Nationality and Borders Bill (Fourteenth sitting)

Debate between Bambos Charalambous and Neil Coyle

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Bambos Charalambous]

I will come on to that topic, but those powers already exist, and I do not think that further regulation of this type—forcing the tribunals committee to supply this information—is the correct way of going about this.

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

We have just heard about the new special court, the new special tribunal and the new special advocate. We have new processes, new bureaucracy and new costs. Does my hon. Friend agree that this clause represents the veneer of the Home Office’s pretence to actually give a damn about value for money any more?

[Bambos Charalambous]

My hon. Friend makes an excellent point. Throughout this Bill, some crumbs of legal aid have been provided in different circumstances, yet the Bill makes it difficult for lawyers to assist those people for whom legal aid is provided, and now they seem to be penalised for not being able to put forward the best case they can.

It is a well-established fact that access to justice includes equal protection under the law. Solicitors are fundamentally obliged to act in their clients’ best interests, which may involve adjourning a case due to a change in circumstances that they are not at liberty to disclose. That principle admits of no distinction between British nationals and foreign nationals, and those who are subject to UK law are entitled to its protection. In the context of UK immigration tribunal hearings, through which people subject to immigration control—non-citizens who cannot exercise democratic rights to shape the legislation to which they are subject—seek to vindicate their position against the state, that principle ought to warn against bearing down on them and their lawyers through an extra costs order and charging order regime that is inapplicable to British nationals in the wider courts and tribunals system.

Immigration tribunals already have the powers that they need to regulate their own procedures—as I have mentioned, they have case management powers, a costs jurisdiction and referral powers. Taking each in turn, they have extensive case management powers, as set out in rules 4 to 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Those tribunals already have a costs jurisdiction that enables them to make wasted costs orders against lawyers through the Tribunals, Courts and Enforcement Act 2007:

“(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—

(a) disallow, or

(b) (as the case may be) order the legal or other representative concerned to meet,

the whole of any wasted costs or such part of them as may be determined”.

Wasted costs are defined as

“any costs incurred by a party—

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.”

That costs jurisdiction is given further effect by the rules of procedure set out in rule 9 of the 2014 rules. An order for wasted costs may be made

“where a person has acted unreasonably in bringing, defending or conducting proceedings. The Tribunal may make an order under this rule on an application or on its own initiative.”

In practice, tribunals have the power to regulate their own procedure to avoid its abuse. In the context of applications for judicial review in the High Court, it is recognised that the Court may refer a lawyer to their professional regulatory body, such as the Solicitors Regulation Authority, where their conduct warrants it, thus potentially leading to disciplinary proceedings. A legal representative may be asked to show why the conduct should not be considered for referral to the relevant body, or why they should not be admonished. An immigration tribunal might consider making such a referral in appropriate cases. Alternatively, it may decide that the conduct might not be so serious after all and restrain itself.

In clause 62, the Government seek to give immigration tribunals additional new powers, so that they may charge a participant an amount of money if it is considered that the participant

“has acted improperly, unreasonably or negligently, and

(b) as a result, the Tribunal’s resources have been wasted”.

The fine would be a separate matter from the costs incurred by a party, and it would be payable by the other party. The charge would be paid to the tribunal. In this context, participants who may be ordered to pay a charge in respect of immigration tribunal proceedings include

“(a) any person exercising a right of audience or right to conduct the proceedings on behalf of a party to proceedings,

(b) any employee of such a person, or

(c) where the Secretary of State is a party to proceedings and has not instructed a person mentioned in paragraph (a) to act on their behalf in the proceedings, the Secretary of State.

(4) A person may be found to have acted improperly, unreasonably or negligently…by reason of having failed to act in a particular way.”

However, we are not told what that “particular way” is.

Clause 62 provides that rules may be made and may include the “scales of amounts” to be charged, and it is wrong that no framework has been provided for the scales of amounts to be charged. As a rationale for this innovation, it is said that:

“High levels of poor practice around compliance with tribunal directions, which disrupts or prevents the proper preparation of an appeal, can lead to cases being adjourned at a late stage.”

No actual evidence is adduced to support that proposition or to demonstrate that existing case management powers, wasted costs powers and powers of referral are inadequate to deal with such matters.

