Draft Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Chair
Before I call the Minister to move the motion, I remind Members, particularly those on the Back Benches, that if they want to catch my eye, they should bob, as per the usual convention.
The Minister for Countering Illegal Migration (Michael Tomlinson)
I beg to move,
That the Committee has considered the draft Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024.
What a great pleasure it is to serve under your chairmanship, Ms Bardell. I think it is the first time that I have had the privilege to serve with you in the Chair. It is good to welcome hon. and right hon. Members to this Committee.
These regulations seek to add Georgia and India to the list of safe countries of origin. The inadmissibility of asylum claims has been a long-standing process in the UK. Under the Nationality, Immigration and Asylum Act 2002, the Secretary of State must declare an asylum claim made by a national of an EU member inadmissible unless there are exceptional circumstances. These provisions will reduce pressures on our asylum system and allow us to focus on those most in need of protection, but it is right to say that it is not only EU states that are safe countries. As soon as section 59 of the Illegal Migration Act 2023 is commenced, these provisions will be expanded to include the inadmissibility of asylum and human rights claims from other states considered generally safe.
The list of safe countries of origin comprises the EU states, as now. It also includes other European economic area states, namely Iceland, Norway and Liechtenstein, as well as Switzerland and Albania. The rationale underpinning the proposed addition of India and Georgia to the list is that that will tackle unfounded and unnecessary protection and human rights claims from people who are in safe countries. India and Georgia are countries in which we have seen an increase in the volumes of asylum intake, so consideration has been given as to whether it would be appropriate to add them to the list of safe countries of origin. Having reviewed the relevant information and evidence from a wide range of reliable sources relating to the safety of Georgia and India, including consideration of their respect for the rule of law and human rights, we assess that both countries meet the criteria as set out in section 80AA(3) of the 2002 Act and are generally safe, so it is appropriate to add these countries to the list.
Chris Stephens (Glasgow South West) (SNP)
Declaring a country to be safe does not necessarily make it safe. Can the Minister tell me how many asylum claims were granted by the Government from Georgia and from India in the last two years?
Michael Tomlinson
I can tell the hon. Gentleman that there has been an increase in the number of those claiming asylum from those countries; I said that a few moments ago. They are countries where we have seen an increase in the volumes of claims. There has been double the number of claims coming from India in the 12 months to September 2023 and triple compared with the year ending September 2019. In relation to Georgia, the volume is nine times higher. This statutory instrument is short and its focus is narrow, but it is important, and for the reasons that I have set out, I commend the regulations to the Committee.
Stephen Kinnock (Aberavon) (Lab)
It is a pleasure to serve under your chairmanship, Ms Bardell. As the Minister has explained, these regulations mark another step toward implementation of the few parts of the Illegal Migration Act 2023 that have actually come into force since it received Royal Assent, the key sections on the duty to detain and remove asylum seekers arriving by small boat, among other provisions, having apparently been accepted as unworkable by the Government, at least for the time being—but, maybe that is a debate for another day. The current list of safe countries of origin from which it is expected that, in general, people will not have grounds for asylum in the UK is set out in section 80AA of the 2002 Act as amended by section 59 of the Illegal Migration Act. Historically, during the time in which the UK was part of the EU, the designation of safe countries of origin applied mostly to other EU and European economic area member states. Those countries remain on the list, with the more recent addition of Albania, and with Georgia and India now marking the first significant expansion of that list beyond the EU and EEA.
The Opposition are broadly supportive of these changes in principle, notwithstanding a few important questions. The Minister’s answers would be much appreciated. As he kindly explained, the context of these changes includes a recent increase in the number of asylum claims from nationals of those two countries. More often than not, these claims are rejected by the Home Office. For Indian nationals, the grant rate has not exceeded 10% in recent years. It follows that a general presumption against asylum claims from such individuals is a reasonable approach for the Government to take. However, there remains a significant minority of claims that are ultimately successful, particularly with respect to Georgia, where the grant rate has fluctuated between 15% and 30%. As such, it is important that Ministers make clear to decision makers in the Home Office the kind of circumstances in which it is likely to be considered appropriate for exceptions to be made to the otherwise automatic declaration of claims as inadmissible. As yet, this has not been made as clear as we would like.
