the suite of measures contained within this Bill, including those within schedule 3, will disincentivise people from making dangerous journeys across Europe to the UK and encourage people to claim asylum in the first safe country they reach.
I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for proposing new clause 18, which introduces new schedule 2. I agree wholeheartedly with the importance of ensuring the safety of those who are removed from the UK to third countries. However, we cannot support the proposals, which seek to limit our ability to remove individuals to a safe country. This Government have made our position clear throughout today’s debate: people should claim asylum in the first safe country that they reach. That is the fastest route to safety. I would like the Committee to consider each of the conditions in new schedule 2 in turn.
Stuart C. McDonald
I will speak briefly in support of amendment 159, new clause 18 and new schedule 2.
I echo everything the shadow Minister said. This is a terrible clause. I echo in particular all that he said about Australia. I take a tiny crumb of comfort from the fact that the Minister, despite the Home Office’s having adduced evidence in relation to the Australian example, did not mention it during his speech. Perhaps the Home Office is learning that it should run a million miles from the Australian offshoring scheme, because it was awful.
I did not recognise the clause from what the Minister said. He kept referring to safeguards and asserting that it was absolutely consistent with our international obligations. My reading of schedule 3 and clause 26 is the polar opposite. Schedule 3 drives a coach and horses through the principle that people cannot be removed while they have a claim outstanding. It allows removal to anywhere if some very basic safeguards are met. The person might have no link to the country to which they are removed—they might have been nowhere near it. It is clearly nothing to do with responsibility sharing between states. Like clause 14, it is just about offloading responsibility.
We are not saying that no one can ever be removed to have a decision made on their claim elsewhere. While not perfect, the Dublin scheme allowed for the transfer of a claim and the removal of a claimant in appropriate circumstances and with appropriate safeguards. We have set out the criteria that would put in place similar safeguards in new clause 18 and new schedule 2. They include a formal, legally binding and public readmission agreement with the state; a requirement that the person has a connection with the country in question; that it is reasonable in the circumstances for the person’s case to be considered there; and that all the requirements and safeguards that we said should have been in place around clause 14 are present, such as the proper implementation of the full refugee convention, protection against harm, access to fair and efficient asylum processes, and so on.
Again, all those protections are informed by the UNHCR’s public commentary on and critique of the Bill. I appreciate that the Minister expressed sympathy for what we are trying to achieve, but I suspect that when he has his discussions with the UNHCR, it will urge him to go further and to adopt some of these safeguards.
There are huge differences between what we propose in new schedule 2 and what appears in schedule 3. The absence of so many crucial safeguards in the latter shows why the clause should not form part of the Bill. Schedule 3 does not even require a finding of inadmissibility or a connection with the state. There is no consideration of the reasonableness of the transfer. The country might not even be a signatory to the refugee convention, offer refugee protection, or offer the chance to secure the full rights to which refugees are entitled under the convention.
To use the UNHCR’s own words:
“Transferring asylum-seekers or recognised refugees to territories with which they have no prior connection and without an individualised consideration of safety, access to fair and efficient asylum procedures and to international protection, or reasonableness is at odds with international practice and risks denying them the right to seek and enjoy asylum, exposing them to human rights abuses and other harm, delaying durable solutions to forced displacement, and encouraging onward movement. To transfer asylum-seekers and refugees to countries that are not parties to the Refugee Convention, and without any expectation, let alone commitment, that they will provide a fair asylum procedure and treatment in line with the Refugee Convention would be an abdication of the United Kingdom’s responsibilities under international law towards refugees and asylum-seekers under its jurisdiction.”
That is the UNHCR’s commentary on schedule 3. That is why we have tabled our new schedule, new clause and amendment, and I hope that the Minister will—not today, obviously—give that further thought.
We know that this is essentially about offshoring. We oppose the clause and the schedule because we are completely and utterly opposed to that concept. It is unlawful, unethical and, as the experience in Australia shows, it does not work. As the shadow Minister highlighted, it did not discourage arrivals by boat. The Kaldor Centre for International Refugee Law went into great detail on that in its submission to the Committee, which is absolutely spot on. It highlighted the humongous cost and, more than anything else, the humanitarian disgrace that those camps represent. Doctors Without Borders has talked about
“some of the worst mental health suffering we have ever encountered in our 50 years of existence, including in projects that provide care for torture survivors.”
Finally, on amendment 159, it is good that the Minister has said that children would not be subject to that procedure. However, as the shadow Minister said, there are still various categories of vulnerable people who must be removed from the scope of the clause and schedule. If the Home Office insists on taking that terrible step, surely to goodness it will not subject pregnant women, disabled or sick people, torture victims, victims of trafficking or gender-based violence, LGBT people or the young and old to that procedure. Perhaps the Minister could accept that amendment, just to give us a tiny crumb of comfort.
Tom Pursglove
I will briefly pick up on a few points that have been raised during the debate on clause 26. The Government argue that the suite of measures are intended to have a deterrent effect. The measures under the clause are just one part of system-wide reforms that make clear our position that individuals must claim asylum in the first safe country they reach. I recognise that there are fundamental differences of opinion in the Committee about some matters, but we argue that that is the fastest route to safety.
I want to clarify the situation. Although we are, of course, working with our international partners to meet our joint challenges, I assure Committee members that we are not working with Denmark to open an offshore detention centre. It is important to be clear on that point.
Stuart C. McDonald
I beg to move amendment 152, in clause 29, page 30, leave out subsection (2) and insert—
“(2) The decision-maker must first determine whether there is a reasonable likelihood that—
(a) the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(i) they would be persecuted for reason of the characteristic mentioned in subsection (a), and
(ii) they would not be protected as mentioned in section 31.”
This amendment would remove the “balance of probabilities” phrase from the Bill and would maintain the status quo.
The Chair
With this it will be convenient to discuss the following:
Amendment 48, in clause 29, page 30, line 45, leave out subsections (2) and (3).
This amendment would remove the requirement for the decision-maker to assess, on the balance of probabilities, whether a claimant’s fear of persecution is well-founded.
Amendment 132, in clause 29, page 30, line 45, leave out
“, on the balance of probabilities”
and insert
“whether there is a reasonable likelihood that”.
Amendment 133, in clause 29, page 31, line 1, leave out “whether”.
Amendment 134, in clause 29, page 31, line 5, leave out paragraph (b) and insert—
“(b) if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(i) they would be persecuted for reason of the characteristic mentioned in subsection (a), and
(ii) they would not be protected as mentioned in section 31.”
The amendment would maintain the status quo and bring the bill back in line with UNHCR standards and UK jurisprudence.
Clause stand part.
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.
Tom Pursglove
I thank hon. Members for tabling the amendments. I agree about the importance of the UK carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under article 1A(2) of the refugee convention. However, we do not agree with the amendments, which, when considered together, will leave decision makers with a lack of clarity on how to consider whether a claimant has a well-founded fear of persecution.
Clause 29 is currently drafted to introduce a clear, step-by-step process for decision makers considering whether an asylum seeker has a well-founded fear of persecution. Currently, there is no clearly outlined test as such. While there is case law, policy and guidance, the current approach leads to a number of different elements being considered as part of one overall decision. The reforms that the Government want to introduce create distinct stages that a decision maker must go through, with clearly articulated standards of proof for each. I am confident that hon. Members will agree that that will lead to clearer and more consistent decisions. That is desirable for all involved.
The amendments include what is already in subsection (4) of clause 29, and it is unclear how they are proposed to fit with subsections (3) and (5). That therefore creates a lack of clarity and defeats the clarificatory purpose of the clause. As identified by hon. Members, clause 29 also raises the standard of proof for one element of the test to the balance of probabilities. Whether an asylum seeker has a characteristic that causes them to fear persecution, also referred to as a convention reason, will be tested to the balance of probabilities.
Stuart C. McDonald
There is one further issue that I did not raise earlier. The Minister has spoken about whether an appellant has a convention characteristic. How does the clause deal with imputed characteristics—that is, when a person is not LGBT but is perceived to be, or a person who does not have a political opinion but is treated and thought of as having such an opinion? That is quite an important concept and it seems to be absent.
Tom Pursglove
Obviously, we are clear that our proposal is entirely consistent with our obligations under the convention. However, I will happily write to the hon. Member with further detail on that point. It is important to give clarity, and I am keen to do so.
At the clause’s core, we are asking claimants to establish that they are who they say they are and fear what they say they fear, to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts—namely, more likely than not. Surelyit is reasonable that claimants who are asking the UK for protection are able to answer those questions.
We have looked carefully at the difficult situations from which many claimants come and the impact on the kinds of tangible evidence they may be able to provide as a result of that. We consider that our holistic approach to making decisions, which includes a detailed and sensitive approach to interviewing as well as referring to expert country guidance, allows all genuine claimants an opportunity to explain their story and satisfy the test. The raising of the standard of proof for this distinct element of the test is appropriate to ensure that only those who qualify for protection under the refugee convention are afforded protection in the United Kingdom.
Stuart C. McDonald
On the hypothetical example that I gave, if a decision maker is 49% certain that somebody is LGBT or that their membership of a political party meant that they would definitely be persecuted on return, is the Minister not uncomfortable that that small shortfall from 50% would mean that their whole claim would be rejected, given the consequences?
Tom Pursglove
On the concerns around LGBTQ+ individuals, we have acknowledged that it may be more difficult to prove such claims compared with individuals making applications based on other convention reasons. We already have specific asylum policy instruction on considering such claims, which sets out in detail how caseworkers should fully investigate the key issues through a focused, professional and sensitive approach to questioning. As part of the operationalisation of the programme, we will seek to update the training and guidance provided to decision makers. That will concentrate on interviews, to ensure that they are sufficiently detailed to enable claimants to meet the standard. I hope that gives the hon. Member some reassurance. I will of course write to him on his earlier point.
The second element of the test—whether the claimant would be persecuted if returned to their country of origin or their country of former habitual residence—remains at the reasonable degree of likelihood standard of proof. The subjective element—the future fear—is naturally harder for the claimant to demonstrate. Consequently, a lower standard of proof is appropriate.
Responses to the public consultation as well as recent reports from non-governmental organisations have warned of the effects that the clause will have on those with certain protected characteristics, including those with LGBT+ claims. The Committee should be assured that we have considered that carefully, and there are several ways in which we will ensure that such individuals are not disadvantaged by the change. It is worth reflecting on the points I made and the explanation I set out in response to the hon. Member’s intervention. In the light of those points, I hope he will agree to withdraw the amendment.
Stuart C. McDonald
I am grateful for the offer of a letter, but I am not remotely reassured about the new higher standard, which will lead to marginal cases being sent away to persecution, torture and all sorts of terrible consequences. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Stuart C. McDonald
I beg to move amendment 49, in clause 30, page 31, line 47, leave out “both” and insert “either”.
This amendment would mean that – in order to be defined as a particular social group for the purposes of the Refugee Convention – a group would only have to meet one (not both) of the conditions set out in subsections 3 and 4.
I have a short but important point to make. The clause concerns the definition of a particular social group, which is an important concept in refugee law and has been crucial to its ongoing relevance across many decades. The clause is controversial because it makes an important change to how a particular social group is defined. In the House of Lords case of the Secretary of State for the Home Department v. Fornah, a long-standing argument about whether the tests in subsection (3) of the clause should be cumulative or alternative was addressed and it was decided that there was no need to meet both of those conditions; one or the other would suffice. However, in the Bill, the Government have decided to change that approach. It now demands that both conditions are met, and that seems to contradict established case law in this country. I simply ask the Government to explain why they have taken a more restrictive approach.
Tom Pursglove
Clause 30 aims to clarify an area where there has been a degree of contradiction and confusion. There is a clear mismatch between how the concept of “particular social group” is set out in current legislation, Government policy and in some tribunal judgments, against the interpretation taken in some case law. That is unhelpful for all those working in and engaging with the asylum system, and who most of all want clarity and consistency. Defining how key elements of the convention should be interpreted and applied is vital in creating a robust system that can generate consistency and certainty, which ultimately will drive efficiency. I trust that members of the Committee will agree with that principle. The historical confusion demonstrates perfectly why what we are doing in this clause is so important and is a desirable law reform.
I cannot agree to the change proposed by the hon. Gentleman. First, it is important to state that the conditions set out in the clause reflect current Government policy; it is not a change. The amendment would mean that a group need only meet one of the conditions to be considered as a particular social group. That significantly broadens the scope of who may be covered by the convention. It would erode the concept that people deserve and need protection based on fundamental characteristics that go to the core of who they are, such as their faith or sexuality. It proposes instead to broaden the definition to cover potentially transient factors that can perhaps be changed, but that fundamentally misunderstands the very basis of what it means to be a refugee, as envisaged by the refugee convention, and why we have a system to offer protection. I hope my explanation has reassured colleagues across the Committee, and I urge the hon. Gentleman to withdraw the amendment.
The hon. Gentleman has mentioned established case law on the correct definition of “particular social group”, so I will say something briefly about that. As with many of the key concepts of the refugee convention, case law has developed over the years on how to apply the term “particular social group” for the purpose of considering whether a claimant has a convention reason. Despite significant judicial interest in the interpretation of “particular social group” in case law, there is no established case law on the point. There is, however, conflicting tribunal-level case law and obiter comments by the House of Lords in the case of Fornah. Consequently, the clause seeks to provide clarity on the UK’s interpretation of a particular social group, to ensure that it is applied consistently among decision makers.
Stuart C. McDonald
I agree with the Minister that we need clarity, but there are two different ways of providing clarity: we can either combine the requirements or use them as alternatives. I say that we should provide clarity by using them as alternatives. That is how the House of Lords interpreted the convention in the case of Fornah, and that is what the tribunal did recently as well, so I wish to press the amendment to a vote.
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 157, in clause 34, page 33, line 20, at end insert—
“(1A) Subsection (1) shall not apply to any refugee—
(a) whose claim for asylum is on the basis of sexual orientation, gender identity, gender expression or sex characteristics;
(b) whose claim for asylum is on the basis of gender-based violence;
(c) who has experienced sexual violence;
(d) who is a victim of modern slavery or trafficking;
(e) who is suffering from a mental health condition or impairment;
(f) who has been a victim of torture;
(g) who is suffering from a serious physical disability;
(h) who is suffering from other serious physical health conditions or illnesses.”
This amendment would exempt certain groups from subsection (1).
The Chair
With this it will be convenient to consider amendment 158, in page 33, line 34, at end insert—
“(2A) Subsection (2) shall not apply to any refugee—
(a) whose claim for asylum is on the basis of sexual orientation, gender identity, gender expression or sex characteristics;
(b) whose claim for asylum is on the basis of gender-based violence;
(c) who has experienced sexual violence;
(d) who is a victim of modern slavery or trafficking;
(e) who is suffering from a mental health condition or impairment;
(f) who has been a victim of torture;
(g) who is suffering from a serious physical disability;
(h) who is suffering from other serious physical health conditions or illnesses.”
This amendment would exempt certain groups from subsection (2).
Stuart C. McDonald
The clause relates to article 31 of the convention, which provides refugees with immunity from certain penalties. It is an important protection that the Government are seeking to limit by, in my view, reinterpreting and undermining article 31, and setting out expectations of where and when individuals should claim that go beyond the letter and spirit of the convention.
The amendments take us back to this morning’s discussion about why it was especially inappropriate to place these requirements and expectations on particular groups, including victims of trafficking, sexual violence and torture. They are designed to pose a question to the Minister: why is he seeking to strip such groups of their immunity from penalties that the refugee convention provides?
Tom Pursglove
Again, I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for all their hard work in this area and in producing these amendments. As they will know, the provisions they are seeking to amend are crucial to the Government’s intention to uphold the first safe country of asylum principle. In this respect, these clauses are designed to deter dangerous journeys across Europe by no longer treating migrants who come directly to the UK and claim without delay in the same way as those who do not. I am sure they will agree that we must do everything in our power to stop people putting their lives in the hands of smugglers and making extremely perilous journeys across the channel.
Amendments 157 and 158 would apply to clause 34, which is closely related to clause 10 in that it sets out the UK’s interpretation of certain criteria within article 31(1) of the refugee convention. The criteria in article 31 provide the basis for the legal framework we are using to differentiate within clause 10. The intention of the amendments is to seek statutory carve-outs from differentiation for a wide range of cohorts.
I absolutely understand where this is coming from. I would like to reassure hon. Members that the powers in clause 10 do not compel the Secretary of State to act in a certain way, and leave discretion to impose or not impose conditions as appropriate, depending on the individual circumstances. We will of course set out our policy in immigration rules and guidance in due course. The policy will be exercised with full respect to our international obligations and will most certainly be sensitive to certain types, some of which are referenced in the amendment, such as having been trafficked.
I would note that blanket carve-outs are an attractive option to ensure protection of the most vulnerable, but ultimately I do not believe it would appropriate to do this in the way amendments 157 and 158 seek. In reality, blanket carve-outs would simply encourage people coming by small boat to claim they belonged to an exempted cohort. Most importantly, this would of course prevent us from protecting those people who do genuinely have those characteristics. By creating this perverse incentive, it would also undercut the entire purpose of the policy to serve as a deterrent. Indeed, people could then simply continue to make dangerous journeys to the UK and not claim in the first safe country because they know they can avoid group 2 refugee status simply by saying that they are LGBT+ or have a mental health condition.
For all these reasons, I invite the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East not to press their amendments.
Stuart C. McDonald
Obviously, we maintain a fundamental opposition to the whole scheme proposed by this clause and clause 10. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald
I beg to move amendment 50, in clause 34, page 34, line 1, leave out paragraph (b) and insert—
“(b) in subsection (3), after (b), insert—
“(ba) entry in breach of a deportation order, entry without leave, remaining in the United Kingdom without leave, or arriving in the United Kingdom without entry clearance under section 24 of the 1971 Act”;
(c) in subsection (4), after (c), insert—
“(ca) entry in breach of a deportation order, entry without leave, remaining in the United Kingdom without leave, or arriving in the United Kingdom without entry clearance under section 24 of the 1971 Act””.
This amendment would mean that individuals who committed these offences (and the other offences set out in section 31 of the Immigration and Asylum Act 1999) would be able to use the defence set out in section 31 of that Act, even if the offence was committed in the course of an attempt to leave the UK.
Again, I want to prompt the Government—perhaps optimistically—for their thinking on the compatibility of these provisions with the convention. The amendment would mean that individuals charged with certain offences could still rely on defences provided by the convention, even if the offence was committed in the course of an attempt to leave the UK. It is important that the Government explain clearly why they think that removing that possibility is consistent with the convention. To be honest, I am struggling to understand the Government’s reasoning.
Tom Pursglove
Amendment 50 is extensive. I thank the hon. Member for the considerable thought he has put into the amendment, which would list the illegal entry, arrival without clearance and remaining in the UK without leave offences as subject to the statutory defence against prosecution. However, the express statutory defence under section 31 of the Immigration and Asylum Act 1999 has never applied to the existing offences referred to in amendment 50. We do not consider the new arrivals without entry clearance offence needs to be referred to expressly for the same reason. Where relevant in a particular case, the Crown Prosecution Service will take into account the UK’s obligations under article 31 of the refugee convention.
Another effect of amendment 50 would be to reverse our clause 34(4) and reintroduce a defence from prosecution for those transiting through the UK having entered illegally and intending to go and claim asylum elsewhere, such as Canada or the USA. I disagree that the statutory defence should extend to those who have tried to exit the UK without first seeking asylum, but I reassure hon. Members that that does not mean that every asylum seeker who tries to exit the UK will be prosecuted. We are targeting for prosecution those migrants where there are aggravating factors involved—for example, causing danger to themselves or others, including rescuers; causing severe disruption to services such as shipping routes or closure of the channel tunnel; or where they are persons who have previously been removed from the UK as failed asylum seekers.