Clause 62 seeks to amend the cost provisions in the 2007 Act in order to put greater emphasis on making an order on grounds of unreasonable behaviour. A tribunal may make an order in respect of costs in any proceedings if it considers that a party, or its legal or other representative, has acted unreasonably in bringing, defending or conducting the proceedings. This is a power to make a costs order against a party and/or their lawyer. Unlike in considering wasted costs, the behaviour identified is solely that which is unreasonable, not behaviour that is improper or negligent. In carving out unreasonable behaviour in this way, there is a risk that the high threshold that applies in the wasted costs jurisdiction is lowered, and that such orders are made where the ordinary difficulties of running an immigration case have impeded its progress. It is unclear why additional regulatory measures are thought to be needed, indicating that the proposal is unnecessary. The tribunal procedure rules already have provisions for wasted costs, and tribunals have the power to refer cases of improper behaviour to the regulator.

Clause 63 provides that:

“Tribunal Procedure Rules must prescribe conduct that, in the absence of evidence to the contrary, is to be treated as—

(a) improper, unreasonable or negligent for the purposes of”

a charge in respect of wasted resources. Where the prescribed conduct occurs, the person in question will be treated as having acted improperly, unreasonably or negligently unless they can show evidence to the contrary, so there is a rebuttal presumption in relation to this. Here too there is a risk that conduct that does not meet the test for being unreasonable allows a wasted costs order to sneak back in. It is also not clear how wasted resources will be defined or quantified, which may lead to satellite litigation challenging the fine itself or the amount imposed, further increasing the burdens on a system already under immense pressure. The rules make provisions to the effect that if the tribunal is satisfied that the conduct has taken place, it must consider whether to impose a charge or make a costs order, though it is not compelled to do so.

According to the Home Office, in immigration tribunals,

“A range of conduct on the part of legal and other representatives…in the way proceedings are conducted or pursued”

is

“disrupting or preventing the proper preparation and progress of an appeal”,

but once again, no evidence is adduced to support that proposition, or to demonstrate that existing case management powers, wasted costs powers, and the power to refer are inadequate to deal with such matters.

Introducing further overlapping and potentially duplicative regulatory requirements may have the perverse impact of undermining the effectiveness of all relevant regimes, and increase complexity and bureaucracy. If solicitors are held personally liable for costs that arise for reasons outside their control, it could risk driving a wedge between them and their clients by creating a conflict of interest. The immigration tribunals already have all the case management cost and referral powers that they need to control their procedures. Adding new powers for immigration tribunals without establishing a basis for them in evidence is not necessary and is counterproductive. For the reasons I have outlined, we oppose clauses 62 and 63.

Nationality and Borders Bill (Fourteenth sitting)

Debate between Bambos Charalambous and Neil Coyle

Tuesday 2nd November 2021 Public Bill Committees

Bambos Charalambous

-

I will come on to that topic, but those powers already exist, and I do not think that further regulation of this type—forcing the tribunals committee to supply this information—is the correct way of going about this.

Neil Coyle (Bermondsey and Old Southwark) (Lab)

- - Excerpts

We have just heard about the new special court, the new special tribunal and the new special advocate. We have new processes, new bureaucracy and new costs. Does my hon. Friend agree that this clause represents the veneer of the Home Office’s pretence to actually give a damn about value for money any more?

Bambos Charalambous

-

My hon. Friend makes an excellent point. Throughout this Bill, some crumbs of legal aid have been provided in different circumstances, yet the Bill makes it difficult for lawyers to assist those people for whom legal aid is provided, and now they seem to be penalised for not being able to put forward the best case they can.

It is a well-established fact that access to justice includes equal protection under the law. Solicitors are fundamentally obliged to act in their clients’ best interests, which may involve adjourning a case due to a change in circumstances that they are not at liberty to disclose. That principle admits of no distinction between British nationals and foreign nationals, and those who are subject to UK law are entitled to its protection. In the context of UK immigration tribunal hearings, through which people subject to immigration control—non-citizens who cannot exercise democratic rights to shape the legislation to which they are subject—seek to vindicate their position against the state, that principle ought to warn against bearing down on them and their lawyers through an extra costs order and charging order regime that is inapplicable to British nationals in the wider courts and tribunals system.