As ever, a helpful report on these regulations by the Secondary Legislation Scrutiny Committee cites the Home Office’s own country policy and information notes as recognising, in the case of India, that there are risks:
“Human rights abuses including rape, torture, and deaths in custody are reported to be widespread and conducted with impunity. Excessive force by security forces in areas of conflict are also reported, including extra-judicial killings, rape, torture, arbitrary detention, kidnappings and destruction of homes”.
In Georgia, the relevant note recognises:
“High-profile government opponents and managers of media channels opposed to the government may be subjected to…politically-motivated prosecution”
and detention with a politically biased judiciary. The Home Office currently takes a nuanced approach that recognises that, in spite of a relatively low grant rate for Georgian and Indian asylum seekers overall, there remain situations where discretion can, should and must be exercised for certain individuals.
Following the entry into force of these regulations, it is important that Home Office decision makers are provided with updated guidance at the earliest possible opportunity to reflect the addition of those countries to the section 80AA list and, crucially, the kind of circumstances in which an exception to the requirement to declare claims inadmissible should be made. Can the Minister confirm whether or not such up-to-date guidance has been published by the Home Office for the decision makers? If the guidance has not yet been published, would he give a clear indication of when the Department will do so?
It should also be noted that what marks Georgia and India out from many other countries of origin for asylum seekers is the fact that, in both cases, the UK has a bilateral agreement on migration returns. A broad agreement with India on a range of migration-related issues, including the return of people “in an illegal situation” was announced in May 2021, and has thus been in place for some time. The impact of this agreement on the actual number of returns has been less than Ministers may have been hoping for. In the 12 months to September 2023, there were 4,710 asylum claims from Indian nationals. During the same period, however, the number of asylum-related returns was a paltry 302. How does the Minister explain the still relatively low number of returns, particularly of failed asylum seekers, to India since the agreement with India came into effect? Secondly, does he recognise that the addition of India to the list of safe states in section 80AA will make it all the more important for the Governments of both countries to identify and address any barriers to such returns, if the intended effects of these regulations are to be seen in practice? If so, can he tell us what specific actions are being taken in this regard?
With respect to Georgia, a bilateral agreement in the form of a treaty was laid before Parliament in February 2023. That agreement relates specifically to the readmission of persons residing without authorisation and is thus somewhat narrower in scope than the agreement with India. Can the Minister tell us what assessment the Government have made of the agreement’s impact on the level of returns from the UK to Georgia, both in terms of the overall number of asylum-related returns and the percentage of failed asylum seekers who were returned, both before and after the agreement came into effect?
Another significant area of uncertainty relates to whether the addition of any new countries, such as India and Georgia, to the section 80AA list will affect the decision-making process for claims that predate these regulations. The House of Lords Secondary Legislation Scrutiny Committee asked the Home Office the entirely reasonable question of whether the inadmissibility rules will be applied to such claims retrospectively. The Committee received no answer to that question, which I must therefore put to the Minister today. What impact, if any, will the addition of these two countries to the section 80AA list have on outstanding asylum claims that predate the entry of these regulations into force?
Chris Stephens
It is a pleasure to have a comrade in the Chair, Ms Bardell, and I would like to indicate that I will oppose this particular instrument today. As the Minister outlined, it would have the effect of declaring all asylum and human rights applications made from India and Georgia inadmissible unless there are exceptional circumstances. Where a claim is declared inadmissible, it will not be substantively considered on its merits. In addition, when the duty to make arrangements for removal under section 2 of the Illegal Migration Act 2023 comes into force, nationals of these states listed, including India and Georgia, could be removed to their home country unless the Secretary of State considers there to be exceptional circumstances.