We have of course been very clear that people seeking protection must claim in the first safe country they reach. That is the fastest route to safety. In the same way that we will not tolerate smugglers exploiting vulnerable people to come to the UK when a claim could easily be made in another safe country, we will also not tolerate those migrants who transit through the UK, having previously travelled through European countries, to reach other places. They must claim in the first safe country they reach. For those reasons, I invite the hon. Member to withdraw his amendment.
Stuart C. McDonald
It is useful to have that on the record. I will go away and give it some further thought. We maintain our fundamental opposition to the whole scheme, but, in the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 ordered to stand part of the Bill.
Clause 35
Article 33(2): particularly serious crime
Stuart C. McDonald
I beg to move amendment 51, in clause 35, page 34, line 1, leave out sub-paragraph (i).
Under this amendment, persons receiving certain prison sentences in the UK shall be presumed (as at present) but not automatically deemed (as proposed in the Bill) to have committed a particularly serious crime.
The Chair
With this it will be convenient to discuss the following:
Amendment 53, in clause 35, page 34, line 21, leave out “12 months” and insert “four years”.
Under this amendment, persons shall be deemed to have committed a “particularly serious crime” if they receive a prison sentence of more than four years in the UK (as opposed to two years at present, or 12 months as proposed in the Bill).
Amendment 52, in clause 35, page 34, line 24, leave out sub-paragraph (i).
Under this amendment, persons receiving certain prison sentence outside the UK, or persons who could have received such a sentence had they been convicted in the UK, shall be presumed (as at present) but not automatically deemed (as proposed in the Bill) to have committed a particularly serious crime.
Amendment 54, in clause 35, page 34, line 27, leave out paragraphs (b) and (c) and insert—
“(b) in paragraph (b), for “two years” substitute “four years”;
“(c) in paragraph (c), for “two years” substitute “four years””.
Under this amendment, persons shall be deemed to have committed a “particularly serious crime” if they receive a prison sentence of more than four years outside the UK (as opposed to two years at present, or 12 months as proposed in the Bill), or if they could have received such a sentence had they been convicted in the UK.
Clause stand part.
Stuart C. McDonald
The amendment is a probing one. The basic point is that if someone is at risk of persecution, we must be incredibly careful when creating gaps, loopholes and exceptions that would still see that person subject to removal to the very place where they would be at risk. The convention creates and recognises very specific exceptions to the fundamental principle of non-refoulement.
If someone is a danger to security here or has committed a particularly serious crime, they constitute a danger to the community. The amendment challenges the attempts in the clause to broaden the scope of the exceptions so that persons are automatically deemed and not just presumed to have committed a serious offence if they are sentenced to one year in prison, rather than two years. We have particular concerns about the circumstances where the crime has been committed overseas. How do the Government intend to be sure about the safety and appropriateness of prosecution, conviction and sentence?
Nobody is saying that refugees should not face appropriate punishment for their crimes, but the danger is that those sentenced to one year or more face an additional punishment that puts them at risk of persecution, torture and death. That is way beyond what is merited by the crime. The withdrawal of refugee rights should not be done in anything other than the most serious circumstances. We fear that the clause goes beyond what the convention envisages.
Bambos Charalambous
I just wish to add to the points made by the SNP spokesperson. The whole UK criminal justice system is based on having magistrates courts that deal with the less serious offences, which have a maximum sentence of up to 12 months, and we then have the Crown court, which deals with the more serious offences, with a sentence above 12 months. Defining something as serious with 12 months’ imprisonment seems to be contrary to other aspects of our judicial system.
Labour also has concerns about people who have been trafficked who may have been forced to commit offences. They may have been convicted of a criminal offence as a result of their trafficking, whether that is because of drugs, prostitution or another such offence that might attract a penalty above 12 months. We have some concerns about the redefinition and I wonder whether the Minister can clarify what might happen to someone who has been trafficked, has committed an offence and has received a sentence of 12 months. Would the clause apply to them, because that does raise concerns about it? I do not know whether he will be able to assist in that regard.
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.
Stuart C. McDonald
It is useful to have that on the record. I do not think that all the points were addressed, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 35 ordered to stand part of the Bill.
Clause 36
Interpretation of Part 2
Stuart C. McDonald
I beg to move amendment 55, in clause 36, page 35, line 14, at end insert—
“‘protection in accordance with the Refugee Convention’ means a legal status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention”.
This amendment would define – for the purposes of Part 2 of the Bill – what constitutes protection in accordance with the Refugee Convention.
The Chair
With this it will be convenient to discuss amendment 135, in clause 36, page 35, line 27, at end insert—
“‘protection in accordance with the Refugee Convention’ means a legal status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention.”
This amendment would clarify the meaning of “protection in accordance with the Refugee Convention” and ensure that it includes the positive rights and obligations necessary to ensure durable and humane solutions, and not merely protection against refoulement.
Stuart C. McDonald
Certain very important provisions in the Bill refer to a state providing protection in accordance with the convention. In particular, it is incredibly important to the inadmissibility provisions in justifying removal to so-called safer countries. We need to define it, and we would do so through amendment 55 by referencing all the rights set out in the refugee convention. We thereby seek to ensure that the standards of that convention have been fully upheld. The amendment poses the question to the Government of whether they are a champion of the full range of rights in the convention, or are requiring people to claim asylum in countries where little more than lip service is paid to it, and nothing more than a protection against refoulement is provided. That is the issue at stake, in a nutshell.
Bambos Charalambous
In order to save time—I know that we have had a very long day—I will bear in mind that the wording of amendment 135 is almost identical to that of the amendment tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. He did it justice when speaking to it, and we will support it.
Tom Pursglove
I thank hon. Members for tabling the amendments. I have listened carefully to the arguments that they have put forward. I agree about the importance of the United Kingdom continuing to meet its obligations under the refugee convention, including through the rights that we provide to refugees. The amendments to clause 36 relate to the inadmissibility provisions set out in clause 14. I understand the spirit of the amendments in wishing to define protection in accordance with the refugee convention where we may seek to remove an individual to a safe country. However, clause 14 as drafted ensures that the principles of the refugee convention should be met if we are to remove an individual to that country.
If individuals have travelled via, or have connections to, safe countries where it is reasonable to expect them to have claimed asylum, they should do so. They should not make unnecessary and often dangerous onward journeys to the UK; however, if they do, we will seek to remove them to a safe country. We will only ever return inadmissible claimants to countries that are safe and where the principles of the refugee convention are met. For those reasons, I cannot support the amendments, and I ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw amendment 55.
Stuart C. McDonald
Again, it is useful to have that on the record. The Minister defends the clause as it is by referencing the protection that clause 14 provides on the principles of the refugee convention, but when I asked him what that meant earlier I was not remotely satisfied by the answer. It is another clause that is completely undefined, so I wish to press amendment 55 to a vote.
Question put, That the amendment be made.
Nationality and Borders Bill (Seventh sitting)
Stuart C McDonald ExcerptsThursday 21st October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 October 2021 - (21 Oct 2021)
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 88, in clause 10, page 13, line 13, leave out paragraph (a).
This amendment would remove a provision allowing the Government to treat refugees differently depending on whether they are Group 1 refugees or Group 2 refugees.
The Chair
With this it will be convenient to discuss the following:
Amendment 89, in clause 10, page 13, line 15, leave out paragraph (b).
This amendment would remove a provision allowing the Government to treat refugees differently depending on whether they are Group 1 refugees or Group 2 refugees.
Amendment 90, in clause 10, page 13, line 17, leave out paragraph (c).
This amendment would remove a provision allowing the Government to treat refugees differently depending on whether they are Group 1 refugees or Group 2 refugees.
Amendment 91, in clause 10, page 13, line 19, leave out paragraph (d).
This amendment would remove a provision allowing the Government to treat refugees differently depending on whether they are Group 1 refugees or Group 2 refugees.
Amendment 92, in clause 10, page 13, line 25, leave out paragraph (a).
This amendment would remove a provision allowing the Government to treat refugees’ family members differently depending on whether the refugee is a Group 1 refugee or a Group 2 refugee.
Amendment 93, in clause 10, page 13, line 26, leave out paragraph (b).
This amendment would remove a provision allowing the Government to treat refugees’ family members differently depending on whether the refugee is a Group 1 refugee or a Group 2 refugee.
Amendment 94, in clause 10, page 13, line 28, leave out paragraph (c).
This amendment would remove a provision allowing the Government to treat refugees’ family members differently depending on whether the refugee is a Group 1 refugee or a Group 2 refugee.
Amendment 95, in clause 10, page 13, line 30, leave out paragraph (d).
This amendment would remove a provision allowing the Government to treat refugees’ family members differently depending on whether the refugee is a Group 1 refugee or a Group 2 refugee.
Stuart C. McDonald
It is a pleasure to see you in the Chair again, Ms McDonagh. I will also speak to the other amendments in the group.
We have now come to one of the most fundamental clauses of one of the most fundamental parts of the Bill. As my hon. Friend the Member for Glasgow North East and I set out on Second Reading, we regard both as totally outrageous. In essence, the avowed policy aim is to give the Secretary of State powers to treat certain refugees dreadfully in order to deter others from coming to this country. I find it extraordinary just to be saying that.
Over the course of this debate and the three to follow, we will ask lots of questions in the hope that the Minister will explain a little more what the Government intend to do with these extraordinary powers. We will also challenge the legal policy and, indeed, the ethical basis. We will make the case that in fact the clause will make the asylum system worse, not better. To all intents and purposes, the measure is an attempt to close the asylum system down to a large degree.
There are all sorts of problems with the asylum system: 70,000 asylum applicants were waiting for a decision as of June 2021, more than three quarters of them outstanding for longer than six months. Work has to be done to fix the system, but this measure is not what is required. In fact, as I said, the clause will make it worse.
Most of the broad discussion will take place in the stand part debate; the amendments are designed more to get the Government to flesh out exactly what they want to do with the powers. In doing so, as on Second Reading, I will speak about the implications for a Uyghur asylum seeker, a Syrian asylum seeker and a persecuted Christian seeking asylum, because I want to ensure that the Home Office is tested on its assertion now, and later on Windrush, that it is looking at the face behind the case—it is important to keep in mind who we are talking about. The clause will be particularly disastrous, allowing the Secretary of State almost to punish the individual, to make an example of them, as a form of deterrence.
Of the amendments in the group, amendments 88 and 93 would remove the power to grant so-called group 2 refugees and their families shorter periods of leave to enter or remain. Currently, refugees receive five years’ leave before becoming eligible for settlement. Nothing in the Bill or the explanatory notes tells us what the Government intend to do with the powers. The new plan talks vaguely of no longer than 30 months, with continual assessments thereafter of potential return to a country of origin or of removal to another safe country. My first question is, what is the Government’s proposal? Is it 30 months or, as dreadful as that prospect is, is it worse? Will it be a shorter period?
That is my first question, but the key point is that reducing leave to 30 months or less will have dreadful consequences for our three refugees. Having fled serious persecution, having endured a dreadful journey and having survived six months or more of going through the tortuous inadmissibility procedure—perhaps even an asylum claim—within an accommodation centre, our refugees require stability, a sense of home and the possibility of putting down roots, finding work and rebuilding their lives. All that is being taken away if the powers in the Bill are used as proposed in the new plan.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Would the hon. Gentleman describe a person who has come directly to the UK from France as a person escaping persecution? If so, will he describe the sort of persecution that that person might have experienced in France?
Stuart C. McDonald
That point was made repeatedly on Second Reading, but the big problem with the right hon. Gentleman’s question is that the language of the Bill itself recognises that such people are refugees. The Uyghur is clearly fleeing persecution, the Syrian is fleeing persecution by the Assad regime and the persecuted Christian is fleeing persecution. A refugee does not cease to be a refugee because he has gone on to a different country. We will come to a different debate under clause 14 on the circumstances in which it might sometimes be legitimate for a state to say, “Actually, you are in France and it would be appropriate for France to assess your asylum claim.” I am not saying that is never permissible—far from it—but we will have that debate on clause 14.
The people we are talking about here, however, have been through all that. The Home Office has attempted to move them to France or another country, it has not had any success in doing so and they have been recognised as refugees, so the question is how we treat those three people.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Does the hon. Gentleman share my concern that those who purport to demand that France take more asylum seekers need to be mindful of the fact that France already takes three times as many asylum seekers as the UK, and that we need to meet our international obligations rather than seeking to demand that others take more of a share than we are taking?
Stuart C. McDonald
I agree with the hon. Gentleman. That is exactly why the Government are embarking on a dangerous slippery slope. If the case is that the UK cannot cope with the number of asylum claims that have been made here, which I do not think can remotely be the case, because it is not a remarkable number in the grand scheme of things over the past 25 or 30 years, and therefore we need to take all these steps, then clearly France and Germany and Italy will all be perfectly entitled by that same logic to do the same thing. When that chain of dominoes finishes up and we get to Lebanon and Pakistan, the countries neighbouring the countries where these people have been persecuted, the whole system of international protection falls apart.
Returning to the point I was making about how reducing the period of leave will be fundamentally detrimental to people’s ability to put down roots, to integrate and to feel part of UK society, I wanted to finish by saying that the VOICES Network, people who know the asylum system first-hand, in their response to the new plan consultation remarked that the proposal would
“perpetuate the insecurity and uncertainty of the lives of these people with damaging implications for their mental health.”
I think they are absolutely right.
I have a number of questions for the Minister. How many people does the Home Office anticipate will fall into this group in the first years of the policy? What impact does he believe the policy will have on the mental health, employment prospects and levels of integration for refugees such as a Uyghur, Syrian or persecuted Christian? It seems apparent to me that the measures will undermine all that. What will happen to children? What will the cost implications be for the local authorities and health services that are supporting them?
Similar moves in Australia have had exactly the impact I am talking about. As the Australian Human Rights Commission reported in 2019:
“Uncertainty about their future, the inability to make long-term plans and the stress associated with having to reapply for protection (including the anticipatory distress of potentially being returned to the country from which they had fled) caused significant distress and anxiety amongst TPV holders, hampered their capacity to recover from past trauma and resulted in poorer settlement outcomes.”
The Australian Red Cross said that
“temporary protection institutionalises uncertainty, and often poverty, amplifying pre-existing trauma and suspending the process of settling into a new country.”
I have no reason to think that that will not be the fate of the Uyghur, the Syrian or the persecuted Christian if these provisions are enforced for them. That, unfortunately, appears to be exactly what the Government want to achieve, and that is the shame of the whole policy.
On the other side of the coin, given the record delays and problems in processing asylum claims that the Home Office already faces, why on earth do we want to require the Home Office to process the same cases and applicants over and over again over a 10-year period, adding exponentially to caseworker workloads? Can the Minister confirm what exactly the review process will entail? What will be the targeting for these decisions? What happens to refugees whose 30 months or less have expired while they were waiting? How many additional decisions does the Home Office anticipate it will have to make from the third year onwards, and how many extra staff will that require? This is not only disastrous for asylum seekers, but pretty bad news for Home Office caseworkers.
Amendments 89 and 94 would remove the Secretary of State’s right to punish a Uyghur, Syrian or persecuted Christian by denying them indefinite leave to remain on the same basis as other refugees. That settlement provides the ultimate safety and security and is currently available after five years. Again, the Bill does not say what the Government’s intentions are with this power, but it is understood that they propose 10 years of short-term visas before settlement would become available. Can the Minister confirm precisely how the Secretary of State intends to use these powers? What else will be required of a refugee at the 10-year stage? Will there be a fee? What tests will we require to be met? These arguments are similar to those I made for amendments 88 and 93, so I will not repeat them. The key point is the same: instead of offering security, integration and the opportunity to rebuild their lives, the Syrian, the Uyghur and the persecuted Christian have been faced with uncertainty, re-traumatisation, stress and anxiety.
Amendments 90 and 95 are designed to remove the Secretary of State’s power to impoverish these three asylum seeker groups. The power would see universal credit, child benefit and local authority homelessness assistance among the crucial safety nets torn away from them. The explanatory notes say that the power will not be applied in cases of destitution. Minister, if the power must be kept, why not put that in the Bill? Fundamentally, how will it work, and how will it be assessed? Especially after months and years of being excluded from work, refugees will be destitute from the point that they are recognised. Will it happen automatically? How will the Secretary of State review that? How much more work will that entail for Home Office staff?
Mr Goodwill
Does the hon. Gentleman not agree that these amendments play into the business model of the people smugglers in that they would discourage people from claiming asylum in the first safe country they reach, tempting them to make the hazardous journey in a non-seaworthy craft across the channel, feeding into the organised criminals who prey on those poor vulnerable people?
Stuart C. McDonald
I have absolutely no problem with measures that go after the people smugglers. We all share the goal of disrupting their model. We draw the line at punishing the victims and going after them in an attempt to disrupt and undermine people smuggling. First, I find that morally indefensible. Secondly, as I will come to later, there is no evidence that it will work.
Neil Coyle
Does the hon. Gentleman share my concern, which is twofold? First, the best way to tackle the people smugglers is to provide safe routes, because then they are denied the chance to smuggle people to begin with. Secondly, a Xinjiang Muslim who faces forced sterilisation and forced labour is not going to be aware of UK law and what status they enter under. It is complete nonsense to think that refugees and asylum seekers fleeing persecution and torture are going to be aware of UK law, whatever goes into the Bill.
Stuart C. McDonald
I absolutely agree. The hon. Gentleman makes two points. Yes, safe legal routes can and will make an impact. If people have safe legal routes, they do not need to turn to people smugglers. The Government acknowledge this when they speak about the safe legal routes they support.
There are various other measures we have to take. Our intelligence and police and security forces need to do everything they can to interrupt these networks. It is about international co-operation, including with France, as the Minister alluded to at Home Office questions on Monday. We support those measures, but we do not support deliberately impoverishing the Syrian, the Uyghur and the persecuted Christian and denying them universal credit, homelessness assistance or the child benefit that other citizens in this country get if they need it. I will come back to that in the clause stand part debate.
The Home Office knows this. It did research 20 years ago. If it has done any more since, it is not published. There is no evidence to show that people sit down with a nice table comparing family reunion rights and asylum procedures in all the different countries and then say, “Let’s go for that one.” They come here for a whole host of reasons. Many go to other countries for a whole host of reasons—language, family links, the influence of people smugglers, or they may have a friend or colleague here. Perhaps they just identify with the culture. There are myriad reasons why people end up in France or the United Kingdom, but it is not for these reasons. That is why these provisions will not work.
Mr Goodwill
Does the hon. Gentleman agree that one of the other reasons people come to the UK is that the payment to the people smugglers is only the deposit and the main payment is through modern slavery, forced labour or other ways in which those people are being exploited when they get here? Often, for example, Vietnamese people coming here are put into prostitution or nail bars and that type of work. That is why they want to get here, because that is the business deal. They come here to work in the black economy.
Stuart C. McDonald
The right hon. Gentleman fairly describes the circumstances that many find themselves in and it is another policy route that I would be fully behind. In this country, we are way behind where we need to be. We have statutes on the book and we will come to modern slavery later, but some of the measures in part 4 of the Bill will undermine the Home Office’s good work on modern slavery from just a few years ago, which the right hon. Gentleman was part of. Even with those statutes on the book, the system for inspection and finding where this is happening is just not up to scratch. The national referral mechanism takes forever to make decisions. The way it has been implemented is not effective at all; in fact, it is a boon to people traffickers and people who undertake exploitation. So yes, I am happy to support any work that addresses those concerns.
Amendments 91 and 92 would remove the Secretary of State’s power to strip the Syrian, Uyghur or persecuted Christian of their right to family reunion—the right of the Secretary of State to keep their families split apart. Under current law, having been recognised as a refugee, they could apply for reunion with their spouse or partner and with children under 18. For years, parliamentarians across the House have been pushing for broader family reunion rights and it is only a few years since Parliament voted in favour of the private Member’s Bill that my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) promoted on the subject. It is another crucial building block in allowing refugees to rebuild their lives, as that Bill recognised.