Immigration tribunals already have the powers that they need to regulate their own procedures—as I have mentioned, they have case management powers, a costs jurisdiction and referral powers. Taking each in turn, they have extensive case management powers, as set out in rules 4 to 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Those tribunals already have a costs jurisdiction that enables them to make wasted costs orders against lawyers through the Tribunals, Courts and Enforcement Act 2007:

“(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—

(a) disallow, or

(b) (as the case may be) order the legal or other representative concerned to meet,

the whole of any wasted costs or such part of them as may be determined”.

Wasted costs are defined as

“any costs incurred by a party—

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.”

That costs jurisdiction is given further effect by the rules of procedure set out in rule 9 of the 2014 rules. An order for wasted costs may be made

“where a person has acted unreasonably in bringing, defending or conducting proceedings. The Tribunal may make an order under this rule on an application or on its own initiative.”

In practice, tribunals have the power to regulate their own procedure to avoid its abuse. In the context of applications for judicial review in the High Court, it is recognised that the Court may refer a lawyer to their professional regulatory body, such as the Solicitors Regulation Authority, where their conduct warrants it, thus potentially leading to disciplinary proceedings. A legal representative may be asked to show why the conduct should not be considered for referral to the relevant body, or why they should not be admonished. An immigration tribunal might consider making such a referral in appropriate cases. Alternatively, it may decide that the conduct might not be so serious after all and restrain itself.

In clause 62, the Government seek to give immigration tribunals additional new powers, so that they may charge a participant an amount of money if it is considered that the participant

“has acted improperly, unreasonably or negligently, and

(b) as a result, the Tribunal’s resources have been wasted”.

The fine would be a separate matter from the costs incurred by a party, and it would be payable by the other party. The charge would be paid to the tribunal. In this context, participants who may be ordered to pay a charge in respect of immigration tribunal proceedings include

“(a) any person exercising a right of audience or right to conduct the proceedings on behalf of a party to proceedings,

(b) any employee of such a person, or

(c) where the Secretary of State is a party to proceedings and has not instructed a person mentioned in paragraph (a) to act on their behalf in the proceedings, the Secretary of State.

(4) A person may be found to have acted improperly, unreasonably or negligently…by reason of having failed to act in a particular way.”

However, we are not told what that “particular way” is.

Clause 62 provides that rules may be made and may include the “scales of amounts” to be charged, and it is wrong that no framework has been provided for the scales of amounts to be charged. As a rationale for this innovation, it is said that:

“High levels of poor practice around compliance with tribunal directions, which disrupts or prevents the proper preparation of an appeal, can lead to cases being adjourned at a late stage.”

No actual evidence is adduced to support that proposition or to demonstrate that existing case management powers, wasted costs powers and powers of referral are inadequate to deal with such matters.

Clause 62 seeks to amend the cost provisions in the 2007 Act in order to put greater emphasis on making an order on grounds of unreasonable behaviour. A tribunal may make an order in respect of costs in any proceedings if it considers that a party, or its legal or other representative, has acted unreasonably in bringing, defending or conducting the proceedings. This is a power to make a costs order against a party and/or their lawyer. Unlike in considering wasted costs, the behaviour identified is solely that which is unreasonable, not behaviour that is improper or negligent. In carving out unreasonable behaviour in this way, there is a risk that the high threshold that applies in the wasted costs jurisdiction is lowered, and that such orders are made where the ordinary difficulties of running an immigration case have impeded its progress. It is unclear why additional regulatory measures are thought to be needed, indicating that the proposal is unnecessary. The tribunal procedure rules already have provisions for wasted costs, and tribunals have the power to refer cases of improper behaviour to the regulator.