There are difficulties with declaring India and Georgia safe countries. I have asylum seekers in my Glasgow South West constituency, some of whom are from Georgia and whose cases the Home Office has accepted. Given that the Home Office has accepted asylum claims from people from Georgia and India, I find it quite bizarre that we are just now declaring these countries to be safe. As I said earlier, that does not necessarily make it so.
The blanket inadmissibility of asylum claims is extremely concerning and deeply problematic, as we have already seen with the Rwanda policy. I note, as does the Opposition spokesperson, that the Secondary Legislation Scrutiny Committee received a submission that suggested that
“human rights abuses in both countries may be significant and widespread.”
The Minister did not refer to that in his opening remarks. I hope that he will explain what the Government’s response is to that note, which suggests there are human rights abuses in both India and Georgia deemed to be significant and widespread.
The 29% of asylum claims granted to Georgian nationals in the year to September 2022 and the 16% granted in the year to September 2023 suggest that a significant percentage of claims that would have been granted previously are to be ruled inadmissible under these regulations. We therefore have 29% and 16% of people who would have had their claims ruled inadmissible if these regulations had been passed a year or two earlier. If Georgia is indeed a safe country, why are the Government accepting so many claims from there?
In closing, the Immigration Law Practitioners’ Association, in its joint briefing with Rainbow Migration on this measure, has highlighted the fact that the changes would strip Indian and Georgian nationals of their ability to make admissible human rights applications. That includes those seeking lawfully to extend their stay or enter the UK on the basis of human rights. That does not in any way advance the supposed purpose of the Illegal Migration Act. That is why I will not be supporting the measure today.
Mr Ben Bradshaw (Exeter) (Lab)
I, too, have a number of questions for the Minister, and concerns about matters on which I hope he might be able to reassure me. I notice that, in his response to the question from the hon. Member for Glasgow South West about the numbers, the Minister talked about percentages, but not about actual numbers. I would be grateful if he gave us the actual number of applicants in the past year from those two countries. Could he also confirm the figures in today’s Times, which said that the number of successful applications in the last year from India was 17 and 14 from Georgia? That would indicate that the overall numbers of applicants from those countries are not as large as the impression he created with his percentage increases.
I assume, as did my colleague from the SNP, the hon. Member for Glasgow South West, that all of those cases were subject to the very vigorous Home Office processes and were therefore genuine. I would be interested in the grounds on which those cases were granted refugee status and how many involved LGBT people.
I will confine the rest of my remarks to the plight of LGBT people in both of those countries because, as has been mentioned, UK charities that work with LGBT refugees have provided this Committee with a number of compelling and horrific case studies of successfully resolved applications from both India and Georgia involving LGBT people who have suffered terrible abuse and persecution in those countries because of their sexual orientation or gender identity. And yes, while the legal frameworks applying to LGBT people in those countries have improved in recent years, the reality on the ground for many LGBT people has not. Persecution and violence against them is still widespread, with the perpetrators often acting with impunity and the state turning a blind eye—and in some cases actively encouraging that violence.
The most recent United States State Department reports on those countries does not consider either of them to be generally safe. On Georgia, it highlights violence or threats of violence targeting lesbian, gay, bisexual, queer and intersex people and activists, and Government-sanctioned impunity for the perpetrators. In the Russian-occupied regions of Abkhazia and South Ossetia, the situation is even worse. The State Department’s report on India raises similar concerns about violence targeting LGBT people and impunity for the perpetrators.
Recent legal cases in Canada and Germany have approved refugee status for Indian and Georgian nationals based on sexual orientation or gender identity and, as others have mentioned, the Home Office’s own CPINs on India, in both June and December last year, highlighted discrimination and violence against LGBT people, particularly in rural areas. That includes arbitrary arrest and detention, and impunity for widespread human rights abuses including rape, torture and death in custody. I would like to hear from the Minister how he and the Government reached the conclusion that both countries are generally safe, particularly when it comes to LGBT people, and what assessment was made of the safety of LGBT people in the face of that violence, often from families, religious communities and the police.