The Government say it is all about safe legal routes, but this is pretty much the only place where the Bill says anything about them, and now it seems the Government intend to reduce family reunion rights. The crucial question for the Government is simply: is that correct? How will they use the power? Will they prevent spouses and partners from being reunited? Are they going to prevent children from reuniting with a parent? Family reunion is probably the most pivotal safe legal route there is to safety in the UK and it is all the more imperative because without the safe legal route, it seems obvious that the most likely people to try to come here via unsafe routes are those who have family members here.
With around 6,000 family reunion visas issued every year over the past five years, let us also be clear that around 90% are issued to women and children. The real danger is that any restrictions will ultimately mean that many more women and children end up on the boats in the channel or taking other unsafe routes. The danger here is that the Government do the opposite of what they say they intend, and drive people into the arms of the smugglers the Bill is designed to foil.
Again, that is what the Australian experience tends to show us. The Kaldor Centre for International Refugee Law notes that after temporary protection visas were introduced,
“there was an increase in the number of women and children who arrived in Australia by boat. According to personal accounts, this was because the TPV regime precluded family reunion. The ineffectiveness of TPVs is the very reason that they were abolished by the Rudd Government.”
Instead, we should do what my hon. Friend’s Bill would have done: expand rules to allow adult children and siblings up to 25 and make other changes. That would reduce the numbers in boats.
In conclusion, all the examples of discrimination in the Bill are just that: examples. The Bill is drafted so as to leave the Secretary of State’s power to discriminate completely and utterly unconstrained. That is pretty shocking. While the amendments test the Government on their intentions in relation to those particular subjects, it is also important to know that the Secretary of State could plan all sorts of other forms of discrimination. Can the Minister clarify what other methods of discrimination the Secretary of State is contemplating?
Anne McLaughlin (Glasgow North East) (SNP)
Thank you, Chair, and good morning, everybody. The Government say they are introducing this Bill because they want people who need our protection to use safe and legal routes, but where are those routes? Where in the world and where in the Bill are they? On several occasions, the Minister has made it sound as if this Bill is all about those safe and legal routes, but it is not, because there is no provision for them and they are barely even mentioned.
I have heard those of us who oppose what the Bill does characterised as wanting people to make those dangerous journeys. Of course we do not want that. Our solution is the safe and legal routes that we keep hearing about but not have. They need to be set up and promoted, and people need to be able to use them. One of the safer legal routes that does exist, and is the most likely to be used, is the family reunion route, but this Bill takes that away from people who do not arrive by the mode of transport or in the way that the Government want them to.
Turning to amendment 91, I want to use the example of somebody from Afghanistan, which will also speak to amendment 15. I am using the examples of people, or their family members or friends, who I represent—I know that we were all inundated with requests from people in our constituencies who needed help for people in Afghanistan.
Mr L worked for a British charity in a programme funded by the UK Government around preventing violence against women. He has made an application for relocation, but he has heard absolutely nothing and I cannot get him any information. He and his wife had to go into hiding because his family was being targeted. The Taliban have already made threats against his wife, who, like him, is just 22 years old. The Taliban got messages to her that she will be raped multiple times if they can find her. His father has already been kidnapped by the Taliban and has been tortured by them. Who knows what will become of him?
Mr L’s wife has had such a severe mental breakdown that he had to make the decision to send her to what he hopes is a safe house in Afghanistan, as he thinks he has more chance of securing relocation for him and his wife if at least one of them can get out of Afghanistan. He is now paying illegal traffickers to get him out because he is so desperate to get this situation resolved and is hearing nothing, and weeks and months have gone by. Of course the traffickers are wrong, but is he wrong? Is he wrong to pay them? If he is wrong, what should he do instead? What options have we given him? I do not want him to do this. As an MP, I am not in a position to give him any kind of legal advice, and I know this is not safe for him to do. Does the Minister want me to go back to him and say that, despite all the promises we made to the people of Afghanistan, I do not have options to offer him?
I want to quote a couple of things that were said by Conservative MPs in August, when everything escalated in Afghanistan. The right hon. Member for South West Surrey (Jeremy Hunt) said:
“There is something we can do right now: cut through bureaucracy and ensure that we look after every single Afghani who took risks for themselves and their families because they believed in a better future and trusted us to deliver it.”—[Official Report, 18 August 2021; Vol. 699, c. 1307.]
I am sure we all agreed with that at the time. The right hon. Member for Esher and Walton (Dominic Raab) said:
“Like the Home Secretary, let me just say that, as the son of a refugee, I am deeply proud that this Government are continuing the big-hearted tradition of the British people in offering safe haven to those fleeing persecution.”—[Official Report, 18 August 2021; Vol. 699, c. 1370.]
The right hon. Member for Scarborough and Whitby gave a welcome from the Scarborough community and talked about
“refugees who had left, in many cases with nothing more than the shirts on their backs. They will have gone through a very traumatic process to even get to the airport and now they have arrived in Scarborough. For many people, the consequences of not getting out of the country would be certain death.”
So, I know he completely understands the trauma that people are going through and their desperation.
That was in August and we are now in October. The people I am talking about are no less desperate—they are more desperate—and I do not know what to say to them. I will have to tell Mr L that if he somehow manages to have his wife looked after, while she tries to recover her mental health, and he manages to get here, he could be offshored, sent away or jailed. He may never see his wife again because we will take away the right to family reunion. That cannot be right.
The people of Afghanistan are desperate—I have read out only a few of the quotes, but I know that all members of the Committee understand that. Time is just not on their side, so we must remove the provision—I would remove all of it. I ask the Committee to support amendment 15, at least to remove those consequences for the people coming from Afghanistan, to whom we absolutely owe safe refuge.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for all their hard work in this area, and for their engaging speeches. I do not doubt for a moment the sincerity of their contributions. Nobody should be in any doubt about the sincerity of the deeply felt views expressed by all Members of this House, who I genuinely believe want to see appropriate action to tackle dangerous channel crossings. I wanted to make that point at the outset, because it is important to remember that in the context of today’s debate.
As hon. Members will know, the clauses that they seek to amend are crucial to the Government’s intention to uphold the first safe country of asylum principle. In that respect, the clauses are designed to deter dangerous journeys across Europe by no longer treating migrants who come directly to the UK and claim without delay in the same way as those who do not. I am sure that hon. Members will agree that we must do everything in our power to stop people putting their lives in the hands of smugglers and making extremely perilous journeys across the channel.
Stuart C. McDonald
I echo what the Minister says: everybody present wants to see an end to such crossings. He used the word “migrants” a couple of times, but as the Bill reflects we are talking about people who have gone through the refugee process. They are refugees, and it is very important that in this debate we speak about the fact that this is happening to refugees—hence the term “group 2 refugee”.
Tom Pursglove
I am grateful to the hon. Gentleman for his intervention.
I will take amendments 88 to 95 in one go, as they individually seek to remove key constituent parts of clause 10 in order to prevent the exercise of the powers to differentiate. That is not the effect of the amendments as drafted, but I shall none the less assume that the intent is as I just set out. Hon. Members are no doubt familiar by now with the way in which the policy is proposed to operate. For the avoidance of doubt, though, clause 10 provides a non-exhaustive list of examples of where differential treatment may be applied to group 2 refugees—in other words, those who do not meet the requirements set out in clause 10, which are based on criteria set out in article 31 of the refugee convention. That includes in relation to the length of leave issued, requirements to achieve settlement, recourse to public funds and family reunion rights.
As mentioned, the clause is extremely important because it acts on our commitment to do everything that we can to deter people from making dangerous journeys to the UK at the hands of smugglers, when they could claim asylum in a safe third country. I will pick up on a number of important points that were made, as it is right to provide clarification on them.
First, the question was raised of how the Secretary of State intends to use these powers. As we talked about in relation to the earlier provisions in the Bill, this will be set out in the normal way in the immigration rules and guidance in due course.
Tom Pursglove
The hon. Gentleman will appreciate some of the genuine difficulties for people in trying to leave Afghanistan—[Interruption]—and doing so in the safest way possible—[Interruption.] He keeps interrupting from a sedentary position. Will he let me finish the point that I am trying to make?
The bottom line is that we are firmly committed to that resettlement scheme. We will announce details of it as quickly as possible, having taken proper account of the very real difficulties that exist in getting people safely, as far as that is possible, out of Afghanistan. Ministers and officials are working tirelessly to work that up in an appropriate manner.
Tom Pursglove
I will give way to the hon. Gentleman as well, because I want to be generous and to hear what he has to say.
Stuart C. McDonald
The Minister is being generous. I want to push things back to some of the questions—
Stuart C. McDonald
Great, because the purpose of the amendments is to probe exactly how these very broad powers will be used. It will be useful if he could talk about some of what the Government intend.
Tom Pursglove
I am keen to do just that. I have made the point about safe and legal routes. There are many examples in the past and that are still active.
Stuart C. McDonald
I am slightly frustrated—actually, pretty frustrated—that we have not managed to tease out more about what the Government intend. We will no doubt come back to the point about article 31 justifying the provision.
We are being asked to hand hugely significant and broad powers to the Home Secretary, and we are being told, “Well, everything will be set out in immigration rules and guidance,” when we all know that scrutiny and opportunities to amend such provisions are incredibly limited. Let me ask the Minister this: what more do I know now about the Government’s intentions than I knew before half-past 11 this morning? Not very much. I am not sure I even understand the answer in relation to no recourse to public funds. I do not see how a person who is a refugee would still be on section 95 support; having been recognised as a refugee, such a person would obviously move on. At least I get the sense that there would be some sort of automatic decision not to put an NRPF condition on them, but I am none the wiser about how some of the other powers will be used.
Tom Pursglove
As I have said previously, I am very keen to be helpful to the Committee, so if I may, I will study Hansard to look back at the questions that the hon. Gentleman posed on this matter. I will gladly write to him to clarify the position and try to provide further detail.
Stuart C. McDonald
It would be hugely helpful for Members of this House, ahead of Report, and for Members of the other place, who will be wanting to scrutinise the Government’s intentions, to be told more about that support and about precisely how the clauses on family reunion can be consistent with article 8, and the answers to my questions about leave. That was the purpose of tabling the amendments, so if the Minister undertakes to do that, there is no reason to put anything to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald
I beg to move amendment 15, in clause 10, page 13, line 34, at end insert—
“(7A) An Afghan national who is a refugee because they face a risk of persecution by the Taliban is not to be treated as a Group 2 refugee and in particular—
(a) must not face a restriction on their leave to enter compared to group 1 refugees;
(b) must have access to indefinite leave to remain on the same basis as group 1 refugees;
(c) must not have no recourse to public funds conditions attached to any leave to enter or remain given to them; and
(d) must have access to family reunion on the same basis as group 1 refugees.”
This amendment would prevent the Secretary of State from treating Afghan refugees at risk of persecution by the Taliban as Group 2 refugees.
I can be brief, because a lot of the territory in relation to Afghanistan was covered in the previous debate. Again, Members across this House have been forceful, powerful advocates. Whatever our views on the manner of the withdrawal, its timing and so on, I do not doubt for a minute that every Member of the House intended to ensure the UK did what could be done to assist the people of Afghanistan. The problem with this Bill, as far as I can see, is that that generosity of spirit, that determination to help, seems to come to a shuddering halt should a person from Afghanistan end up claiming asylum in this country.
The amendment confronts hon. Members with, to use a Home Office expression, a face behind the case. We are talking about creating an exemption where the Home Office has assessed a person’s case and accepted that they are at risk of persecution from the Taliban in Afghanistan, such that it will not be permissible for the Secretary of State to discriminate against them—to make them subject to no recourse to public funds, to deny them family reunion, to refuse to give them settlement after five years and to perpetrate all the other discriminations that the clause allows. In a sense, it would be nonsensical to create an exception only for such people, but the amendment is designed simply to confront hon. Members with the fact that that is who we are talking about. Those discriminations will apply to these people, whom we have all been championing, just as they would to any other asylum seeker. I do not need to say any more than that, but I will press the amendment to a Division.
Tom Pursglove
I do not think it would be appropriate for clause 10 to include an exemption from group 2 refugee conditions for Afghan national refugees. Although I have great sympathy for the plight of Afghan citizens who are fleeing the brutal reign of the Taliban, a blanket exemption for Afghan citizens who are recognised as refugees would be inappropriate for two reasons.
First, we cannot exempt any particular nationality, because situations of conflict and repression are fluid. There may come a time when that country is no longer unsafe and those from it who claim asylum are no longer genuinely in need of protection; I am sure that is something that we all wish to see. If there were still an exemption for them in primary legislation, it would serve as a huge pull factor to the UK for migrants seeking to claim asylum in order to work or otherwise make a new life in the UK.
Secondly, any blanket exemption would inevitably lead to people posing as Afghans in an attempt to benefit from the hon. Gentleman’s very principled generosity. That would, perversely, prevent us from protecting Afghans who were genuinely in need. I am sure hon. Members agree that that would be in no one’s interest.
Tom Pursglove
I am very happy to reflect the sentiment in my conversations with my ministerial colleague. As I was about to say before I took the intervention from the shadow spokesperson, I urge SNP Members to withdraw their amendment.
Stuart C. McDonald
For the reasons given by the hon. Member for Sheffield Central in particular, I do not accept the argument about creating incentives. All we are asking is for Afghan asylum seekers to be treated in a few months’ time precisely in the same way as they are treated now, to be given a fair hearing, and, once they are recognised as refugees, to be treated in the same way as other refugees.
I have a second quick point before I conclude. Towards the end of his speech, the Minister referred a couple of times to things being looked at on a case-by-case basis. It is very important that, when we get to the clause stand part debate, he expands on what exactly he means by that. From what I heard from the Home Secretary, my understanding was that clause 10 would apply to Afghans in precisely the same way as it would to everybody else. The Minister’s reference to a case-by-case basis seems to suggest some sort of discretion, whether between nationalities or between individual cases. He has opened up a whole series of questions about how exactly the scheme is going to operate. Perhaps we can revisit that during the clause stand part debate.
I agree with the Minister that it does not make sense for legislation to carve out a particular nationality. However, what makes even less sense, as I said at the outset, is for all of us to be champions of Afghans so long as they are—
Tom Pursglove
I am keen to clarify that point. The point that I was making was exactly as I alluded to earlier: that, for example, we would not return someone to a country that is fundamentally unsafe.
Stuart C. McDonald
I am grateful for that clarification. I had thought that the Minister was saying that the powers in clause 10 would be applied on a case-by-case basis depending on individual circumstances, rather than what seems to be suggested by the clause: depending on their mode of arrival. He has clarified that what the Home Secretary said was correct: it will apply to Afghans, Uyghurs and everybody else in the same way.
Amendment 15 is not the most perfect or wonderful amendment, but even less perfect are the provisions in the Bill that would see Afghan asylum seekers stripped of public funds, stripped of family reunion rights and treated, frankly, abysmally. I would therefore like to put amendment 15 to a vote.
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 96, in clause 10, page 13, line 36, at end insert—
“(8A) Immigration rules made under the power in subsection (8) may not apply to any individual who has submitted a claim for protection prior to those rules coming into force.”
This amendment would prevent the differential treatment described in subsections (5) and (6) from applying to anyone who submitted a protection claim prior to the relevant immigration rules coming into force.
The Chair
With this it will be convenient to discuss amendment 97, in clause 10, page 13, line 36, at end insert—
“(8A) Notwithstanding section 3(2) of the Immigration Act 1971, any regulations made under the power in subsection (8) shall be subject to the draft affirmative procedure.”
This amendment would mean that any regulations made under the power in subsection (8) could not enter into force until they had been approved by Parliament.
Stuart C. McDonald
I will take the amendments in reverse order. To go back to part of Tuesday’s debate about Parliament, rather than the Executive, taking back control, nobody—regardless of whether they were for or against anything else I have said this morning— could deny that these are sweeping powers, with next to no limits or constraints on how they may be used. In theory, the Secretary of State could put everyone up in palaces or prisons, expand or restrict family reunion rights, and give 50 years’ leave or 50 days’ leave. Because it can all be done by changes to the immigration rules, there might as well be no oversight at all.
The process is even weaker than the negative procedure that we use for some statutory instruments. Not since 2008 has a statement of changes to the rules been properly debated by MPs. Although the other place has a better record of holding debates, 87 changes to the immigration rules have been made since 2008 without the procedure being fully invoked. Even if either House disapproves the changes within 40 days, all that means is that the Home Secretary has to lay further rules, making any changes that she thinks appropriate. In short, these are massive powers that could fundamentally change the asylum system in the UK. More important, they will have a profound impact on hundreds of thousands of people. The powers need proper oversight, which is essentially what amendment 97 supplies.
Amendment 96 is designed to retrieve a sliver of hope from an otherwise horrendous clause. Even if the Government are hellbent on proceeding down this road, by their own logic they surely cannot apply these changes and disincentives retrospectively to somebody who has already claimed asylum. The Minister says that the Bill is about disincentives to stop people crossing, or coming by other dangerous routes. I do not think that that will work, or that it is right, appropriate or ethical to do that. Although the Government take the opposite view, they cannot possible argue that we can disincentivise someone who is already here.
There are 70,000 people in the asylum system, many of whom claimed for refugee status many months ago. It is a source of stress and anxiety, according to organisations that work with refugees, such as the British Red Cross, that the threat of being put into limbo, and of family separation and destitution—all the things that we have just spoken about—will hang over them if the provisions of the Bill apply to them.
Tom Pursglove
I hope that I can give the hon. Gentleman the reassurance he seeks in relation to amendment 96. It has never been our intention to apply differentiation retrospectively.
Stuart C. McDonald
That is a hugely welcome assurance, which many people will be very pleased to hear. The Minister can say in his response why he objects to that going in the Bill, but, as I say, it will make a profound difference to 70,000 lives, and to family members further afield.
Tom Pursglove
I reassure the Committee that amendment 96, which seeks to ensure that only asylum claims made after commencement are considered under clause 10, is not needed. For many good reasons, not least for purposes of practicality, we have always intended to apply clause 10 only to asylum claims made after commencement. The position is similar in respect of amendment 97, which seeks to ensure that any regulations required to implement the policy should be subject to the affirmative procedure in Parliament. Clause 10(8) is not a regulation-making power; rather, it is a power to make immigration rules. In any event, the amendment is not needed since the rules are subject to their own parliamentary procedure, set out in section 3(2) of the Immigration Act 1971. Parliamentarians may pray against them within a 40-day period. I therefore urge the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw his amendment.
Stuart C. McDonald
I am grateful to the Minister for his response. After a day and a half of debate, I feel I have achieved one small positive, which is reassurance in relation to retrospective application of clause 10. That is welcome. I have moved millions of amendments to Bills over the years in relation to scrutiny and oversight of immigration legislation, and they have all been rejected, so I am not going to press this to a vote. However, I make the point that if we parliamentarians are serious about scrutinising legislation and profound changes that have an impact on people’s lives, we have to come up with better ways of scrutinising what goes on in the immigration system. I shall leave that debate for another day. Having made my point, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald
I beg to move amendment 87, in clause 10, page 13, line 40, at end insert—
“(10) Before this section comes into force, the Secretary of State must lay before Parliament a report on the implications of this section for local authorities, the Scottish Government, the Welsh Government and the Northern Ireland Executive, and the report must be approved by a substantive vote in both Houses.
(11) A report under subsection (10) must include the following information—
(a) an assessment of the financial implications for the bodies listed in subsection (10);
(b) an assessment of the functions and powers of those bodies that will be affected by this section;
(c) details of any consultation and engagement with those bodies, and the outcome of such engagement and consultation;
(d) the Secretary of State’s findings, conclusions and proposed actions.”