Clause 63 provides that:

“Tribunal Procedure Rules must prescribe conduct that, in the absence of evidence to the contrary, is to be treated as—

(a) improper, unreasonable or negligent for the purposes of”

a charge in respect of wasted resources. Where the prescribed conduct occurs, the person in question will be treated as having acted improperly, unreasonably or negligently unless they can show evidence to the contrary, so there is a rebuttal presumption in relation to this. Here too there is a risk that conduct that does not meet the test for being unreasonable allows a wasted costs order to sneak back in. It is also not clear how wasted resources will be defined or quantified, which may lead to satellite litigation challenging the fine itself or the amount imposed, further increasing the burdens on a system already under immense pressure. The rules make provisions to the effect that if the tribunal is satisfied that the conduct has taken place, it must consider whether to impose a charge or make a costs order, though it is not compelled to do so.

According to the Home Office, in immigration tribunals,

“A range of conduct on the part of legal and other representatives…in the way proceedings are conducted or pursued”

is

“disrupting or preventing the proper preparation and progress of an appeal”,

but once again, no evidence is adduced to support that proposition, or to demonstrate that existing case management powers, wasted costs powers, and the power to refer are inadequate to deal with such matters.

Introducing further overlapping and potentially duplicative regulatory requirements may have the perverse impact of undermining the effectiveness of all relevant regimes, and increase complexity and bureaucracy. If solicitors are held personally liable for costs that arise for reasons outside their control, it could risk driving a wedge between them and their clients by creating a conflict of interest. The immigration tribunals already have all the case management cost and referral powers that they need to control their procedures. Adding new powers for immigration tribunals without establishing a basis for them in evidence is not necessary and is counterproductive. For the reasons I have outlined, we oppose clauses 62 and 63.

Nationality and Borders Bill (Eleventh sitting)

Debate between Bambos Charalambous and Neil Coyle

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is very interesting to follow the hon. Member for Stoke-on-Trent North, but I will not rise to the bait.

Clause 37 is one of the most controversial new provisions in part 3 of the Bill. It expands the existing offence of illegal entry so that it encompasses arrival in the UK without a valid entry clearance. It also increases the maximum penalty for those entering without leave or arriving without a valid entry clearance from six months to four years’ imprisonment. I have a question for the Minister. On Tuesday we debated clause 35, which reduced the penalty for a particularly serious offence from two years’ imprisonment to one year. Is it the Government’s intention to make entry a particularly serious offence for the purposes of the Bill? That is what the clause could do.

In effect, the Government’s proposals criminalise the act of seeking asylum in the UK. The Opposition wholeheartedly oppose the measures and urge the Government to consider the following facts. First, clause 37 breaches article 31 of the refugee convention, which prohibits penalisation for irregular entry or stay when people are seeking asylum. The new offence of unlawful arrival is designed to—and will in practice—penalise refugees based on their mode of travel. That goes against everything that the convention stands for.

Article 31 of the refugee convention says that states

“shall not impose penalties, on account of their illegal entry or presence, on refugees…where their life or freedom was threatened…provided they present themselves without delay…and show good cause for their illegal entry or presence.”

Clause 37 clearly violates the non-penalisation clause in the convention and is therefore in breach of the UK’s obligations under international law.

When taken in combination with clause 12, which excludes UK territorial seas from being considered a place of claim, clause 37 has significant implications for access to protection and the risk of refoulement. Under the proposed changes, those who arrive irregularly, including through a safe third country, could be prosecuted and imprisoned for between one and four years. That is because it is not possible to apply for entry clearance for the purpose of claiming asylum in the UK, and yet an asylum seeker must be physically in the UK to make a claim. Bearing that in mind, 90% of those granted asylum in the United Kingdom are from countries whose nationals must hold entry clearance to enter the UK.

[Neil Coyle]

This is more a point of order than an intervention, Sir Roger. I have been contacted with a correction to the record: Islington has actually taken refugees, contrary to what the hon. Member for Stoke-on-Trent North said. Does my hon. Friend congratulate Islington on its record in taking refugees and asylum seekers, contrary to the inaccurate—I was going to say “deceitful”, but I am not sure whether that is parliamentary language—and I am sure accidentally misleading comments from the hon. Gentleman?

[Bambos Charalambous]

I congratulate all local authorities that take asylum seekers. All local authorities should take their fair share—not just in Stoke-on-Trent or Islington, but those across the country.