How does the Minister expect that such cases will be dealt with now? Will they qualify for the exceptional circumstances provision that he mentioned? If so, how will that work? There are no guarantees or explanations in any of the papers with which we were provided before the Committee as to how that would work. I am really worried that people who have, quite rightly, been granted refugee status in this country on the basis of LGBT status and persecution—a very small number—will no longer qualify and will simply be turned away and sent back to be subjected to violence and potentially death.
I will finish by saying this: the reason that these questions are particularly important is that there is a great deal of concern in this country that the Government are rowing back on more than two decades of political consensus about the right to asylum for LGBT people based on the real risk of persecution or serious harm. That followed the really terrible comments, I have to say, by the previous Home Secretary, who suggested that the persecution of LGBT people should not be grounds for refugee status, despite the fact that the proportion of asylum claims based on sexual orientation or gender identity is absolutely minuscule. I will be grateful for reassurances on such matters from the Minister and for answers to my questions.
Sarah Owen (Luton North) (Lab)
It is a pleasure to see you in the Chair today, Ms Bardell.
I take note of all the points made by the Minister, but I will echo some of those made by our shadow Minister and the SNP spokesperson. In particular, I have three main points or questions about India that I would be grateful if the Minister clarified. First, when referencing India as a completely safe state, does that include the Indian-controlled Jammu and Kashmir region, especially in light of the Indian Government’s revocation of article 370, whereby it now fails to recognise Jammu and Kashmir as a separate state?
My second point follows on from those made about LGBT rights, and about women and violence against women and girls in particular. Human Rights Watch has said that there have been 31,677 cases of rape in a year in India. That is 87 daily cases of rape against women and girls, and we know that there is huge under-reporting. That is an astonishing figure, and it is one that is getting worse. The picture is the same for so-called honour killings. In 2020, 25 honour killings were reported, but only one in 2017 and 2018, so the situation is getting worse, not better—again, even in the light of what we know about the serious under-reporting of both crimes.
My third point is about Rohingya Muslims. Last year, the Indian Government forcibly returned Rohingya women to Myanmar, despite calls for the deportations to stop. My question to the Minister is simple: what has changed? What does the Minister believe has got better in recent years to move India back on to the safe list? International organisations such as Human Rights Watch and Amnesty International have said repeatedly that the situation is getting worse, not better, particularly for women and girls.
John McDonnell (Hayes and Harlington) (Lab)
I am not a member of the Committee and therefore do not have a vote. If the motion is carried, however, I will seek a vote on the Floor of the House at some stage, or a deferred Division.
I am the secretary of the NUJ—National Union of Journalists—parliamentary group, and the issue for us, which also relates to all the other issues raised with regard to the LGBT community, is that we have to convince ourselves that a country is safe before we pass legislation such as this. I will speak specifically about Georgia, drawing on the evidence before us. This has been raised already, but I am concerned that we have not seen a specific impact assessment for the individual countries updated by the Government.
The information that we can draw on, as my hon. Friend the Member for Aberavon said, is the Government’s own country policy and information note from the past, which drew particular attention to the way in which the Georgian Government act with impunity, largely as a result of their influence on the judiciary. It also drew attention to the physical attacks on anyone who in any way opposes the ruling party in Government. In addition, the note draws attention to the way in which public defenders, media observers, non-governmental organisations, journalists and opposition parties are claiming that criminal prosecutions are being brought against them.
Specifically, media sites or their owners have been targeted. The Government’s own country policy and information note on Georgia is fairly stark, and argues that journalists are being
“prevented from reporting on key issues and face censorship, harassment, verbal abuse and dispersal when reporting on public events or posing critical questions”.
Georgia is certainly not safe for those who stand up for human rights or for journalists.