This amendment would require the Government to report on the implications of clause 10 for local authorities and the devolved administrations, and to obtain Parliamentary approval for such a report, before the clause enters into force.
The Chair
With this it will be convenient to discuss the following:
Amendment 161, in clause 10, page 13, line 40, at end insert—
“(10) Nothing within the Act or this section authorises any treatment or action which is inconsistent with the UK’s obligations under the Refugee Convention.”
This amendment seeks to ensure consistency of clause 10 with the UK’s obligations under the Refugee Convention.
Clause stand part.
Stuart C. McDonald
You will be sick of the sound of my voice pretty soon, Ms McDonagh—[Hon. Members: “Never!”] I am reassured by hon. Members. I will speak in opposition to what I regard to be a dreadful clause in the Bill.
Amendment 87 makes an important point in seeking to test how the Government have engaged with other tiers of government for which the clause will have significant implications. It is clear from everything that has been said that there will be implications for health services, housing and welfare services, devolved social security, and the legal aid and justice systems. How have the Government engaged with all the devolved Governments and local authorities on the implications of the Bill? What joint ministerial meetings have there been? What is the outcome of the suggested assessments about the impact on them? Of course, asylum is reserved, but what has been proposed here will have significant implications for all sorts of devolved functions and for the functions of local authorities. Far too often, experience shows us that the Home Office is happy to pursue policies that leave local authorities, in particular, to pick up the pieces with destitute families.
The Minister may say that there was a consultation on the new plan for immigration but, significantly, that consultation period ran, almost to the day, for the entire period of purdah for the recent Scottish and Welsh elections, and for some local government elections. That made it virtually impossible for civil servants and some local authority officials to engage in any work on the matter because it was politically contentious. It is fair to say that the timing of that consultation was, at best, rather thoughtless and it makes it all the more imperative that engagement with other tiers of government happens before the Bill is passed.
Fundamental questions are raised by amendment 161 and clause 10 more broadly. Indeed, amendment 161 takes us to the question of the Bill’s consistency with the refugee convention. What I regard to be inconsistency with the convention is a key reason why I do not believe the clause should stand part of the Bill. The Minister has already answered my intended question about whether he maintains that there is consistency with the refugee convention. The issue was not spoken about at the Dispatch Box on Second Reading, but if that is the Government’s position, presumably amendment 161 or an alternative along those lines is entirely unproblematic. All it does is call for everything in the Bill to be construed in accordance with the refugee convention, so if there is no problem with the consistency, presumably the Government do not have any problem with that amendment either.
Some may not be particularly vexed about whether the Bill complies with the requirements of the refugee convention, but we believe that is a fundamentally vital question. It is vital because the 70-year-old convention is crucial, simply as it ensures that some of the most vulnerable people in the world, at risk of persecution in their own countries, have a safe place to go to and appropriate rights.
The convention is crucial to ensuring that responsibility is at least to a degree not entirely dumped on neighbouring countries—we heard on Second Reading about how the overwhelming majority of refugees are situated in developing countries. If one country is able to rip up the refugee convention—in particular, one that was instrumental in drafting the convention, as the UK was—then absolutely nothing stops others following suit.
I said earlier that the UK Government have been saying that too many people are making claims in this country, but if we make that argument, the Governments to follow will be France, Germany and Italy. Everything would fall back on Lebanon, Jordan, Pakistan, Kenya and other countries that have to take significant populations from neighbouring countries.
That matters, too, for the reputation and influence of the United Kingdom. I do not want to repeat all the arguments we have had in recent months about the importance of abiding by international law and not breaking it, even in a “specific and limited way”. The Minister also referred to that being important. The problem, however, is that when a Foreign Secretary is busy telling Pakistan—already home to several million Afghan refugees—to keep borders open and take people in, or the Taliban to abide by international norms, at some point, if the widely accepted view is that the UK is itself busy ignoring or totally contradicting advice from the UNHCR and riding roughshod over the spirit and letter of the convention, that will come home to roost. How can we tell other countries to comply with international obligations if we are, as we are with the Bill, ripping up not only the refugee convention, but the statelessness convention, the trafficking convention, international maritime law and probably the European convention on human rights?
Let us be in no doubt, the UNHCR has said over and over again that the attempt to create two different classes of recognised refugees is inconsistent with the refugee convention and
“has no basis in international law.”
Regardless of what the Minister said earlier, that view requires significant deference and respect. I appreciate that Governments do not like publishing legal advice, but I can find no respected refugee lawyer who disagrees with what the UNHCR said. The Minister has his work cut out to explain how the Government believe the UNHCR to be wrong. The convention contains only one definition of a refugee, and only one set of rights to go with it. For someone to be outside their country of origin because of a risk of persecution for reason of one of the characteristics set out in that convention is all that is required.
Turning to the specific provisions and how they breach the refugee convention, the Minister must explain in particular how he reconciles the clause with article 23 of the refugee convention:
“The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.”
In contrast, the clause expressly authorises one group of refugees to be deprived of recourse to public funds that UK nationals would have. The human rights memorandum to the Bill seems to acknowledge a problem, noting the apparent contradiction, but then blithely states that
“the Department will ensure that the powers in clause 10 are implemented in a way which is compatible with Articles 23 and 24.”
The huge question is, how? I do not accept—neither does the UNHCR—that there is a way in which that can happen. It is completely insufficient as a justification or an explanation. It is a promise to do the impossible. Any reasonable person looking at the clause and at article 23 will see that they are completely and utterly incompatible.
Other articles are also contradicted. For reasons I set out earlier, the provisions of the Bill will significantly undermine any possibility of refugees’ integration into society, in contravention of the requirement to facilitate integration and naturalisation under article 34. Going further, the proposals in the Bill and policy documents make it clear that the short periods of leave and the constant reviews are designed to lead to the expulsion of those refugees, regardless of the question of whether they are still refugees and in need of international protection. That is in contravention of article 32 of the convention, which prohibits expulsion except on the grounds of national security or public order.
The principle of family reunion is not in the body of the refugee convention itself, but the conference of plenipotentiaries at which the convention was adopted affirmed that
“the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee”.
Furthermore, as we heard, article 8 of the European convention on human rights enshrines the right to respect of family life. Given the insurmountable obstacles that those recognised refugees will face—they cannot enjoy that family life in their home country—and that, if they have got to this stage, clearly no other country will accept them, then it is impossible to see how the UK will not be breaching the convention routinely if it does not allow for family reunion.
As the Minister alluded to earlier, the clause is drafted to circumvent such clear breaches by cutting and pasting certain words and expressions from article 31 of the refugee convention into a completely different context. That article was meant to apply to refugees who are lawfully settled in another country, who have found protection there and who have then moved onwards irregularly for reasons unconnected to their need for international protection. In those restricted circumstances, administrative penalties for unlawful entry or presence are permissible. The article is clear that one condition for its applicability is that the person has an unauthorised presence in the country. This measure in the Bill includes no such restriction so, again, it is not compliant with the article.
Article 31 is also clear that, even when it is available to a state, the penalties that are permissible to put in place cannot breach other parts of the refugee convention, which is what the clause does. It also breaches international human rights law on family unity. The clause breaches the convention by applying unlawful penalties to an unlawful range of people. In coming days, we will address further breaches by new offences under clause 37, which will criminalise refugees, and clause 34, which will limit certain defences.
In short, for all the reasons I have given in the earlier debates, the clause will not work. It will not achieve what the Government want it to achieve. It is morally repugnant—it is completely unethical to treatment victims like this—and illegal, so the whole idea should be ditched and clause 10 should not stand part of the Bill.
Ordered, That the debate be now adjourned.—(Craig Whittaker.)
Nationality and Borders Bill (Eighth sitting)
Stuart C McDonald ExcerptsThursday 21st October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 October 2021 - (21 Oct 2021)
Bambos Charalambous
Since Dublin 3 ended, there are very few resettlement routes available. That is one of the problems. Unless there are safe resettlement routes, we are just fuelling dangerous journeys.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is repeatedly asserted that the UK has an exceptional record in terms of resettlement. It has a decent one; it is about mid-ranking in the European Union, in terms of the number it has taken per head of population over the years. Similarly, it is mid-ranking in terms of the number of asylum cases it assesses. It is good, but it is not exceptional and it is not a justification for the measures in this Bill.
Bambos Charalambous
The hon. Gentleman is absolutely right. Unless safe routes are developed, all that will happen is that there will be an increase in dangerous crossings, because that will be the only way in which people can reach the UK.
Tom Pursglove
I thank the hon. Gentleman for intervening again. I will come on to his point substantively when I speak to clause stand part. Meanwhile, I invite the Opposition Members to withdraw the amendments.
I do not intend to give a long stand part speech, because we have had a wide-ranging and substantive debate on the clause. It is fair to say that many views have been expressed. I do not remotely doubt their sincerity, but I hope that that acknowledgement of sincerity is extended to all Members, regardless of their views on the matter. When Members come to this House, at the forefront of their minds is wanting to do what they believe to be right. Members on the Government side have equally strongly and sincerely held views on the matters that we are debating, and we believe that the approach we are advocating is the right one.
Stuart C. McDonald
I am quite happy to say that all Members are doing what we think is right, though of course we might think each other misguided. I am concerned that the Minister is not going to go into detail about the issues—
Stuart C. McDonald
I thought the Minister was suggesting that the debate would no longer go on.
Tom Pursglove
That is precisely the point that I wanted to focus on before concluding deliberation of the clause. Views have been expressed about differentiation in the way that we are proposing and about its compatibility with our international obligations. I do not agree with the assessment expressed by various Opposition Members: I argue that the differentiation policy is in line with our international obligations, including the refugee convention and the European convention on human rights. Of course, it is for Parliament to determine precisely what is meant by our international obligations, subject only to the principles of treaty interpretation in the Vienna convention. That is precisely what we are doing in the Bill.
I want to say something briefly about people seeking asylum in the first safe country that they reach, the importance of that principle and its relevance in the international context, because there has been a lot of debate on the issue. It is self-evident that those in need of protection should claim in the first safe country that they reach. That is without question the fastest route to safety. The first-safe-country principle is widely recognised internationally, and has been for many years, as my hon. Friend the Member for Dudley South alluded to in his intervention on the shadow Minister, who slightly surprised me by being so willing to condemn the approach taken by the last Labour Government on that principle. It is a long-established principle, which successive Governments have had at the forefront of their minds when looking at and legislating on such matters.
Stuart C. McDonald
Where does the Minister find this principle and what is it derived from? The overwhelming majority of refugees do claim asylum in the first safe country that they come to. Where exactly is he deriving the principle from?
Tom Pursglove
One thing that occurred to me throughout the debate was why any Member of this House would feel that it was necessary for anyone to get into a small boat on the French coastline in order to come to the United Kingdom. France is without doubt a safe country, and I like to think that we could recognise that across the House. Those journeys are completely unnecessary against that backdrop. I am staggered that that point is not recognised more widely. Based on some of the remarks we have heard, one might think that that was not the case. In my mind and those of my colleagues, there is absolutely no need for anyone to get into a small boat to try and cross the English channel or to take irregular journeys.
On the point about what this relates to, the principle is fundamental in the common European asylum system. Without enforcement of it, we simply encourage criminal gangs and smugglers to continue to exploit vulnerable people, and I make no apology for my determination, and that of the Home Secretary and the Government as a whole, to bring these evil criminal gangs to justice and to stop the dangerous channel crossings. We have to stop them, for the reasons that my hon. Friend the Member for Stoke-on-Trent North alluded to. We have a moral obligation to do that, and that is what the measures in the Bill, and the wider package of measures that we talk about very often in the House, are seeking to achieve.
Stuart C. McDonald
I would like to respond briefly to the debate, which has been wide-ranging. I have to express some frustration, because the Minister said he would address in detail the reasons he thought the provision is in compliance with the refugee convention. I do not think he said anything at all about that. I appreciate that he has already undertaken to write several letters. Could he write another that explains how article 23 of the refugee convention, which requires equal treatment with nationals in access to social security, can possibly be consistent with a clause allowing the Secretary of State to treat people unequally? All the points we have made about the lawfulness of the Bill have not been addressed. I would be grateful if the Minister would do so.
During the debate we lost sight a couple of times of what we are talking about, which is people who are refugees. Sometimes people refer to genuine refugees, and we are talking about genuine refugees, who, by definition, have been assessed by the Home Office as such. The clause enables the Secretary of State to essentially treat them like trash—to withdraw access to public funds, to leave them in limbo and keep them separate from their families. While we support all reasonable measures to stop the crossings, we draw the line at treating the victims of these people smugglers like trash.
In actual fact, the British public are with us. Public opinion polling shows that people are sympathetic to refugees, and I think they will be upset when they find out that this is how refugees will be treated. I ask the Minister to engage with the UN High Commissioner for Refugees on the legality of the measures. These are hugely important concerns for a number of reasons, so I hope he will engage with him.
Tom Pursglove
I have a meeting coming up with him in which I fully suspect we will talk about these measures.
Stuart C. McDonald
I have no doubt about it. That is appreciated. On the effectiveness of these measures, reference has been made to how this would disincentivise crossings. Again, there is no Home Office analysis to show that that would be the case. In fact, Home Office analysis is to the contrary. Where is the analysis to show that disincentives will work? We need to see analysis of what the Home Office think the incentives that make people do this are. As we have said, it is things like family, a history with the United Kingdom or speaking the language. None of those will be changed by the Bill. The Secretary of State will not change the incentives that bring people here in the first place.
The numbers are challenging, but in the grand scheme of things the number of asylum seekers in the United Kingdom is tiny. Most folk do not claim asylum here. That is not the issue. Yes, we want to stop them making dangerous journeys, because none of us want to see lives put at risk, but what has been proposed here goes way beyond what is acceptable.
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 98, in clause 11, page 14, line 26, at end insert—
“(3A) In section 16 of the Nationality, Immigration and Asylum Act 2002 (Establishment of centres), at end insert—
‘(4) For the purposes of this Part, references to ‘persons’ do not include—
(a) children;
(b) women;
(c) individuals with a disability;
(d) individuals who have been referred to the National Referral Mechanism;
(e) survivors of torture;
(f) individuals who identify as LGBTQ+.;
(g) family members of any persons in the groups listed in paragraphs (a) to (f).
(5) For the purposes of subsection (4), ‘family members’ includes—
(a) dependent children;
(b) partners/spouses;
(c) in relation to children—
(i) their siblings;
(ii) any other individual who is the relevant child’s guardian.’”
This amendment would restrict the use of accommodation centres for accommodating people seeking asylum so that the state groups, and their family members, cannot be accommodated in them.
The Chair
With this, it will be convenient to discuss the following: Amendment 99, in clause 11, page 14, line 26, at end insert—
“(3A) In section 16 of the Nationality, Immigration and Asylum Act 2002 (Establishment of centres), at end insert—
‘(2A) Accommodation provided under this section must—
(a) have a capacity of no more than 100 residents, and
(b) provide any unrelated residents at the centre with an individual room for sleeping.’”
This amendment would prevent accommodation centres from accommodating more than 100 people, and would ensure that residents were not required to share sleeping quarters with residents to whom they are not related.
Amendment 100, in clause 11, page 14, line 30, at end insert—
“(4A) After section 17 of that Act, insert—
‘17A Right of appeal for support under section 17
(none) If the Secretary of State decides not to provide support to a person under section 17, or not to continue to provide support to him or her under that section, the person may appeal to the First-tier Tribunal.’”
This amendment would ensure there is a right of appeal against a decision by the Secretary of State to refuse or end support provided under section 17 of the Nationality, Immigration and Asylum Act 2002.
Amendment 104, in clause 11, page 14, line 41, at end insert—
“(22B) Accommodation Centres, whether for supported asylum seekers or failed asylum seekers shall not allow for limitations upon a supported person’s right—
(a) to enter or to leave at any time;
(b) to receive visitors of their choice at any time; or
(c) to use communications equipment such as telephones, computers or video equipment.
(22C) Accommodation Centres shall provide supported persons with access to a complaints procedure and procedures for appealing any decisions that may restrict a supported person’s claim to freedoms not limited by their conditions of bail.
(22D) Persons supported in Accommodation Centres shall be informed of the conditions of their bail in writing, and shall be provided with means of identifying themselves are their place of residence.”
This amendment aims to distinguish Accommodation Centres from places of detention by introducing rights to persons supported at these Centres, and to require persons in Accommodation Centres to be informed of their bail conditions and provided with means of identifying themselves.
Amendment 130, in clause 11, page 15, line 1, leave out from “subsection” to end of line 2 and insert—
“(1) for ‘six months’ substitute ‘90 days’.”
Clause 11(8) currently amends the Nationality, Immigration and Asylum Act 2002 to allow the Secretary of State to increase the maximum length of time someone can be accommodated in an accommodation centre from the existing limit of six months. This amendment would remove that power and instead reduce the maximum stay to ninety days.
Amendment 16, in clause 11, page 15, line 1, leave out subsection (8).
This amendment would prevent asylum seekers from being housed in accommodation centres for longer than nine months.
Amendment 17, in clause 11, page 15, line 2, at end insert—
“(8A) The Secretary of State must lay a report before Parliament each year setting out—
(a) the numbers of asylum seekers in different types of accommodation; and
(b) the steps the Government is taking to maximise the number of asylum seekers in dispersed community accommodation, including provision of financial support to local authorities.”
This amendment would require the Secretary of State to produce an annual report on the accommodation provided to asylum seekers.
Amendment 101, in clause 11, page 15, line 2, at end insert—
“(8A) In section 25 of that Act (length of stay in accommodation centre), in subsection (1), for ‘six months’ substitute ‘90 days’.”
This amendment would reduce the maximum length of time someone can be accommodated in an accommodation centre to 90 days in most cases.
Amendment 102, in clause 11, page 15, line 4, at end insert—
“(10) In section 38 of that Act (Local authority), after subsection (2) insert—
‘(2A) The Secretary of State may not make arrangements under section 16 for the provision of premises within the boundary of a local authority unless consent has been given by that local authority.’”
This would amend section 38 of the Nationality, Immigration and Asylum Act 2002 to prevent the Government from opening an accommodation centre within a particular local authority without the prior consent of that local authority.
Amendment 103, in clause 11, page 15, line 4, at end insert—
“(10) Leave out section 36 of that Act (Education: general).”
Section 36 of the Nationality, Immigration and Asylum Act 2002 prevents most children accommodated in accommodation centres from attending state schools. This amendment would remove that restriction.
Amendment 160, in clause 11, page 15, line 4, at end insert—
“(10) Before this section comes into force, the Secretary of State must lay before Parliament a report on the implications of this section for local authorities, the Scottish Government, the Welsh Government and the Northern Ireland Executive, and the report must be approved by a substantive vote in both Houses.
(11) A report under subsection (10) must include the following information—
(a) an assessment of the financial implications for the bodies listed in subsection (10);
(b) an assessment of the functions and powers of those bodies that will be affected by this section;
(c) details of any consultation and engagement with those bodies, and the outcome of such engagement and consultation;
(d) the Secretary of State’s findings, conclusions and proposed actions.”
This amendment would require the Government to report on the implications of clause 11 for local authorities and the devolved administrations, and to obtain Parliamentary approval for such a report, before the clause enters into force.
Clause stand part.
Stuart C. McDonald
It is good to see you in the Chair again, Sir Roger. I rise to speak in support of amendment 98 and the other amendments in this group, but against the clause standing part of the Bill.