In practice, someone with a well-founded fear of persecution arriving in the UK intending to claim asylum will be committing a criminal offence if clause 37 is implemented. Even if they have a visa, they will be committing an offence because their intention to claim asylum will be contrary to the intention for which the entry clearance or visa was issued. We have heard the example of students: if a student entered on a student visa and claimed asylum in the UK, they would be in breach of that visa. The clause will impact tens of thousands of people, leading to people with legitimate cases serving time in prison for these new offences, followed by continued immigration detention under immigration powers. In this context, the Government are proposing to criminalise asylum-seekers based on their journey—which, in all likelihood, was the only viable route available to them.

Secondly, the proposals are unworkable. While criminalising those we should be seeking to protect, the Bill also fails to introduce safe and legal routes to claim asylum. Clause 37 comes amid a glaring lack of lawful routes for claiming asylum in the UK. Although we welcome things like the resettlement programmes, they are not a solution for those claiming asylum because they are so limited. They cover those who are already recognised as having the protection they need.

Nationality and Borders Bill (Tenth sitting)

Debate between Bambos Charalambous and Neil Coyle

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[Bambos Charalambous]

Clause 22 provides for up to—but no more than—seven hours of legal aid to be available to those served with a priority removal notice, enabling them to receive advice on their immigration status and removal. This provision is necessary due to the new priority removal notices regime introduced in part 2 of the Bill, and while we welcome the introduction of the legal aid requirement in the Bill, it does not go far enough. Seven hours is not enough time for a legal representative to take instructions from, advise and represent individuals who are often among the most vulnerable people in society.

The Government’s one-stop approach to asylum claims means that there is a significant risk of claimants being unable to obtain legal advice properly despite the provisions set out in the clause, because they have not been given enough time to develop a relationship of trust with their legal advisers and the legal authorities. We know about the difficulties many asylum seekers—for example, those who are victims of torture, sexual gender-based violence, or trafficking—face in disclosing evidence, and the time constraints imposed by clause 22 will likely negatively impact people who have difficulty disclosing information related to their claim due to an initial lack of trust in the advisers or authorities.

More widely, organisations in the sector have rightly made the connection between the Government’s offer of legal aid to the recipients of PRNs in this clause and the broader cuts to legal aid in the immigration sector that have become the hallmark of the Government’s time in office. According to Bail for Immigration Detainees,

“This meagre provision comes after the gradual decimation of the legal aid immigration sector since the legal aid cuts in 2013”,

and the clause

“will not be a sufficient safeguard to ensure access to justice”.

It is, of course, essential that people who need legal advice can access that advice in practice, and support must be provided for those who need help navigating the system. In many instances, asylum seekers are highly vulnerable, and may experience difficulties when it comes to the legal intricacies of the asylum process, such as studying legal determinations or preparing submissions for appeals. It is equally clear that the wider proposals in part 2 of the Bill will not achieve the Home Office’s aim of creating an immigration system that is fairer and more efficient. As we know from reading the Bill, clause 22 comes alongside a set of sweeping legislative changes that, for example, limit access to appeals, speed up the removal process and penalise late submissions of relevant evidence. These measures can hardly be described as fair, and they fail to make the system more efficient.

We must take the proposals about legal aid in clause 22 in conjunction with other clauses in part 2 that seek to fast-track asylum claims and appeals, and make conditions harder for asylum seekers and refugees here in the UK. When implemented together and in strict draconian fashion, the Bill’s provisions therefore inhibit access to justice, risk inherent unfairness, are contrary to the common law and violate procedural requirements. Most importantly, they may give rise to a significant risk of refoulement, which would violate the UK’s internal obligations.

While we welcome the introduction of legal aid, we do not believe that the clause goes far enough: we believe that much more should be done to provide more legal aid, particularly in relation to the immigration sector.

[Neil Coyle]

Members will be pleased to know that I will be brief, not least because my hon. Friend the Member for Enfield, Southgate has been so comprehensive, but also because I spoke on this issue a lot this morning. However, I would like to ask some specific questions—three, I think.

If children are covered by clause 22, perhaps the Minister will take the opportunity—despite failing to do so on the two previous chances I have provided—to outline what the equality impact assessment means when it says,

“We will also provide increased access to legal aid.”