Reporters Without Borders, which the NUJ works with, draws up and publishes an annual world press freedom index. On Georgia, it said:
“Verbal and physical assaults on journalists are frequent, including by senior government officials, especially during election campaigns. A sustained and brutal assault on 50 reporters during homophobic counter-demonstrations in July 2021, in front of impassive security forces, marked an unprecedented setback. The lack of transparency and progress in the investigation of the event”,
and a three-and-a-half-year sentence for the director of one of the independent TV channels all point towards a culture of near-impunity for attacking journalists and putting their lives at risk in Georgia.
The Government’s original assessment in the CPIN was reflected by our partners elsewhere. The United States Department of State’s country report echoes the point about significant human rights abuses and reports on
“crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, and intersex persons and activists.”
When those crimes are reported by journalists in Georgia, they themselves get attacked. That report’s executive summary says:
“The government took steps to investigate some officials for human rights abuses, but impunity remained a problem. The government’s failure to credibly investigate and prosecute the organizers of July 2021 violence in advance of the Pride March resulted in impunity for those abuses. Lack of accountability also continued for the inappropriate police use of force against journalists and protesters during June 2019 demonstrations and the 2017 abduction and rendition from the country of Azerbaijani journalist and activist Afgan Mukhtarli.”
This is a country that our Government allege is safe, yet we see detentions and renditioning—all illegal, and specifically targeted against journalists.
Hon. Members present should note that Germany has now accepted claims from people from Georgia who are gay because they feel they have not been protected in the country and that they are being targeted. All the evidence before us leads to the conclusion that Georgia is not a safe country. It is certainly not safe for those who stand up for truth and justice, including journalists, and it is certainly not safe for the LGBT community, and the practice of the Government demonstrates that, exactly as has been said. The figures that have been cited are pretty stark. One in three claims from Georgia were accepted in 2022, under our existing system, and one in seven were accepted in 2023. If these regulations go through, we will be putting a large number of people at risk of physical abuse and detention. Indeed, with the levels of violence targeted against journalists and others in Georgia, I believe that in some instances we will be putting people’s lives at risk.
For most of us, these delegated legislation Committees take place in less than five minutes. People come along, and if they are delayed any longer, they look at their phones and do a bit of their correspondence. This one is different. This one is about life and death for some people and physical safety for many others. Therefore, we need to take this seriously. The Government need to come up with more justification if they want hon. Members to vote for this. If there is not a vote today, I hope we can secure one on the Floor of the House, because although the Government might come up with a serious argument as to the rationale for this between now and then, at the moment I cannot for the life of me see one.
Michael Tomlinson
May I say in response to the right hon. Gentleman’s final point that I think the Committee takes this subject incredibly seriously? That is why we have heard a number of speeches today. I speak for myself, but I suspect I also speak for hon. Members on our side of the Committee, and doubtless on his side as well, when I say that all our proceedings in this House, whether in Committee or on the Floor of the House, are important. Whether it is a Committee on an SI that completes in five minutes, one that takes the full 90 minutes or, like today, one that might be completed in a slightly shorter period, these are important issues. He is right to say that and I agree, at least to that extent, with what he has said.
Let me set out again the general point of the regulations. The SI does not look at the inadmissibility provisions, so it is not introducing a new process or a new policy; it simply seeks to expand and extend the list as it stands. I emphasise that the purpose of the SI is to reduce the pressure on our asylum system from those who do not need to seek asylum or protection in this country.
I will deal with as many of the points that were raised as I can. First, I welcome the response from the shadow Minister, the hon. Member for Aberavon, and his support—I accept that it is cautious support—for the regulations. I take on board his points and will perhaps answer some of them. He was absolutely right to say that there is a wider debate about the Illegal Migration Act. Today is not the day for that, but I am sure it will be had in due course.
I reassure the shadow Minister that I have heard what he said about the guidance loud and clear. In answer to his two specific questions, no, it is not yet published; and yes, it will be. As for precisely when, as soon as section 59 of the Illegal Migration Act is in force, the guidance will be there as well.