Clause 11 brings us to the question of how we accommodate asylum seekers, including, of course, the Uyghur, the persecuted Christian and the Syrian I keep referring to. Precisely how they are accommodated can have a profound impact on them. When I had the pleasure to be co-opted on to the Public Accounts Committee for a day back in October 2020 for an evidence session with the permanent secretary of the Home Office, I asked him whether there was a commitment at the Home Office to return to a reliance on community dispersal and a target to end hotel use by a certain date, and to end the use of military barracks as detention centres. He responded:
“There is not a target date, but we are obviously keen to do those things as soon as possible. Both those measures—the use of hotels and the use of other assets owned by the Government, including by the Ministry of Defence—are temporary, to take account of the surge in demand.”
He went on to outline various measures through which that would happen, including faster decisions and fairer distribution models. When he came before the Home Affairs Committee recently, he maintained that that was still the Department’s intention.
It would be reassuring to hear from the Minister today that he and the Secretary of State intend to commit to that model and that goal. Community dispersal is definitely the best system, although I accept that its current operation is far from ideal, as reports from the Home Affairs Committee have made clear. The system gives local authorities immense responsibilities, but few powers and even less by way of resources with which to fulfil those responsibilities. At the same time, significant problems with inappropriate and poor-quality accommodation have been identified.
We need a Bill that addresses those challenges. If this Bill did so, it would undoubtedly expand the capacity in dispersed accommodation. If it did that, the Bill would have our support and I would stop defending councils that did not participate in dispersal. To that end, amendment 17 calls for the Secretary of State to report each year on the types of institution in which asylum seekers are being housed and the steps that are being taken towards realising the goal of maximising the use of dispersal accommodation, including the financial support being offered to councils. Surely the Minister cannot find anything objectionable in that, if maximising the use of dispersal accommodation is genuinely the Government’s goal.
The problem is that the Bill tends to suggest, as does a lot of other evidence, that the Government are not pursuing that goal and are more interested in taking a different route. The Minister has to explain why this clause exists if the Government want to opt for dispersal accommodation as their central goal. The available evidence tells us that large-scale institutional accommodation centres are, by a distance, a disastrous alternative. That is putting it far too nicely when it comes to what happened at Napier Barracks, and yet correspondence from the Home Secretary to the chair of the Home Affairs Committee, and the explanatory memorandum to the special development order that extended Napier’s use, expressly suggests that Napier is supposed to be treated as a model or a pilot for the accommodation centres that feature in the Bill.
That is a truly terrifying path to go down, as the totally inappropriate nature of Napier Barracks is well documented in numerous reports and the High Court judgment, which was described as finding that
“the arrangements and conditions in which asylum seekers were held, posed significant risks that their physical and mental health would be harmed.”
According to the findings, Napier Barracks was overcrowded and felt like a prison. For residents, the environment was reminiscent of previous experiences of detention in places where they were tortured. Dormitory accommodation meant there was no privacy or quiet, and sleep was interrupted repeatedly. Cleaning was poor, and the inadequate shower facilities were frequently broken, unusable, dirty or unsanitary. They were also communal, which was particularly difficult for those with visible scarring from torture.
The all-party parliamentary group on immigration detention has highlighted extensive testimony that backs up the judgment of the High Court. The group has identified problems with poor Home Office identification and safeguarding of vulnerable people, and repeated instances of self-harm and attempted suicide on site —in short,
“profoundly negative impacts…on the mental health of residents, many of whom were already vulnerable.”
That all shows precisely why we should not go down this route, and why this clause should not stand part of the Bill.
Most of the remaining amendments in this group challenge the Minister to outline more about what the Home Office has in mind on how these centres will look and operate. Amendment 98 poses a question to the Minister. Can he tell us who will be placed in these accommodation centres? Will it be women and children? Will it be people with physical disabilities? Will it be individuals who are suspected to be survivors of modern slavery or trafficking? Will it be survivors of torture? Will it be LGBT people?
A Home Office policy document suggests that such groups should not be accommodated at Napier, so I hope it will not be difficult for the Government to agree to such an amendment. However, there is a challenge; as I alluded to earlier, there have been multiple examples of where that policy does not appear to have been appropriately adhered to, and we require reassurance that that will be done properly.
Tom Pursglove
I hope I can provide the hon. Gentleman with some clarification at this early juncture. We have no intention to accommodate children in accommodation centres. More broadly, decisions will be made on a case-by-case basis, as set out in policy, in relation to other individuals. I hope that gives him the assurance he seeks.
Stuart C. McDonald
It gives me reassurance that children will not be housed in such accommodation, and I think all hon. Members will welcome that. However, we are again being asked, essentially, to legislate blind. As parliamentarians, we are repeatedly told that all sorts of important information will be set out in guidance and in immigration rules, but before we give the Government the power to go ahead, we must least be told what they intend to put in that guidance and those immigration rules.
All sorts of other questions that I have asked—about people with physical or mental health problems, and survivors of modern slavery and trafficking—have yet to be answered. How soon do the Government want to put these people in such accommodation? I want to hear the answers before the Committee is asked to vote on whether the Bill should contain the protection that we propose.
Amendment 103—it is probably redundant in light of the Minister’s welcome reassurance—enables us to ask how, if there were to be children in accommodation centres, those children would be educated. Section 36 of the Nationality, Immigration and Asylum Act 2002 means that most children in such centres cannot attend state schools. This amendment would remove that restriction, but I am pleased to hear that that question will not arise.
Neil Coyle
The Minister said that it was not the Government’s intention, which does not necessarily mean it will not happen. It was not the Government’s intention to put people in unsafe accommodation, as happened with Napier, or to put people at risk in accommodation in my constituency, where there was an inevitable covid outbreak. Perhaps the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is generous and I am cynical, but I would like something clearer than an intention from the guidance.
Tom Pursglove
I would like to confirm that that is not relevant, as we are not proposing to accommodate anyone under section 17.
Stuart C. McDonald
I am grateful, because that clarifies the issue. Amendment 104 is in the name of our Labour colleagues, but it has our full support. It makes the point that it is essential that accommodation centres are not de facto detention centres or prisons, in the way that Napier has been, with basic liberties and freedoms more theoretical than real. It raises a crucial question about how we can ensure that such places have accountability and oversight.
The Government will be using sections of the 2002 Act that are not yet in force to implement many of their policy goals, but there is still dubiety about precisely which ones. Section 33 of the Act would have created advisory groups for each accommodation centre, with powers to hear complaints from residents and report to the Home Office. Is that section to be commenced? If not, what alternatives do the Government propose to ensure that such centres are subject to appropriate oversight? I will leave it to the shadow Minister to flesh out that point.
Amendments 102 and 160 take us back to how the Home Office engages—or, rather, does not engage—with other tiers of Government. The Minister was perhaps asleep at the wheel earlier, because his answer was short on detail about engagement with local authorities, and in particular, the devolved Administrations. I accept that asylum is reserved, but these institutions touch on all sorts of powers and services that are the remit of devolved Governments and Parliaments or local authorities, including planning policy and the provision of health, social or other welfare services and education services. In particular, consistent with our championing of local government autonomy and the idea that local government should be seen as a partner rather than an assistant of the Home Office, amendment 102 demands that these centres not be built in a local authority’s territory without consent from that local authority.
The way in which local councils were treated in relation to both Napier and Penally was disgraceful. The Home Office did not even consult Folkestone & Hythe District Council and Kent County Council about the extension of planning permission at Napier because, it said, of urgency, and yet as the House of Lords Delegated Powers and Regulatory Reform Committee notes, it must have known for at least 12 months that planning permission would have expired. It had 12 months in which to carry out consultation, but that was still the excuse.
As I said at the outset, we pose all these questions with a view to ascertaining what precisely the Government intend and why there are not greater constraints in the Bill, but ultimately we believe that this is not the right direction of travel. We support community dispersal—improving that system, making it work better, and involving more councils. We hope that the Government come back to that view and make that system work instead.
Bambos Charalambous
I will speak to the three amendments that are in my name and the names of others, but I will start by speaking to amendment 104.
No one on this Committee can fail to have seen the extremely worrying track record of the Government when it comes to accommodation for asylum seekers. The appalling headlines in connection with Napier Barracks cannot have failed to reach anyone who takes any sort of interest in the news. We are deeply concerned, therefore, that in clause 11 there are provisions for creating asylum accommodation centres. The clause suggests a possible wide-scale replication of the type of accommodation seen at Napier Barracks. That is because clause 11 gives the Government powers to house different groups of asylum seekers in undefined accommodation centres. It seems that these centres will involve congregated living in hostel-type accommodation, which has been shown to be unsuitable to house people in the asylum system for long periods. Such a move away from housing in the community is likely to impede integration prospects and will make access to needed support and services more difficult.
Clause 11 also creates new powers to provide different types of housing—namely, accommodation centres—for those at different stages of their asylum claim, including those with “inadmissible” asylum claims. The rationale given in the explanatory notes to the Bill is that that will
“increase efficiencies within the system and increase compliance”,
although again no evidence is given to support that claim.
The term “accommodation centre” is not clearly defined, although the implication is that it will mean that more people seeking asylum will be living in large-scale congregated settings. It is important to state clearly that this represents a wholescale move away from the current dispersal system, whereby people live in homes in the community across the country.
There is therefore a clear indication that the Government are seeking to replicate the kind of inhumane accommodation that we have seen at Napier. As I will set out, this prison-like, isolated and dystopian accommodation provides an extremely poor environment for engaging with asylum claims. There is strong evidence that such accommodation is likely to retraumatise extremely vulnerable people and hinder future integration.
The Government may seek to deny that a punitive approach is part of their agenda, but such a denial would not tally with the actions of the Home Secretary in August, when she visited the notorious reception centre on the Greek island of Samos; campaigners have described it as “prison-like” and “inhumane”. It is shocking that, having visited the Greek reception centres in the summer, the Home Secretary appears to wish to emulate the system whereby more than 7,500 refugees, including 1,700 children, are being detained in refugee camps in unsanitary and inhumane conditions.
However, the evidence that that is indeed the intention seems clear, because in August the Home Secretary also published a prior information notice for the procurement of new accommodation centres, with initial submissions invited by the end of September 2021. The details of the tender are subject to commercial confidentiality and therefore the details are known only to potential contractors who have signed non-disclosure agreements. What is public is that the contract is to be delivered in accordance with part 2 of the Nationality, Immigration and Asylum Act 2002, and it is stated that it is for housing up to 8,000 people for periods of up to six months. The tender raises serious concerns about how that approach will interact with provisions set out in clause 11, given that contracts will be awarded before the Bill receives Royal Assent. There are also clear concerns about how accountability and standards can be maintained in asylum accommodation when there is no public access to these contracts.
It is also worth stating for the record that since April 2020, the Home Office has been using two large-scale accommodation centres for asylum-seeking men who have arrived in the UK by boat—Napier barracks in Kent, and the Penally camp in Wales, which is now closed. A report by the all-party parliamentary group on immigration detention noted that, although legally speaking, those are not detention centres, they none the less replicate
“many of the features found in detained settings—including visible security measures, shared living quarters, reduced levels of privacy, and isolation from the wider community”.
Our amendment would take away the detention element of those accommodation centres, as we feel that those de facto detention conditions are completely cruel and wholly inappropriate, and will hinder future integration.
Tom Pursglove
We have had an extensive and wide-ranging debate covering a host of areas. I thank hon. Members for their contributions. I turn to amendments 16, 17, 98 to 104, 130 and 160.
Amendment 16 seeks to disapply a key part of the clause. As I set out, one of the clause’s aims is to enable wider flexibility so that individuals are supported in accommodation centres for as long as that form of housing and other on-site support and arrangements are appropriate for their individual circumstances. We need flexibility to increase the period of residence in a centre—the current maximum allowed by legislation is nine months—if experience shows it to be too short a period to provide consistent streamlined support. The amendment would prevent that. The Government take seriously our responsibilities to asylum seekers, and I reassure hon. Members that those accommodated in the centres will receive the necessary support to meet their essential living needs.
Stuart C. McDonald
Will the Government not at least consider a maximum time limit on the duration of stay?
Tom Pursglove
There have been references during the debate to detention. As I set out in an intervention previously, the accommodation centres are not detention. It is very important to establish that again. I want to make the point clear: anyone in one of those accommodation centres is able to leave at any time. It is important to re-establish that.
Tom Pursglove
The hon. Gentleman will be pleased to know that the people who organise my diary have confirmed that I am set to visit Napier in the not-too-distant future. I have been able to be responsive to that point pretty quickly. I will make some progress on his other point, and I hope to be able to visit it very shortly to provide him with the clarification he requires before concluding my remarks. That is my undertaking to him: I will, for the Committee’s benefit, establish the mechanism that will enact our commitment.
Contrary to what amendment 17 seems to imply, it is not the Government’s intention to maximise the number of supported asylum seekers accommodated in flats and houses in the community. I understand that SNP Members take a different view on the matter, so I appreciate that that will come as a disappointment to them. However, it may be more suitable to house certain cohorts of asylum seekers in accommodation centres, and that is why we are setting them up. Where, for example, their protection claims are likely to be found inadmissible and they can quickly be removed to the appropriate third country, it is likely to be much more efficient to place them in an accommodation centre so that the practical arrangements for facilitating their departure, such as dealing with the necessary travel documentation, can take place at the site. That efficiency benefits the individuals as well as the overall asylum system.
One point that has been overlooked during the debate is that the Government’s whole intention around the policy we are seeking to establish is to deal with cases in a much quicker, speedier and—I would argue—more humane way. I think being able to give people certainty sooner is a good thing, and I would like to think that, whatever the outcome of individual cases, spending less time in any form of temporary accommodation can only be a good thing. It is important to recognise that the whole intention of the policy we are trying to develop is to get on with adjudicating on cases sooner.
Stuart C. McDonald
It is not the type of accommodation that has led waiting times to spiral out of control. Only three years ago, there was a regular six-month target time—that was all within the dispersal system as well. Putting folk in the accommodation centres has no real impact on decision times. On the contrary, the Minister will know that since January, when the inadmissibility procedures came into place, virtually nobody has ended up being removed. It has just added six months to the waiting time; it has not accelerated anything. It is just a six-month block—that is it—so I do not understand where he is coming from.
Tom Pursglove
In the context of the Bill and in the course of our debates, we will revisit the various challenges in our asylum system many times. My hon. Friend the Member for Stoke-on-Trent North made the point earlier that the system is broken, and there is a wide acceptance of that. Undoubtedly, that means that people are left in a state of uncertainty around their circumstances for longer than any of us in this House wish to see.
I can provide clarity to the hon. Member for Bermondsey and Old Southwark on his point about the duty to appoint the group. The answer is that section 33 of the 2002 Act requires the Secretary of State to establish advisory groups for accommodation centres. Napier has not been deemed an accommodation centre at the moment. It is contingency accommodation to manage the high demand for housing that we are undoubtably seeing as a result of the pressures in the system that are a direct consequence of the channel crossings. However, he has that certainty on that particular mechanism.
Tom Pursglove
I dispute that interpretation of the situation at Napier, because Napier does not have the same wrap-around services that we envisage for accommodation centres. For example, the accommodation centres that we will seek to deliver will have significant caseworking functions built within them. That is a marked difference to Napier. Again, I am visiting Napier in a few weeks’ time and I will be interested to hear from the people there and to talk to the officials managing the accommodation to listen to their experiences. As I have said, and I think this is an important point, there is always a need to reflect on the appropriateness of the provisions in place and on whether governance and oversight arrangements remain adequate. That is something that we keep under constant review. I note with interest the suggestions that have been alluded to, and I will happily feed them back more broadly at the Home Office.
I want to make some progress, because I am conscious that time is marching on. The numbers of asylum seekers in different types of accommodation—if that is of interest to parliamentarians—can be obtained through existing channels, such as correspondence or parliamentary questions, so an annual report setting this information out is unnecessary. Amendment 98 is also unnecessary because there are no plans to place those with children in accommodation centres, and all other cases will only be placed in a centre following an individual assessment that the centre is suitable for them and that they will be safe.
Whether or not groups with the characteristics listed in the amendment are suitable to be supported at a particular accommodation centre will depend on a number of factors. These include their personal circumstances and vulnerabilities, and the facilities available at the particular site or in the particular area. It is not sensible to rule out large cohorts of cases from ever being placed in an accommodated centre in any circumstance, especially if their asylum case is more likely to be resolved quickly in a centre, which of course is in their best interests. I re-emphasise that our intention remains to get to a place where cases are processed quicker than they are at the moment, and that is something that we all should welcome.
Stuart C. McDonald
Where is the evidence that doing this in accommodation centres speeds things up? We have had dispersal systems for years and on some recent occasions the waiting times have been absolutely outrageous, but a few years back they were perfectly acceptable. We can have fast decision making and we all support that, but that does not require these terrible accommodation centres to be set up.
Tom Pursglove
The hon. Member and I fundamentally disagree on this point. I think that there is value in having accommodation centres that provide accommodation but also ensure that caseworking facilities are available alongside. That aids in the processing of cases more quickly. That is a sensible step forward, and something that I endorse. I think it is the right thing to do in these circumstances.
Amendment 99 would also undermine a key objective that we are trying to achieve through setting up accommodation centres, which is to resolve asylum cases more quickly by putting casework and other services on site. This speaks to the point that I have been making; there is therefore no rationale for restricting the number of people who will benefit from these improvements to 100 individuals per site.
Additionally, there is no reason why unrelated asylum seekers cannot share sleeping quarters, provided that they are the same sex. This is already allowed for in the asylum accommodation system. Those in flats or houses, for example, may be required to share bedrooms. Some asylum seekers might require their own room—for example, the current policy provides that those receiving treatment from the Medical Foundation for the Care of Victims of Torture should generally not share sleeping quarters with strangers—but that is because of their individual circumstances. I re-emphasise that appropriate decisions must be made on a case-by-case basis and, where circumstances require, appropriate arrangements should be made.
Amendment 100 seems to be based on a misunder-standing—I intervened on the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East on this point earlier. We are not proposing to accommodate anyone in the centres under the powers in section 17 of the 2002 Act. Asylum seekers will be accommodated in the centres under section 95 of the Immigration and Asylum Act 1999, or section 98 of the 1999 Act, pending consideration of an application for section 95 support. If the application is refused, there will be a right of appeal in the normal way.
Amendments 101 and 130 are both similar in theme to amendment 16. I disagree that the normal period of residence in an accommodation centre should be no more than three months. It may be that a three month period is appropriate in some cases, either because of the individual circumstances of the asylum seeker or the nature of the facilities at the site. However, as I have explained, we need the flexibility to increase the period of residence in a centre if experience shows this period is too short to provide consistent, streamlined support.
Amendment 102 would effectively give local authorities a veto on any proposals to set up accommodation centres in their areas. That is not appropriate. It is right, of course, that local authorities are fully consulted about such proposals and their views about local impacts and other matters given considerable weight.
Tom Pursglove
I am afraid that I do not have those figures to hand, but I will take that request away—very gladly—and I will share that information with the Committee when I have it.
Clause 11 amends section 25 of the Nationality, Immigration and Asylum Act 2002, so that these periods of time may be changed, by order, to allow for longer or shorter periods. The clause will also provide the flexibility to ensure that individuals remain in accommodation centres for as long as that form of housing and the other support and arrangements on site are appropriate to their circumstances. I encourage the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw his amendment.
Stuart C. McDonald
On this occasion, I certainly cannot complain that I have not had answers; I may absolutely despair about what those answers were, but the Minister has certainly provided the information.
I am genuinely sad that covid and the stress that it has put on the dispersal system means that the Home Office now appears to be abandoning that system altogether when it has not been justified that that is the correct option. I very much fear that in a few years’ time this will come back to cause the Government problems; more importantly, it will be devastating for lots of people who will be placed in this accommodation.
However, I have the answers, so I do not need to press the amendment to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 104, in clause 11, page 14, line 41, at end insert—
“(22B) Accommodation Centres, whether for supported asylum seekers or failed asylum seekers shall not allow for limitations upon a supported person’s right—
(a) to enter or to leave at any time;
(b) to receive visitors of their choice at any time; or
(c) to use communications equipment such as telephones, computers or video equipment.