As I have explained, the Ministry of Justice seems to be unaware of this extension, and there are previous answers I have yet to exploit. However, it would be useful to know—indeed, I believe we are entitled to know—what cost to Government this will have. What is the cost of this extension to the taxpayer? Is it relevant to clause 22, and how many children or people will benefit from such an extension as we go forward? I hope that the Minister will be able to answer that or, at least, send another letter. I am enjoying our correspondence so far.

My second question is about the organisations that might be providing this advice. Is it the Government’s intention, under clause 22, to have a defined list of organisations that will be willing to provide it? As I mentioned, at an asylum hostel in my constituency yesterday, there appeared to be a Home Office list of legal aid providers that is given to asylum seekers in an induction pack. That should be made public, so that we can explore whether those are the best organisations and whether the list could be expanded. I hope the Minister will tell us whether that list will be published, and whether clause 22 will involve a defined set of organisations.

Thirdly, if the Government are serious about genuinely tackling the delays and the pace of these cases, perhaps they would consider expanding legal aid to all cases to make it a genuinely fast, fair and effective system. That is sadly not what we have before us today.

--- Later in debate ---

[Bambos Charalambous]

I will speak to amendments 38 and 131, and will seek to press amendment 131.

We do not believe that it is fair that some evidence is deemed to have minimal weight when there are practical and psychological reasons that it cannot be disclosed by a particular date. We have grave concerns about the clause, in particular because of the awful impact it could have on vulnerable women and other groups such as the LGBT+ community. That is why we have tabled the amendments. We want a cast-iron and legal guarantee that groups who have good reasons for late evidence are protected under the law. Otherwise, there is a danger that the persecution they have fled will be compounded by the inappropriate disregard of their late evidence.

The clause instructs decision makers to give regard to the principle that minimal weight be given to later evidence unless there are good reasons, which are undefined in the Bill and are therefore left entirely to the discretion of the Home Secretary. There are many good reasons why, for instance, women who have fled sexual and gender-based violence cannot share relevant experiences right away. This is even acknowledged in Home Office guidance that refers to

“guilt, shame, and concerns about family ‘honour’, or fear of family members”.

The same guidance acknowledges that women who have been trafficked to the UK may be facing threats from their traffickers at the time of their interview, such that they are unable to speak openly. Some women who have fled persecution because of their sexual orientation are not able to disclose their sexuality during the time of their initial claim. They may still be coming to terms with it themselves—a process that can take years. Other women or people who have fled sexual violence or torture may be suffering from post-traumatic stress disorder, and may experience disassociation from their experiences, which is a well-known psychological phenomenon in the aftermath of sexual violence.

Women therefore already face significant barriers to the full investigation and recognition of their protection claims. The clauses on late evidence will worsen those obstacles if they are not given additional protections. As well as causing harm to women in desperate need of safety, if unamended the clause will lead to greater unfairness in the system, an increasing number of incorrect decisions and ultimately, therefore, an increase in the backlog of cases.

With reference to women and late evidence, the Bill taken as a whole goes directly against Home Office policy, which states that late disclosure should not automatically prejudice a woman’s credibility. The backlog of asylum cases urgently needs addressing, but restricting the ability of vulnerable women or other vulnerable people to bring evidence is neither a fair nor an effective solution. That is why we believe the amendment that provides the specific categories as set out is so needed.

Introducing a rigid deadline for providing evidence and penalising those who provide late evidence also risks negatively impacting trans people specifically from applying for asylum. Trans people already face difficulty in “proving” their gender identity, due to the innateness of someone’s gender identity together with social expectations and stereotypes ostracising a population of trans people from protection. We see a similar difficulty in respect of other LGBT+ identities in so far as it is by nature next to impossible to prove something so intimate, without its becoming disproportionately invasive. Therefore we believe that these groups, too, are adversely impacted by the provisions around late evidence.

For people under 18, there are obvious reasons why their evidence may be late. It seems ridiculous that without amendment, the clause seriously suggests that we punish children by giving their evidence less weight if they cannot meet an arbitrary date. How on earth is it appropriate that children who may have escaped the worst imaginable situations, and who are likely to be suffering from trauma, are then further traumatised with arbitrary conditions placed on evidence and its weight?