The shadow Minister asked about the number of returns for Georgia and India. The right hon. Member for Exeter also had specific questions about numbers, which I will come to in a moment. For Georgia, the returns for the year ending September 2022 were 24, and for the year ending September 2023, they were 37. For India, for the year ending September 2022, they were 1,725, and for the year ending September 2023, they were 3,155. The point about the guidance is relevant to what the right hon. Member said about exceptions. That is part of the answer, but I will come back to his broader point in a moment.
As for the shadow Minister’s final point on retrospection, he will have to contain his impatience a little longer. He will find that out in due course. It is not strictly relevant for this SI, but it is doubtless a debate that we will return to.
I am sorry that the hon. Member for Glasgow South West does not support the regulations—so far: he might be persuaded by my closing remarks to change his mind, you never know. He still has a chance to do that. He mentioned a number of concerns and reports, which I will turn to in a few moments. I was challenged on the numbers by the hon. Gentleman and by the right hon. Member for Exeter. For the year ending September 2023, applications from India increased to more than 4,700, doubling from the year before and trebling from September 2019. There were 1,340 applications from Georgia in the year ending September 2023. We are talking about figures, not just percentages.
Members are right that there have been critical reports, but they must not be looked at in isolation. I will return to this point in a minute, but it is important to look at a broad range of sources, not just one or two reports in isolation.
I turn to the very serious points that were rightly raised by the right hon. Member for Exeter. The shadow Minister mentioned in passing the evidence that is there in the country policy and information notes. Specifically on the LGBTI community, there were updates in August 2023 in relation to India and, more recently, December 2023 in relation to Georgia. These are public documents on the gov.uk website. You, Ms Bardell, members of the Committee and anyone tuning in can look them up right now. Although there have been concerns, that is not the same as there being a general, serious risk of persecution.
Let me address directly the point about India, because the UK courts considered this issue in 2014 and, more recently, in 2016, and found that India was a safe country. There was not a general risk to gay men in the 2014 case or to lesbian women in the 2016 case. I hope that, when the right hon. Member for Exeter has the chance to look at that data, he will be reassured by the broader nature of the evidence set out as part of that assessment. It is right to say that the test is that, in general, there is no serious risk of persecution there for nationals of that country and that removals of nationals to that country would not contravene our obligations under the ECHR.
Mr Bradshaw
In their latest assessment of India, the Government might not think there is a general danger to LGBT people, but there are clearly real dangers to individual LGBT people in both India and Georgia, as is recognised by the fact that they have claimed asylum successfully in this country and the fact that other countries have recognised cases based on sexual orientation and gender as well. What can the Minister say to reassure me that those people will still be able to use his exceptional circumstances route to make an asylum claim in this country and not be automatically deported to potential violence and death?
Michael Tomlinson
The point that I am making to the right hon. Gentleman is that a broad range of evidence has been considered. This has been considered by the UK courts. The assessment has been made that in both India and Georgia there is, in general, no serious risk of persecution for nationals. That is what this Committee is considering. I have pointed him to the evidence—which he rightly and legitimately asks for—that was published on gov.uk in December and August last year in respect of India and Georgia, but that should not be taken in isolation.
Sarah Owen
I do not know whether I fell off the Minister’s list of questions to be answered, but I would be grateful for a clarification as to whether the Indian-controlled region of Jammu and Kashmir is also included on this safe list or not, and whether his and his Government’s so-called commitment to stopping violence against women and girls internationally aligns with some of the human rights records that we have heard about in both Georgia and India.
Michael Tomlinson
I hope that the hon. Lady will forgive me because she did raise that question. Yes, it does relate to India as a whole. On her question about certain specific reports, my response—she is absolutely right: I should have included her—was not just to the right hon. Member for Exeter and the shadow Minister, but to her, too. Single reports must not, and should not, be taken in isolation. Rather, there should be a whole raft of evidence, such as from case law, academia, reputable domestic and international media outlets, and national and international organisations, including human rights organisations, and from the Foreign, Commonwealth and Development Office. There should be a wide range of evidence, not just one document. One cannot just cherry-pick.
As we have heard from this debate, this is a short, narrow, but important SI. I commend the regulations to the Committee.
Question put.