(22C) Accommodation Centres shall provide supported persons with access to a complaints procedure and procedures for appealing any decisions that may restrict a supported person’s claim to freedoms not limited by their conditions of bail.
(22D) Persons supported in Accommodation Centres shall be informed of the conditions of their bail in writing, and shall be provided with means of identifying themselves are their place of residence.”—(Bambos Charalambous.)
This amendment aims to distinguish Accommodation Centres from places of detention by introducing rights to persons supported at these Centres, and to require persons in Accommodation Centres to be informed of their bail conditions and provided with means of identifying themselves.
Security Update
Stuart C McDonald Excerpts(2 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Priti Patel
I thank my right hon. Friend for his observation and comments, as well for as his question. This has been a sombre week for all of us in this House —it really has. We have lost colleagues through the most appalling attacks, first Jo Cox, and then Sir David Amess. It is not for us to be publicly discussing security measures at all. As the House has already heard me say, I urge all hon. Members, for the sake of protecting the public, our staff and our functioning democracy, to respect some of the parameters that we are speaking about now. We must also respect the fact that, to carry on in our roles as elected representatives, we have to take advice that should not be in the public domain—advice that we listen to and that will effectively shape our own behaviours. That will lead to greater public protection from safeguarding and security. We all have a responsibility to follow the words of my right hon. Friend and be very conscientious about what we say when it comes to security.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
May I associate myself fully with the remarks of the Home Secretary and the shadow Home Secretary? I thank and pay tribute to all those involved in work to keep us safe. I thank the Home Secretary for her statement, particularly so quickly after Home Office questions on Monday. It is vital—our security and working practices are being debated—that we are kept abreast of the broad thrust of what is going on and I back the points that have already been made. Details of what is going on must be kept private.
We are also fully behind the Home Secretary remarks about making it our mission to protect democratically elected representatives, but also to protect a key part of that representative role, which is meeting and interacting with our constituents. It is imperative that we consider the implications for everybody, not only MPs but our staff and everyone who works in the House of Commons and beyond. As the shadow Home Secretary said, we must consider every level of democracy, including our hardworking councillors. We should always be careful that by adding extra protection to one group we do not make another group vulnerable. I am pleased with the Home Secretary’s reassurance in that regard.
These first urgent steps are welcome, and I join the Home Secretary in encouraging colleagues to take up the extra measures that have been offered to them. As she said, it is important not to lose sight of the broader cultural change that is required, and transforming a political culture in which harassing, intimidation and threatening politicians is seen as something that comes with the job. That is not something we can do overnight, but we should all work together to ensure that it happens.
Priti Patel
I thank the hon. Gentleman for his comments. I think we can judge by the tone of the House, in the light of the tragic events that have taken place and the reasons we are here having this discussion, that we are absolutely united in our determination to work together on this. This is also about the safety of our citizens and our country, and our ability to function and conduct our business as democratically elected Members of this House, while ensuring that other pillars and aspects of society where a great deal of great work takes place—good, important work by other elected representatives—are also safeguarded. Safeguarding the sanctity of our conduct around democracy and delivering the service to the British public is vital.
Alongside that, let me briefly touch on the point about the cruel environment, frankly, of the online space. I absolutely echo the words that were said earlier today, including by the Prime Minister and the Leader of the Opposition, about working together. The online space has become far too permissive of too much cruelty and harm, and it is not just levelled and leveraged towards elected Members of Parliament. We see children, and people of different races and different religious groups, targeted and affected by some of the most awful, barbaric statements. That is what has to stop and change. That absolutely means that we have a lot of work to do in this space, but we will hold those responsible for hosting such cruel material on their platforms to account because we absolutely want to bring an end to this.
Nationality and Borders Bill (Fifth sitting)
Stuart C McDonald ExcerptsTuesday 19th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 October 2021 - (19 Oct 2021)
The Chair
We have declared interests during the evidence sessions, and personally I regard that as a declaration of interest. If a Member is in doubt and wants to do a belt-and-braces job on this, they should feel free to declare an interest and cover themselves. That is their responsibility. As far as the Chair is concerned, that job has been done already. If a Member has not declared an interest but wishes to do so, the appropriate moment for it is when they stand to speak.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairmanship, Sir Roger. I am grateful for your refresher course. We are all rusty and I ask for your forgiveness for the mistakes that I shall undoubtedly make in the days ahead.
I support amendments 29 and 84 and much of what the shadow Minister just said. I welcome the Minister to his new role. I wish him all the best—apart from with large parts of the Bill, unfortunately. He has been thrown in at the deep end, and I dare say his recess was particularly busy. However, I congratulate him on finding time to record an excellent time in the London marathon a couple of weeks ago.
This complex and technical Bill raises profoundly important issues. We are all aware of the huge concerns that have been expressed about large parts of the Bill. I would also like to thank the various organisations that have given evidence in writing, orally or in private briefings or that have drafted the overwhelming majority of the amendments that we have tabled. I thank the Clerks for their help in what is not always a straightforward process in tabling amendments at a time that has been hugely difficult for them as well as for all hon. Members. We do, however, start our line-by-line consideration on a positive note. Even though we have fundamental disagreements with many aspects of the Bill, that is not the case for part 1 where for eight ninths of the time we can have hearty agreement. We just suggest a little probing and tweaking on one or two issues.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
I understand some of what the hon. Gentleman is saying but, by way of clarification, may I point out that there is never any doubt as to who the mother of a child is, but there are occasionally questions over the paternity? Does the wording of the amendment make it easier to define who the father is? Sometimes someone’s parent may not be the biological father. Is the difference between a father, and someone who is married to the mother who may have thought he was the father when the child was born?
Stuart C. McDonald
I am grateful to the right hon. Gentleman for the intervention but I am not sure that I followed every aspect of it. All I can say is that the definition of father in the amendment is exactly the same as the definition that the Government have used. It is not changing that at all. I will explain exactly what the amendment does in a moment.
We are talking about getting rid of the unacceptable discrimination against women and children. A correction, albeit an imperfect one, to the laws of British citizenship that does exactly the same thing has already happened. In clause 5, there is a provision that actually fixes that. However, that correction was not made to British overseas territories citizenship. The Government have already fixed it for British citizenship; the amendment is now trying to fix it for British overseas territories citizenship. In a nutshell, the question we are asking the Government is, “Why are they using slightly different wording this time round compared with last time?” That is the crux of the debate and I will come back to that point.
My amendment would allow people who have suffered injustice to register as British overseas territories citizens. That is good, but two issues arise. The first is cost and we will come to that when we consider the next group of amendments. The second is about the language used and whether it really makes sense. Amendment 29 would challenge the Government on the use of the language to correct the injustice. Slightly surprisingly, the Government have not just copied, or used copy and paste, from the fix used for British citizenship that is found in section 4C of the British Nationality Act 1981. Section 4C allows for the correction of injustices by registration if someone missed out on citizenship because citizenship by descent was not provided for mothers “in the same terms” as for fathers or if someone missed out because it could not be acquired because it could not be obtained “in the same terms” for mothers as for fathers.
The Bill, in doing the same job for British overseas territories citizens, uses the terminology
“had P’s parents been treated equally”.
The key questions for the Minister have been pointed out by Amnesty International and the Project for the Registration of Children as British Citizens in their written submissions. Why are the Government not using the same language as they used to fix the problem for British citizenship? If there is a good reason for not using that language—if there is some sort of problem with the language that was used in the case of British citizenship and the fix used for that—do we not need to go back and fix that fix, as it were? Even assuming that there is a problem and the language used has to be different, why have the Government chosen to use this language, which seems rather clunky and problematic?
Speaking about hypothetical circumstances when parents are treated equally does not make it clear, unlike the section 4C version, whether we are, to coin a phrase, “levelling up” rather than levelling down. P’s parents could be treated equally badly, as well as equally well, so the drafting leaves a lack of clarity about the fact that we want mothers to be treated the same as fathers and not the other way round. The Government like to talk about “levelling up”, so here is a chance for the Minister to do some of that and make what appears on the face of the Bill absolutely clear.
Amendment 29 provides the best wording and addresses all the points in amendment 84. It flags up another place where the issue arises and if we wound back the clock a few days, I would probably copy amendment 29 that the shadow Minister has tabled. I believe it is the best version. I will therefore not press amendment 84 to a Division, but I fully support amendment 29. I look forward to hearing the Minister’s response.
The Chair
Ordinarily, I would take speakers from both sides of the Committee, but if no Government Member wishes to speak at this stage, I will call the hon. Member for Glasgow North East.
Tom Pursglove
I will of course be delighted to receive any such examples. I genuinely think that, as with so many cases of immigration law, the underpinning guidance plays an important role in making it clear, in plain English that people can understand, precisely what various aspects of the law entail. I am satisfied with the current wording of the clause.
Stuart C. McDonald
I understand what the Minister says about the wording doing a job in statute, but will he say whether he thinks that the wording used has any implications for British citizenship as opposed to British overseas territories citizenship? Was a problem with the wording recognised and is that the reason why it was not copied across? Or is this Bill a wee bit different and therefore uses different wording?
Tom Pursglove
The short answer, based on my understanding, is no. The connected provision in the Act talks about parents and not the mother and the father, so that is why we think this is the appropriate route to take for BOTCs. I am satisfied that the current wording does what is required so I ask hon. Members not to press their amendments.
The Chair
Ordinarily, Mr McDonald, I will not ask this question, because I will assume that if you, or any other Member who wishes to move an amendment that has been debated but not yet called, have not notified the Chair, you do not want it to be called. However, because this is the first time, do you wish to press amendment 84 to a Division?
Stuart C. McDonald
I beg to move amendment 8, in clause 1, page 2, line 46, at end insert—
“(7) The Secretary of State must not charge a fee for the processing of applications under this section.”
This amendment would prevent the Secretary of State from charging a fee when remedying the historical inability of mothers to transmit British overseas territories citizenship.
The Chair
With this it will be convenient to discuss the following:
Amendment 9, in clause 2, page 7, line 30, at end insert—
“(6) The Secretary of State must not charge a fee for the processing of applications under sections 17C, 17D, 17E or 17F.”
This amendment would prevent the Secretary of State from charging a fee when remedying the historical inability of unmarried fathers to transmit British overseas territories citizenship.
Amendment 10, in clause 3, page 8, line 18, at end insert—
“(4) The Secretary of State must not charge a fee for the processing of applications under this section.”
This amendment would prevent the Secretary of State from charging a fee for British citizenship applications by certain British overseas territories citizens.
Amendment 11, in clause 7, page 10, line 25, at end insert—
“(5) The Secretary of State must not charge a fee for the processing of applications under this section.”
This amendment would prevent the Secretary of State from charging a fee on applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.
Amendment 12, in clause 7, page 11, line 8, at end insert—
“(5) The Secretary of State must not charge a fee for the processing of applications under this section.”
This amendment would prevent the Secretary of State from charging a fee on applications for British overseas territories citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.
New clause 16—Registration as a British citizen or British overseas territories citizen: Fees—
“(1) No person may be charged a fee to be registered as a British citizen or British overseas territories citizen that is higher than the cost to the Secretary of State of exercising the function of registration.
(2) No child may be charged a fee to be registered as a British citizen or British overseas territories citizen if that child is being looked after by a local authority.
(3) No child may be charged a fee to be registered as a British citizen or British overseas territories citizen that the child or the child’s parent, guardian or carer is unable to afford.
(4) The Secretary of State must take steps to raise awareness of rights under the British Nationality Act 1981 to be registered as a British citizen or British overseas territories citizen among people possessing those rights.”
This new clause would ensure that fees for registering as a British citizen or British overseas territories citizen do not exceed cost price. It would also ensure that children being looked after by a local authority are not liable for such fees, and that no child is charged an unaffordable fee. Lastly, it would require the Government to raise awareness of rights to registration.
Stuart C. McDonald
In short, the amendments say to the Government, “Having recognised an injustice and provided people with a right to have it fixed, which is very welcome, you must also ensure that that remedy is accessible to those who have been wronged.” It is about the cost of applications, and about other parts of the procedures that have been put in place. If we acknowledge that these people should have been British citizens automatically, we should not ask them to jump through other hoops. They should not have to pay any fee for an application or for biometrics, or travel hundreds of miles for a citizenship ceremony unless they want to, if that would not have been required of them had the injustice not been done.
It is all about putting the person, so far as is possible, in the position in which they would have been had the injustice not occurred. It is also about making people aware and giving them support, if they need it, to make these new rights a reality, so that we are not just passing laws but making sure they are effective. That can be vital—we know that from the Windrush scandal and the deliberately low-key efforts by the Home Office in the 1980s to advertise registration rights, to avoid a deluge of applications.
Amendment 8 provides that there should be no fee for registration applications under clause 1. As we discussed, that remedies injustices in relation to British overseas territories citizenship for women and their children. Amendments 9 to 12 would do similar in relation to three other clauses that seek to remedy other injustices: clause 2, which corrects injustices whereby people lost out on British overseas territories citizenship because of rules that prevented unmarried fathers from passing on that citizenship; clause 3, which corrects the double injustice faced by some who, having lost out on British overseas territories citizenship, then lost out on entitlement to British citizenship provided for by the Nationality, Immigration and Asylum Act 2002; finally, clause 7, which provides for more general power to remedy injustices by registration as British overseas territories citizens or British citizens.
The Bill recognises that had our laws not been unjust, the people impacted would have been BOTCs or British citizens with no fee and no procedure. It seems only just to rectify that injustice free of charge. In relation to clauses 1 and 2, there are no fees charged for the equivalent fixes to British citizenship law, so it should be the same for British overseas territories citizenship. I was pleased to learn at the weekend, having already tabled the amendments, that back in July the Home Office had apparently written to various nationality experts to confirm that the intention was not to charge for those applications and that the same approach would be taken for applications under clause 3. That is welcome, but it would be useful for the Minister to confirm that is accurate, so that we can hold the Government to account in future, if the Treasury ever tries to force a change of approach.
I still say that Parliament’s intention should be in the Bill, because it is clear from debates around the British Nationality Act 1981 that registration fees for children were never intended to be set at anything more than the cost of processing for the Home Office. Yet a quarter of a century later, the Home Office started ramping up prices relentlessly and now makes massive profits on them. Let us all agree today that the applications should be free and ensure that our successors are aware of that by putting it into law.
Notwithstanding the welcome Home Office letter, that still leaves applications under clause 7, which is the broad discretionary clause. It would be good to have an indication of the Government’s thinking. Let us remember what that clause provides for: it is a general fix for persons who missed out on British citizenship or British overseas territories citizenship because of laws that discriminated between men and women or against children of unmarried couples, or because of acts or omission by public authorities or something exceptional. If a person has been deprived of citizenship because of discriminatory laws or a mistake by a public authority, it is hard to see why they should be charged a fee for fixing that. That is certainly true where citizenship would have been automatic, hence this amendment.
As the Project for the Registration of Children as British Citizens and Amnesty International argued in their written submissions, fees for registration are undermining access to those procedures. The sum of £1,112 for a child and £1,206 for an adult is a long way beyond the cost—something like £372—to the Home Office of the registration process. It is particularly dangerous to ramp up the fees for applications where success is not guaranteed or certain. Under clause 7, it is not the case that someone simply has to show a date of birth and nationality of a parent and it is easy to know whether the applicant will be successful. In many cases, people will be unsure whether the Secretary of State will regard their circumstances as exceptional. Even if the circumstances are exceptional, as the clause stands, the Secretary of State still has the discretion to say, “no”, because the clause says she “may” register them in those circumstances, rather than “must”.
The lack of certainty of success, coupled with the high fee, risks causing low uptake of the new rights. We are all delighted that the new rights have been put into law, but if someone is not certain that they will be successful and they are putting at risk a huge fee, they will simply not apply and injustices will be left uncorrected.
New clause 16 would enshrine a broader principle that registration for citizenship should not be a profit-making exercise. It is vital to keep in mind the fundamental distinction between naturalisation and registration. It is possible that the root of such problems is the fact that the Home Office has come to treat those things as pretty much the same—they are not; they are very different.
People who naturalise as British citizens, and their families, have made a conscious choice to come to the UK, settle and make this their home country, and seek its citizenship. In contrast, those who register as British citizens—in the overwhelming majority of cases, they are children—did not make those choices. Often, they are British-born kids who are not automatically British at birth. They are allowed to register as British if they lived in the UK for the first 10 years of their lives; if either parent settles and becomes British before the kid turns 18; or if they were stateless at birth and live here for five continuous years. Although the Home Secretary has no discretion over that, the 1981 Act quite rightly retained a discretionary power for the Home Secretary to allow other children to register, including those who came here at an early age and who are, to all intents and purposes, British.
In 1981, Parliament repealed automatic citizenship by birth alone on the basis that birth here did not necessarily mean that someone’s connection to the country was strong enough that this should be their country of citizenship. However, Parliament was careful to put in place protections for children born here to non-British parents, for whom this clearly was or became home, hence their right to register as British citizens. Far from being equivalent to naturalisation as a British citizen—those people have picked the UK to be their home—citizenship through registration should be seen as equivalent to the British citizenship that most people in this room will have automatically enjoyed simply by being born here to British parents.
To make a massive profit from that is as outrageous as demanding that anyone in this room pay for the privilege of being British. Parliament took the view that Britain was the home country for those kids in the same way that it is for everyone in this room. Now, the Home Office is putting that citizenship way beyond the means of many. When he was Home Secretary, the now Secretary of State for Health and Social Care, the right hon. Member for Bromsgrove (Sajid Javid), accepted that that fee was a huge sum of money. The Home Office is undermining Parliament’s intentions: thousands of children cannot access the citizenship that should be theirs because the Home Office now charges that huge sum. When the fees for registration came into force, they were set at something like £30—around £100 in today’s money—simply to cover the cost of administration, and it remained like that for a quarter of a century. Since 2007, however, the Home Office has rapidly ramped up the fee, which now stands at more than £1,000. The application processing cost stands at around £360, so almost £700 of the fee is pure profit for the Home Office.
The impact on kids whose families cannot afford to register them is absolutely profound. Many will grow up unaware that they are not British citizens like their pals. That penny will perhaps not drop until they cannot join a school trip abroad or apply for college, university or a job. Without British citizenship, those children are made subject to immigration control and could feel the full implications of the hostile or compliant environment, meaning that they even run the risk of being refused access to child healthcare, employment and education, social assistance and housing, and of being detained, removed and excluded from their own country altogether. It is important to say that that affects tens of thousands of British-born children, and is surely contrary both to the Government’s duty to safeguard and promote the welfare of children and to the requirement that children’s best interests be a primary consideration in all actions that affect them.
Over the years, the Home Office has made various arguments, a number of which do not stand up to scrutiny, and I will address three of them. First, the Home Office often asserts in such debates, of which we have had several since I turned up in 2015, that the fee reflects the benefits received by the child in being able to register. That is a completely inappropriate argument. On that basis, we all should be charged a fee for our British citizenship, but as it is our right, we are not, and it should be exactly the same for those kids.
Secondly, in what I regard as an even more dreadful argument, the Home Office states that citizenship is not actually necessary for those kids, and that they can instead just apply for leave to remain. Frankly, that is an astonishing argument. If the Home Office said to anyone on the Committee, “We are going to deny you your British citizenship, but don’t worry, you can apply for leave to remain—we might even give you a fee waiver if you’re struggling to afford it”, would any of us be content with that? Absolutely not, particularly given that the leave-to-remain route is the horrendous ten-year route to settlement. To suggest that immigration leave is any sort of equivalent to being recognised as a national is quite simply insulting to those kids.
Thirdly, the Home Office makes the case that people using the immigration and nationality system can fairly be asked to pay a contribution towards its broader costs, so that British taxpayers do not have to. In some circumstances, I accept that that is true. I do not have a problem if the Home Office makes a profit on work visas, perhaps, to subsidise other work that it does, but it is totally unfair to apply that principle to people for whom the UK is home, and who are simply trying to access their right to nationality. These are not migrants choosing to come here to work, study or whatever else; they are, to all intents and purposes, British kids, and it is time that the Home Office supported them in exercising their rights to the British citizenship that reflects that, and stops trying to profit from them and put them off. Let us end this injustice now.
Mr Goodwill
As I was saying, I would always scrutinise the officials and say, “Does it actually cost this much to apply?” They gave me evidence that this was indeed an expensive operation. As I said, often fake documents are presented, and forensic work needs to be done to ensure that the identity of the person is as stated, and that the documents provided in evidence are correct.
Stuart C. McDonald
The figures that I gave in terms of the cost to the Home Office came from, I think, freedom of information requests, so they have been carefully calculated. It is beyond doubt—I do not think the Home Office disputes this—that it makes something like £700 profit on an application that costs just over £1,000. We are talking about kids, so it is, as the former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), said, a huge sum of money.
Mr Goodwill
As I said, I hope that the Minister will reassure us of the principle that was certainly in effect when I was in the Home Office: that this is not an opportunity to make a profit out of these people, but merely to recover the cost.
I believe that the amendments will place a greater burden on taxpayers as a whole for a service that is being provided to these applicants. I am also a little concerned about new clause 16(3), which talks about whether a person can afford the fee. I am not clear whether that means that it should be set at a level that anyone can afford, which in effect would have to be zero, or whether the proposal is for some sort of means testing, which of course would add the cost of getting financial information from the applicant. The cost of the process could end up being greater overall, although if the new clause were accepted the costs for some would be lower than for others.
Stuart C. McDonald
The fundamental point is that a kid’s British citizenship is not a service; it is a right. I am happy to have a discussion about the wording of the new clause, but I understand that the language has been borrowed from elsewhere. The Home Office has fee waiver schemes, for example in the long route to settlement, as the right hon. Member will well know, so it is not something that the Home Office will not understand. It will be able to put in place a scheme that allows people who are generally unable to pay the fee because of their impoverished circumstances not to have to pay it. I am happy to discuss the wording if he accepts the principle.
Mr Goodwill
I hear what the hon. Gentleman says, but I maintain my view that the Government have it right on this occasion: the fees should reflect the cost of delivering those services, and should not fall more widely on taxpayers as a whole. Of course I have a right to a British passport, but that does not mean that I should not pay the fee to ensure that the passport is applied to me, not to somebody who is pretending to be me or trying to impersonate another citizen.
Stuart C. McDonald
To echo the point made by the hon. Member for Bermondsey and Old Southwark, no big profits are made on passports. Of course, people still have British citizenship even without a passport. A passport is a useful thing to have to prove citizenship in many circumstances. In a way, that could almost be described as a service. I think it is a pretty important one, and it is right that the Home Office does not make a huge profit on it, but the right hon. Member was not charged a fee for his British citizenship. None of us were. It is not a service that has been provided to us; it is a right, and it is a right for these kids as well.
We have had lots of support on these arguments from Conservative MPs over the years. It is very strange that it is a Scottish National party MP who tends to stand up and champion British citizenship. I thought that this would be made for Conservative MPs. Even if folk will not support us today, I encourage them to please go away and think about this, and speak to their colleagues. I think many hon. Members would have sympathy for this cause if they just looked closely.
Mr Goodwill
I completely understand the hon. Gentleman’s point, but I maintain my position that although it is a right for these people to apply for citizenship, the cost of their doing so, and indeed the cost of ensuring that people who may be fraudulently trying to avail themselves of citizenship, should not fall disproportionately on taxpayers as a whole but on the applicants. As long as the Minister can reassure us that the fees reflect the cost, and that any high fees can be justified by the man hours spent and the time needed to check those applications, the Government should be supported on the wording in the Bill.
Tom Pursglove
I will gladly take away the Committee’s feedback on fees. As I have said, fees are kept under constant review and are subject to parliamentary scrutiny. I have no doubt that members of the Committee, and indeed Members across the House, will want to scrutinise any fees orders and fees regulations that are brought forward, express views on them and, as they see fit, either support them or take issue with them.
To return to the focus of the amendments and the clause, removing these fees during the passage of the Bill would undermine the existing legal framework without proper consideration of sustainability and fairness for the UK taxpayer. It would also reduce clarity in the fees structure by creating an alternative mechanism for controlling fees.
Beginning with amendments 8, 9, 10, 11 and 12, the aim of which is to limit the Secretary of State’s power to charge a fee for applying for British overseas territories citizenship, I can reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that I am sympathetic to the view that a fee should not be charged in cases where a person missed out on becoming a British citizen automatically due to historical anomalies. The provisions in the Bill are about righting historical wrongs, and I can give the Committee my assurance that we will look carefully at where fees should be waived via the fees regulations. However, as I have outlined, that is not a matter for this Bill and it should be remedied through secondary legislation, in line with other changes to immigration and nationality fees.
Stuart C. McDonald
My understanding, from the briefing I was given at the weekend, is that in July the Home Office sent a letter to nationality experts stating that the intention was not to charge a fee, but the Minister seems to be saying something different; that there will be fee waivers, rather than no fees at all. We are talking about historical injustices here, so can he be a little more clear? Is the intention not to charge a fee for the applications to which amendments 8 to 11 refer?
Tom Pursglove
The hon. Member is always on point in asking pertinent questions. I reiterate the point that the Home Office tends not to charge fees in instances where unfairness or injustice have occurred, and it remains our intention to continue to adopt that approach in relation to the provisions that we are enacting through the Bill. I hope that gives him the reassurance he is seeking.
Tom Pursglove
The hon. Member would be surprised if we did not want to review the situation and take into account fully the judgment of the Supreme Court in due course. I think that it is entirely proper that we take a view on this and that the situation should be reviewed in the light of any judicial ruling handed down. This exchange has been very useful, as it has allowed me to address many of the points that I would have picked up at the end of my remarks.
I turn now to subsection (1) of new clause 16, the aim of which is to limit the Secretary of State’s power to charge a fee for applying for British citizenship and British overseas territories citizenship to the cost to the Secretary of State of processing the application. As I have already outlined, imposing such a requirement would cut across the funding and coherence of the whole system and is not a matter for the Bill.
Subsection (2) would prevent the Secretary of State from charging a fee to register as a British citizen or British overseas territories citizen if the child is being looked after by a local authority. It is important to remember that any child, irrespective of nationality, who is looked after by their local authority can apply for both limited and indefinite leave to remain without being required to pay application fees.
Stuart C. McDonald
The Minister is being generous with his time, but I regret that the Home Office appears to have dusted down the same old briefing and he is making the same points that have been made before. He cannot possibly argue that limited leave is some sort of alternative to British citizenship. None of us would accept that; why should these kids?
Tom Pursglove
We would argue that the provision ensures no child in local authority care is unable to access leave. We remain of the view that citizenship is not necessary for any individual to work, live, study or access services within the UK. Subsection (3) would prevent the Secretary of State from charging a fee to be registered as a British citizen or British overseas territories citizen that the child or the child’s parent, guardian or carer is unable to afford. That raises similar points to subsection (1) in that imposing such a requirement would cut across the funding and coherence of the whole system and is not a matter for the Bill. Subsection (4) would require the Secretary of State to take steps to raise awareness of rights under the British Nationality Act 1981.
Stuart C. McDonald
I have a quick question on the fee waiver. Why is registration for citizenship just about the only thing where there is no fee waiver scheme at all? There is a fee waiver sometimes for the 10-year route to settlement—as ludicrous a system as that is. Why is there no fee waiver system at all even for folk who cannot remotely afford that?
Tom Pursglove
I am conscious that I want to get through my remarks on this. I will write to the hon. Member on that point.
Tom Pursglove
Again, I do not have the figure to hand, but I will happily take that away and see if I can provide him with a written answer on that point. Information about becoming a British citizen is made available in published guidance on gov.uk and we are committed to ensuring information of this nature is fully accessible for all. I am conscious that we have had quite an extensive debate around fees in general, but I hope what I have said around the provisions in the Bill and the Government’s intentions for handling fees in relation to the nationality measures we are seeking to enact gives comfort to the Committee, and that the hon. Members will feel able to withdraw their amendments.
Stuart C. McDonald
I am grateful to all Members for taking part and the Minister for his response. There have been two separate issues. First, on the new registration provision in the Bill, he has provided some assurance that because it is correcting historic injustices the broad intention will be hopefully to avoid a fee. We will hold the Government to that and watch very carefully.
I hear what the Minister says about the fact there is a system of statutory instruments being laid—we all come here and say our piece and then the Government sets a fee pretty much regardless. In theory, that is fine. However, the lesson we learned about the citizenship registration of kids is that in 1981 the then Government and Parliament as a whole made it absolutely clear that profits should not be made on that registration, and that was fine for 20 or 25 years. But then along came successive Governments that decided to ramp it up.
On a principle as fundamental as this, I still think there is a strong case for putting it in the Bill. If a new Government want to change the approach in the future, they can do so, but they will first have to introduce primary legislation to do that. I do insist on amendment 8. I will insist even more strongly on new clause 16.
Stuart C. McDonald
I am grateful, but that is an argument that the Home Office makes every time we have this debate. We have had Westminster Hall debates and so forth, and it is an awful point. This is the point that I have just been making. Imagine if I were to say to the Minister that we are taking British citizenship away from him and that he could get indefinite leave to remain or apply for five years’ leave to remain or two and a half years’ leave to remain. The long route to settlement involves two and a half years, two and a half years, two and a half years and two and a half years. After 10 years, thousands of pounds and all sorts of uncertainty, he would get settlement, but even that is not citizenship. We would laugh at anyone’s suggestion that we would swap our British citizenship for that. That is not a remotely reasonable justification for not having a fee waiver.
It is the Home Office’s official position that British citizenship is somehow equivalent to the long route to settlement. The long route to settlement is a disgrace, but that is another issue. For goodness’ sake, we are talking about something that I would think Conservative and Unionist politicians would think fundamental. A kid’s citizenship is not a commodity or a service. Leave to remain is not an alternative, so that is not an excuse for not having a fee waiver or for having a fee for kids who are in care.
The right hon. Member for Scarborough and Whitby made plenty of points about the importance of being able to subsidise other parts of the system, and I get that for other reasons, but not for this. The figures show that the Home Office is making a huge profit. Making that profit on visa applications means that tens of thousands of kids who should be British citizens are out there struggling to secure leave to remain, with thousands of pounds of fees. They are being denied access and their rights, stability and security. I ask the Minister to take the issue away and think about it again. I also ask Government Members to think about this issue, because it is not party political. As say, I have had lots of support from Conservative MPs in the past. Let us do justice by these kids. In effect, they are British citizens. Let us make them legally British citizens as well.
As I say, new clause 16 is modest. It is not asking for no fees at all; it is asking for no more than cost price. It is asking for a fee waiver, and it is asking to ensure that people have all these rights. I will definitely press amendment 8, and new clause 16, when we reach it, to a vote.
Question put, That the amendment be made.
Nationality and Borders Bill (Sixth sitting)
Stuart C McDonald ExcerptsTuesday 19th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 October 2021 - (19 Oct 2021)
Bambos Charalambous
It is the view of the Opposition that British nationality law is out of kilter with adoption law in England and Wales and needs to be rectified. In those countries where an adoption order has been made by a court, it may be made where a child has reached the age of 18 but has not yet reached the age of 19; yet such an adoption order confers British citizenship automatically only where the person adopted is under 18 on the day the order is made. It seems evident to the Opposition that that is a slip that results in unnecessary unfairness.
The adoption law as it stands was enacted some 20 years after the relevant nationality law, and apparently the inconsistency that it created was overlooked. It has never been suggested that the adoption law and British nationality law should be out of step where a court in England and Wales authorises a person to be adopted by a British citizen parent. It is important for every member of the Committee to know that the stated problem is not merely a theoretical one; it generates victims in real life, including a university graduate who was 18 but not yet 19 when she was adopted by her aunt after her mother died of cancer, and who will have no basis on which to enjoy family life in the UK with her new adopted mother once her student status has ended.
We therefore believe that the position needs correcting. The Bill is the right vehicle to make that correction, which is not controversial and which we do not believe should divide Committee members on party lines. The amendment, which should command cross-party support, would bring British nationality law in line with adoption law, so that where our courts make an adoption order in respect of a person who is 18 but not yet 19, and the adoptive parent was a British citizen, British citizenship is conferred automatically on the person adopted. No adoption order may be made in respect of a person who has reached the age of 19, so the proposed amendment affects only those who are 18 but not yet 19 when the adoption order is made.
It is also important to point out that it is no answer to the problem to say that an 18-year-old adopted by a British citizen will be able to apply for registration by an adult as a British citizen at the Secretary of State’s discretion under proposed new section 4L of the British Nationality Act 1981, provided for in clause 7. The problem relates to those persons who should be treated as British citizens automatically from the date of their adoption by a British citizen. Where the only solution is a subsequent application for British citizenship at the Secretary of State’s discretion, there is the risk that such an application may be overlooked, or refused on another basis, such that the intention of Parliament to confer British citizenship on a person adopted by a British citizen will be frustrated. We therefore believe that the sole solution is to make this simple amendment to align British nationality law with adoption law.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairship, Ms McDonagh. I will speak in support of amendments 13, 14, 30 and 31. I also support amendments 34 and 35. Amendment 35 in particular seems to make perfect sense—although it relates exclusively to England and Wales. I confess that I have not managed to ascertain whether a similar issue arises in relation to either Northern Ireland or Scotland and, depending on what the Minister says in response, that is perhaps something we can all do our homework on before Report stage.
On the other amendments, this brings us back to the point I made when making the case for no fees for introducing applications, or at least restricted fees. These fees put people off from accessing their rights, especially when there is discretion or subjective criteria are used that mean people can have only a limited idea about whether paying a fee and making an application will result in anything positive happening. If they can afford it and if they know that they meet the criteria, people will pay a fee, but this would not necessarily make it easier to see in advance whether they would be able to show historical injustice or exceptional circumstances, or that the fault lay with the public authority.
We have already debated the fee aspect and made the case for lower fees to ensure that people are not put off from seeking to fix injustices that they have suffered. These amendments taken together address the other side of the coin: what can be done to make the criteria more transparent so that people can feel confident with their applications?
Amendments 30 and 31 seek to ensure that both officials and the victims of injustice are aware of how the provisions brought about by clause 7 are being implemented. If a new type of injustice in UK nationality law is discovered, or circumstances are deemed so exceptional that the Secretary of State decides that registration is merited and she grants such an application, she will first need to ensure that policy and guidance are updated so that those processing other similar applications are aware of that fact and people applying in the same circumstances are successful. More than that, she will also be required to take steps to try and ensure that people who might be entitled to register in the same circumstances know that they can do so.
Again, as I said earlier, we know from Windrush how important taking such action to make people aware of their rights can be. In short, people will have a greater understanding of whether their application will be successful and those who meet the criteria set out in policy will apply. Those who are making decisions will be aware that in previous cases similar applications have been granted and those applications will therefore be successful.
Amendments 13 and 14 challenge a Minister to explain why the provisions introduced by clause 7 are expressed entirely as “may” rather than “must”. If a person proves they are a victim of an injustice, which is carefully defined in the clause, then why should the Home Secretary still have a totally unlimited power to refuse registration in any event? Similarly, if a person shows they were denied citizenship because of an act of omission by a public authority or by exceptional circumstances, why should the Home Secretary have a totally unfettered power to say no?
The big fear is that the Secretary of State has the broadest discretion possible regardless of whether a person meets other criteria. Who will make an application, particularly if there is a fee involved? I can see possible flaws in going completely the other way to a situation where it is a requirement and a must, but that would be better than the totally unlimited discretion that is in the Bill right now. I simply challenge a Minister to come up with a better form of this.
Bambos Charalambous
On amendment 30, we want to make sure that the Secretary of State is required to take all reasonable and necessary steps to ensure that the right to registration under clause 7 is made accessible to all its intended beneficiaries. We also want to ensure that historical legislative unfairness is corrected. We do not believe that it is sufficient to rely on that being done ad hoc, subject to the discretion of any particular Secretary of State.
As has been obvious from discussions on previous clauses, several injustices have been identified in British nationality law in our policy and practice over the years. Important provisions in the Bill are necessary to correct some of that, including changes to previous amendments to the British Nationality Act 1981, which only partially corrected a particular injustice.
The Opposition understand and accept that the broad purpose of clause 7 is to provide the means to correct further injustices, and we broadly support its aims. We are concerned, however, about the implementation of the clause, and the amendment serves to address that.
Hon. Members will be aware that clause 7 introduces a new discretion to register adults as British citizens or British overseas territories citizens where that is immediately necessary or appropriate in view of some historical injustice, an act or omission by a public authority, or other exceptional circumstances. As it stands, that provision is welcome and reflects the underlying purpose of all rights of registration under the British Nationality Act 1981 to ensure that citizenship is the right of all persons connected to the UK or the British overseas territories.
However, given that clause 7 relates to historical legislative unfairness, it raises a concern that it may be relied on by Ministers to avoid making necessary future amendments to the 1981 Act, required specifically to correct such injustice. We are deeply concerned, because when such an injustice is identified, Ministers must take the appropriate action to correct it in the Act. It is not enough to rely on the opinion of any particular Minister or group of Ministers. For that reason, we want to insert the following in clause 7:
“Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—
(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;
(b) amend or make policy or guidance in line with the registration of P;
(c) make that new or amended policy or guidance publicly available; and
(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.”
Clause 7 must genuinely be given real practical effect—it must not become a mere token statutory provision. Registration requires someone to make a formal application, so the clause will be ineffective if uncertainty over the result of an application, coupled with any cost or other impediment to do so, deters people from making applications. In such circumstances, clause 7 could stand redundant on the statute book because no one to whom it ought to apply knows about it or is sufficiently encouraged or enabled to apply for the discretion to be exercised.
For those reasons, the following matters must, at a minimum, be addressed. It is generally inappropriate, as with registration more generally, for the Secretary of State to charge prohibitive and above-cost fees to prevent people from exercising their rights to British citizenship. The fees are made even more prohibitive if it is not possible to assess in advance that an application will be successful because there are no fixed criteria by which the right to be registered will be assessed.
Ministers should also be pressed to give an assurance that when an individual application is successful, there will be positive action to ensure that other potential applicants are made aware of their equal or similar right to register at their discretion. Under amendment 30, if an unfairness, act or omission by a public authority or exceptional circumstances are identified that make it necessary to exercise discretion, appropriate publicity must be given to it, and there should be a formal updating of public-facing policy. It must be made clear that others in the same circumstances will succeed with their applications to register, if they make them; otherwise, people will continue to be excluded from citizenship in circumstances where it is clearly intended that they should not be.
Tom Pursglove
I will deal with each of the amendments proposed, and then I will of course pick up on a number of the points, questions and challenges that have been raised throughout the course of this debate.
I thank the hon. Members for Enfield, Southgate and for Halifax for having tabled amendment 35, which would allow a person to become a British citizen automatically following their adoption in the UK if the order was made after the age of 18 but before the age of 19, but the adoption proceedings started before their 18th birthday. I have noted the unusual situation, highlighted by hon. Members, in which newly adopted young people can find themselves as a result of differences between the Adoption and Children Act 2002 and the British Nationality Act 1981. An adopted person can automatically acquire British citizenship, provided they are under 18 on the date the adoption order is made. However, under the 2002 Act, it is possible for an adoption order to be made where someone is already 18 years old but has not yet turned 19.
I am aware of cases in which individuals are affected by those nationality provisions, and I have some sympathy for them. However, I am also conscious that a person aged 18 will normally be capable of making their own life choices. At 18, someone can purchase alcohol, accrue debt, join the Army, or vote in an election. From a legal standpoint, at 18, an individual is fully fledged and can theoretically live independently of other family members. It is therefore consistent that a person aged 18 or over who is seeking to acquire British citizenship should normally do so only on the basis of their personal connections with this country, not those of their new family.
I must consider the wider position of adopted children, and I am satisfied that to extend the nationality rules to cover persons who have attained the majority would move nationality out of step with immigration routes. For example, young people over the age of 18 must meet the requirements of the immigration category they are applying in, and are unable to rely on other family members for a claim to residence. I have sympathy for those young adults who feel that they have lost out, but other routes are available that would allow them to choose whether they wish to naturalise or register as British citizens.
Turning to amendment 13, again I thank hon. Members for tabling the amendment and for drawing attention to clause 7, which we believe is a positive move that will allow the Home Secretary to grant British citizenship to those who have missed out on acquiring it, potentially due to reasons beyond their control. Clause 7 will apply to anyone who
“would have been, or would have been able to become, a British citizen but for—
(a) historical legislative unfairness,
(b) an act or omission of a public authority,”
or their exceptional circumstances. This means that the clause covers not just those who would have become citizens automatically, but those who might have had an entitlement to registration or could have registered or naturalised at the Home Secretary’s discretion. As such, we think it right that the provision remains discretionary, to allow the Home Secretary to take into account the criteria that she might have taken into account at the time.
Stuart C. McDonald
I will have to give some further thought to what the Minister has just said. I take the point about people who would have had to register—therefore, there is still an element of discretion. However, will he look again at the case of those who would have automatically had that citizenship and whether there really should be such broad discretion in cases where people have missed out on citizenship because of historical injustice or exceptional circumstances?
Tom Pursglove
We will no doubt debate this in great detail in due course. As I say, we are putting in place an improved access to justice offer more generally through the Bill.
Stuart C. McDonald
There is an absolutely fundamental distinction between naturalisation and registration. We are talking about people who would have had an automatic right to citizenship, which is completely different from naturalisation altogether. Again, I am still struggling to understand why there has to be such broad discretion. People have lost their automatic right because of historical injustice, and the danger that has been highlighted by Members is that that will put folk off applying. Will the Minister not even think about some restrictions on the degree of discretion that the Home Secretary has, or at least provide detailed guidance on when she will exercise that in people’s favour?
Tom Pursglove
I want to pick up the points that have been raised by the hon. Members for Bermondsey and for Old Southwark and for Cumbernauld, Kilsyth and Kirkintilloch East. Clearly, the guidance is a very important element of the immigration system, so that people can understand very clearly what is required and precisely how cases will be handled. I am always in favour of trying to make such matters more transparent and to improve guidance wherever we can, and that is always ongoing work. I take on board the point that has been raised, and I will certainly reflect on it.
As I say, Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised. This works, and we intend that published guidance will also be available for the new adult registration route. The fact that the Home Secretary is not obliged to naturalise a person does not therefore impact practically on most applicants. However, we want to maintain the ability to refuse applications from people who might meet the requirements, but are nevertheless unsuitable to become British citizens.
Where registration is set out in legislation as an entitlement, it needs to be more tightly set out so that there is no doubt as to who does and does not benefit. Because of the historical nature of citizenship and the fact that issues can crop up that we might not have been aware of, we need the flexibility to be able to consider someone’s circumstances without being overly prescriptive. Equally, we recognise that people can be affected by a number of circumstances, which may be difficult to set out in detail. We are not making this a discretionary provision in order to refuse deserving people, but to allow us to respond to situations that cannot reasonably be foreseen.
I understand that hon. Members may wish to seek assurance that people who have missed out in the past will be granted citizenship, but we think that this can be achieved through a discretionary route, which will allow us to take into account all the circumstances of a case. That is why we are introducing the various provisions in the Bill in the first place: to right those historical wrongs. We want this to work.
On amendment 30, again, I thank the hon. Members for tabling the amendment. The new adult discretionary registration provision will allow the Home Secretary to grant British citizenship to anyone who would have been, or would have been able to become, a British citizen, but for historical legislative unfairness, an act or omission of a public authority, or the exceptional circumstances in play. I understand hon. Members’ concerns that that power should be used fairly and consistently, which is right.
Each case will be considered on its own merits, taking into account the particular circumstances of that person, including the reasons they were unable to become a British citizen automatically, through registration or through naturalisation. On that basis it would be unnecessary to have a legislative clause that effectively causes us to treat like cases in a similar way, because applications will be decided in line with the legislation and guidance.
I have already mentioned that we intend to publish caseworker guidance setting out when we expect that this power might be used and the sort of circumstances we will take into account. Of course, that is done very transparently and can be seen by hon. Members and by people out there seeking access to those routes. As I think is my colleagues’ intended purpose in proposing the amendment, that will help to maintain consistency in decision making.
However, I am not convinced that that would be helped by a statutory requirement to produce or amend guidance every time a person with different circumstances is registered. There may be concerns about reflecting an individual’s circumstances in published guidance, even if anonymised. We will reflect the overarching principles in guidance and amend as appropriate. Guidance will continue to be published on the gov.UK website. I can also assure hon. Members that work is done within UK Visas and Immigration to ensure consistency of decision making, particularly when a new route is introduced, and I think that that is right and proper.
I do not think we can commit in statute to publicise any grants of citizenship to people in a similar position. As I have said, we will publish guidance setting out the approach we will take and make it available to potential applicants, but it would not be right to impose a statutory requirement to do so. Indeed, some of those registered will be in unique positions and it would not be possible to identify others who might qualify on the same basis.
The reporting obligation set out in the amendment would require the Home Secretary each year to report any historical legislative unfairness that had been identified in registering a person under clause 7 and say how she intends to correct it. Perhaps it would help to clarify that the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario.
Bambos Charalambous
The clause seeks to enable the Secretary of State to waive requirements for naturalisation as a British citizen under section 6, naturalisation as a British overseas territories citizen under section 18, or registration as a British citizen under section 4 of the British Nationality Act 1981. At present, there is no power to waive the requirement to have been present in the UK at the start of the qualifying period except in relation to applications for naturalisation as British citizens from current or former members of the armed forces, which presents a barrier in otherwise deserving cases.
The immediate necessity for the clause arises from the circumstances of people of the Windrush generation, many of whom were deprived of their rights to register their British citizenship by the Home Office’s failure to ensure that people were aware both of their rights and of the need to exercise them. It has since become necessary to use naturalisation without a fee as a means to put people in the position they should have been in all along as British citizens. However, since some people were wrongly exiled from the UK, the remedy has been inadequate for some people who were only recently able to return.
The main barrier stems from the requirement for naturalisation that a person must be present in the UK at a fixed point five or three years before the date of their application to naturalise. The clause therefore seeks to amend the 1981 Act to allow the Secretary of State to waive the requirement that the individual must have been present in the UK or relevant territory at the start of the qualifying period in the special circumstances of a particular case. The waiver will be introduced in relation to the requirements to naturalise a British citizen under section 6 of the 1981 Act, to naturalise as a British overseas territories citizen under section 18 or to register as a British citizen under section 4.
The clause would not have been necessary had the Windrush scandal not happened in the first place, and we wish to place on the record our concerns that it happened because of the hostile environment that was created by the Home Office. Although we welcome clause 8 and will support it, we wish that it had never been necessary because of the injustice of what happened to all those people.
Stuart C. McDonald
I want to pick up on one thing the shadow Minister mentioned in his speech. He is right that the most profound implications of the clause relate to the correction of wrongs that were done to the Windrush generation, but I slightly disagree with him when he says that it would not have been necessary but for that.
Certain nationality applications always have caused some awkwardness. In the dim and distant past, when I was one of these wicked immigration lawyers, I would have people come to me who were applying to register, and the requirement that they had been in the country five years ago at the start of the residency period would sometimes cause problems. I do not know what I was doing five years ago today, and sometimes it would require a hell of a lot of checking to work it out.
There were the odd occasions where the Home Office kindly returned the applications, because it was going to have to refuse them as the person had perhaps gone abroad for a couple of weeks five years ago. If the Home Office had not done that, it could have just banked the fees and refused the application. The most profound implication is in relation to Windrush, but I think overall that this is a good thing to do anyway and a slightly broader discretion is welcome.
Anne McLaughlin
I want to acknowledge the people who were caught up in the Windrush scandal and their tenacity in hanging on in there and sticking it out. I also want to recognise all the different campaign groups, activists and supporters, friends and families of those who suffered so much because of the scandal. I want to take every chance I get to put that on the record.
I regularly talk about feeling frustrated in this place when I passionately argue the case for something or someone but almost never get anywhere—sitting here today, it is of course always going to be nine Members on the Government side and seven on the Opposition side—but I underestimated the importance that people place on MPs speaking up for them and acknowledging their injustice, and I never will again. I did not think it would make such a difference, but it really does make a huge difference to people. That is why, as the SNP’s immigration spokesperson, I take any opportunity to say that what happened to the people who came here as part of the Windrush generation was utterly wrong. Even the solutions went wrong, and there were delays and complications. This clause, today, is good, but that is only right.
Tom Pursglove
The clause amends the provision for registering a child as a British citizen or British overseas territories citizen when the child was born in the UK or a territory and has been stateless since birth. Although it applies to both British citizenship and BOTC, it addresses an issue specific to the UK, so I am going to talk about British citizenship. However, parallel changes will be made in relation to BOTC.
It may help if I put the issue in the context of all children born in the United Kingdom. Since 1983, a child born in the UK will be a British citizen automatically only if one of their parents is a British citizen, is settled in the United Kingdom or, from 13 January 2010, is a member of the armed forces.
“Settled” is defined in the British Nationality Act 1981 as being ordinarily resident in the United Kingdom and not subject to an immigration time restriction on their stay. That effectively excludes those whose parents only have limited leave to remain or are here illegally. Those exempt from immigration control because of diplomatic service or as members of visiting forces are also not regarded as settled. Any child born in the United Kingdom after 1 January 1983 who was not a British citizen at birth has an entitlement to register as a British citizen if the parent becomes a British citizen or settled in the UK, if the parent joins the armed forces, or if the child lives here for the first 10 years of their life.
In addition, there is provision for children born in the UK who would otherwise be stateless to acquire citizenship. If a child is born in the UK to a parent who is a British overseas territories citizen, British overseas citizen or British subject and would otherwise be stateless, they will acquire the same nationality as the parent. Alternatively, if a child is born in the UK and is, and has always been, stateless, they can apply to be registered as a British citizen before their 22nd birthday based on a period of five years’ residence. Those provisions enable us to meet our obligations under the convention on the reduction of statelessness. That means that if a child is stateless and has had no other citizenship or nationality from birth, they can effectively be registered on reaching the age of five—rather than after the age of 10, like other children born in the UK.
The UK, like many other countries, allows for citizenship to be acquired by descent by a child born abroad to a parent who holds that status by birth. Under most countries’ citizenship laws that happens automatically, but some countries require the parents to register a child’s birth for the child to access citizenship. That is the case for India and Sri Lanka, where a child’s birth needs to be registered at a high commission if they are to be recognised as a citizen.
We are aware that increasing numbers of non-settled parents in the UK are actively deciding not to register their child’s birth at the embassy or high commission, and thus failing to secure their child’s entitlement to their parents’ nationality by descent.
Stuart C. McDonald
The explanatory note just says that there have been cases. This is a very serious change. Can the Minister give us examples of analysis that has been done and the types of circumstances in which such decisions are taking place? Tell us about the scale. I see no evidence of a significant problem, whereas I do see that the clause could cause significant harm.
Stuart C. McDonald
I wish to echo everything the shadow Minister said in outlining why we passionately oppose the clause. As I said in earlier speeches, and has been illustrated by many hon. Members, citizenship is fundamental to a person’s identity. It provides a status and security that no visa or immigration leave can ever match. When talking about statelessness, we may sometimes be talking about people who have neither citizenship nor any immigration status. Organisations that work with stateless kids have provided myriad case studies and examples of the dreadful impact that it can have on them. In essence, they are one of the groups most deserving of our protection and consideration—those without any citizenship at all. Without citizenship, a whole host of other rights become almost impossible, leaving that person with a huge gap in their identity, security and sense of belonging.
We talk often about children who belong to recognised stateless populations, such as Kuwaiti Bidoon, Kurds, Rohingya or Palestinians. Also, there are children who suffer from discrimination under the nationality laws of other countries—the same type of discrimination that has existed and that we have been trying to correct in British nationality law. They could be children in state care, for example, particularly if one of the parents is not available or not co-operative in proving links or nationality.
As matters stand, stateless children and young adults under 22 can register as British if they were born here, have always been stateless and meet the five-year residency requirement. Even now, it is not always a straightforward process, as has been explained by the European Network on Statelessness. Lots of hurdles remain: we have touched on registration fees, as well as lack of knowledge and awareness of the rights of stateless children and challenges in providing proof. I would be keen to rectify that, but instead, for some reason, the Home Office is taking it upon itself to erect further hurdles, making it more difficult, not easier, for children under 18 to be registered as British. Clause 9 restricts access to registration of stateless kids, and is worded in such a way that it gives a broad discretion to the Secretary of State to decline applications, which we believe is in breach of international law.
We have not heard at all from the Government today what assessment they have made of the impact that will have on statelessness. There is no doubt in my mind that it will increase statelessness among children, but that does not appear to have been weighed up in the Government’s reckoning. That is absolutely contrary to the intention of the 1981 Act, which rightly set out to reduce statelessness.
There are three key points: first, the case has simply not been made. There is a bland assertion in the explanatory notes that there have been cases where parents have made that choice. But today, despite pressing for some sort of analysis of the scale of the issue, essentially what we have been given is one extreme case, as the shadow Minister said. I am utterly unconvinced that there are lots of parents going underground and running away from the Home Office all for the sake of trying to secure statelessness in this manner. That case has simply not been made today. That is a wholly inadequate explanation. It actually reflects where Home Office policy making sometimes goes wrong: isolated examples where the rules have arguably been used for purposes slightly beyond how the Home Office would like them to be used are identified, and then an utterly disproportionate response is forthcoming, which may be able to stop those isolated cases but also stops a lot of absolutely deserving cases, and impacts on totally innocent individuals. To put it succinctly, the baby is thrown out with the bath water.
We have called for greater detail: how many cases? We need more examples than one extreme case. What, ultimately, is the problem? There was a lot of talk about queue jumping, but it does not impact on others who perhaps have to wait 10 years for registration. Their rights are not impacted at all. At the end of the day, in one extreme case, a child who has done nothing wrong may end up registered as British five years before they otherwise might be.
Secondly, on international laws, the shadow Minister says that in our view this is in breach of the 1961 UN convention on the reduction of statelessness. The Minister made the case that the UNHCR guidelines on statelessness allow a small discretion for the state to withhold conferring citizenship where the nationality of a parent was available to the child immediately, without any legal or administrative hurdles, and could not be refused by the other state concerned. However, the wording of clause 9 goes significantly beyond what is allowed in the guidance. The clause will insert new paragraph 3A into the British Nationality Act 1981, with subsections 1(d) and 2(c) both going beyond what is permissible. The former appears to allow the Secretary of State some evaluative leeway about what is and what is not possible in terms of accessing another nationality. The question is: why not leave that as a pure question of fact? The latter subsection also introduces leeway where neither the convention nor guidance allows for it. Instead, the very limited exception that is allowed is where the other nationality is available to the child immediately, without any administrative impediments, hurdles, fees or similar obstacles, so I fear that the Home Office will end up in court again.
My final and most important point is that this will cause so much more harm than good. There has been no indication at all that the Home Office has undertaken any sort of balancing exercise. Whatever problem the Home Office is trying to fix—essentially, we have had an anecdote—the damage that will be done goes way beyond it. Families will not risk a huge fee if they have all sorts of doubts about what the Secretary of State will do with her discretion. We fear that many more people risk being unreasonably refused registration, prolonging their statelessness. Where is the assessment of the best interests of the children involved? Where is the assessment of the number of stateless kids who may be impacted by the Bill? There really has been a wholly inadequate justification for it.
I have a final plea to the Minister. Even if he will not revisit the need for some sort of response to the type of case that he has identified and spoken about today, will he at least revisit how far the clause is going? As I say, it is our strong view that it might have prevented that anecdotal case from happening, but it will cause all sorts of damage way beyond that. We also think that the wording is inconsistent with the UN guidelines that the Minister has cited. If he still feels compelled to do something, he should at least revisit how the clause has been worded. Otherwise, I think he will very much regret that the outcome will simply be thousands more stateless kids in the United Kingdom.
Anne McLaughlin
The UK is bound by the 1961 UN convention on the reduction of statelessness, as we have heard. That focuses on protecting the stateless child and preventing childhood statelessness. It requires only that the applicant is stateless, and not that they cannot reasonably acquire another nationality, as it says in the Bill. The UK Government say there is a problem that needs addressing through clause 9 and that would justify departing from the safeguards established by the convention, yet no evidence is offered.
As my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has just said, he intervened on the Minister to ask for the evidence. The Minister said he had a long speech and would come to that, but he did not do so. He gave one piece of anecdotal evidence. I know that much of the Bill will have been drafted prior to his recently coming into the role, and I appreciate that this must be a baptism of fire for him, but I ask him to look more closely at the Bill. Why introduce it, if there is no evidence that there is an increase in abuse? There is no evidence. If there is no evidence, there is no problem, and if there is no problem, there is no need for clause 9. The UK Government really must not legislate to enable breaches of the commitment in the 1961 convention and the principle of the best interests of the child in UK domestic law.
Oral Answers to Questions
Stuart C McDonald Excerpts(2 years, 6 months ago)
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Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I and my colleagues, from the bottom of our hearts, send our deepest condolences to the family, friends and colleagues of both Sir David Amess and James Brokenshire. It is fair to say that, in short, everyone knew Sir David and everyone liked and respected him, without exception.
I shadowed James Brokenshire as Immigration Minister in my first year in this place, and he made my job 10 times tougher, not only because of his mastery of the brief, but because he, too, was a person whom it was impossible not to respect and to like and we will sorely miss him.
At the last Home Office questions, the Home Secretary suggested that I had not read the Nationality and Borders Bill when I said that it would see Uyghurs, persecuted Christians and Syrians fleeing war prosecuted and sentenced to prison, but I have read it and that is precisely what clause 37 will do. I welcome the Minister to his place, but if he does not want to see Uyghurs, persecuted Christians and Syrians prosecuted and imprisoned, will he take that clause out of the Bill?
Tom Pursglove
I would expect nothing less from the hon. Gentleman given that we are beginning line-by-line consideration of the Bill tomorrow in Committee. I have no doubt that he will have studied every single clause very carefully and will be interrogating me on each of them. We do not want to see anybody persecuted. As I have said previously, as a country and as a Government, we are absolutely determined to make sure that there continue to be safe and legal routes, so that people who qualify can continue to access sanctuary in this country. Also, of course, through our international engagement, we always press home that human rights must be respected and upheld at every turn.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Having expressed our condolences, can we also express our thanks both to you, Mr Speaker, and the Home Secretary for the work that is already ongoing to review and improve our security? I agree with the Home Secretary that we must make it our mission both to improve safety and to protect the close links between the public and their representatives, but does she agree that this must be true at all levels of democracy? I would mention in particular our local councillors, who are at the coalface and often doing surgeries alone week in, week out.
Priti Patel
The hon. Gentleman is absolutely right. I pay tribute to all elected representatives across the United Kingdom, because they conduct themselves with great determination day in, day out, and I can assure the hon. Gentleman and the House that work is taking place through the Cabinet Office to look at the right kinds of measures and support.