Clause 23 creates the principle that a decision maker must give minimal weight to evidence raised late by a claimant, unless there are good reasons why that evidence was provided late. We are deeply concerned about the clause and the impact of the Bill’s measures around delayed disclosure in part 2. There are many reasons why it may not be possible to present all information in support of an asylum claim at the earliest opportunity. Women who have been trafficked to the UK may be facing threats from their traffickers at the time of interview. Others who have fled persecution because of their sexual orientation may be unable to disclose their sexuality during the time of their initial claim. They may still be coming to terms with themselves—a process that can take years.

If implemented, the Government’s proposals would adversely impact those vulnerable people. We propose that the Government introduce a cast-iron legal guarantee that groups that have a good reason for late evidence are protected under the law. Failing to do so risks penalising the most vulnerable people and those who have been failed by the system.

[Neil Coyle]

Clause 23 is deeply pernicious and comes at a time that suggests that the Government have rushed this legislation. Last Tuesday, there was a meeting between the Prime Minister’s special envoy for freedom of religion or belief and the right hon. Member for Gainsborough (Sir Edward Leigh). That meeting was to discuss the case of Maira Shahbaz, a 15-year-old Christian who has fled Pakistan having been kidnapped, forced to convert religion and forced to marry one of the men who kidnapped her. She managed to escape and is seeking asylum, but she was held for a significant time, so she would not necessarily meet the original timeframe and she might fall foul of the measures in this legislation.

For the Prime Minister’s special envoy to be willing to meet and discuss that case suggests that there should be a process by which someone in those circumstances is able to avoid the provisions of this legislation. I am deeply concerned that one bit of the Government are off having discussions elsewhere, while the Home Office is bringing forward plans that could prevent someone in those exact circumstances from benefiting from any exemptions they might have discussed in that meeting last Tuesday. It suggests once again that this is more about culture wars and headlines than it is about the practical reality of the system that exists or building towards a system that is fairer, more effective and faster.

I wanted to quickly raise issues around sexuality. I am deeply grateful to Rainbow Migration, who provided some examples and evidence for the Committee to all members. It said that clause 23 specifically

“would be acutely detrimental to LGBT+ people because of the difficulties in gathering and providing evidence that helps confirm their sexual orientation or gender identity. Many LGBT+ people may have spent a long time trying to hide their sexual orientation or gender identity from other people…in the UK”,

never mind in regimes where it is specifically illegal or unlawful, and could be punished.

Earlier, I asked the Minister what a gay man would need to provide to meet the initial evidence threshold, to avoid PRNs and to avoid being punished by clause 23. If someone has been persecuted on the grounds of their sexuality—persecuted for having the temerity to fall in love with someone of the same gender—in their country of birth, they may inevitably worry about revealing that identity, having managed to escape such an horrific regime.

I ask the Minister again to explore some of the practical realities of those circumstances before penalising someone specifically on the grounds of sexuality, because I think that it will fall foul of existing UK law, if not other international obligations. I am very mindful that I have a live case of a gay man trying to flee Lebanon where he is being forced, as the only son in a family, to marry against his wishes. He is seeking to escape Lebanon in order to not be forced to subjugate his sexuality in the interests of his family’s wishes.

I hope that the Minister can give more information on what the burden of proof would be, because I do not understand. Producing a boyfriend or girlfriend, or a love letter from someone still living in a regime where it is impossible to do that, will not necessarily be possible; yet the Government are legislating to penalise people in exactly those circumstances. Members across the House are deeply worried about the implications of such a measure.

On 3 February 2020, the Home Office was asked in question 11509 when it

“plans to update the House on the progress of the review into the way asylum claims based on religious grounds and LGBT+ grounds are assessed.”

The response was:

“The review into the way asylum claims on the basis of religious and LGBT+ grounds are assessed has been completed.”

That review has never been published. The Government refused to publish it in February last year, and they have refused to do so in answer to many subsequent questions. It is troubling that, while the Government withhold information on how existing processes have not necessarily dealt with faith and sexuality-based cases very well, we now have measures before us that deliberately penalise people who will find it harder to prove discrimination or persecution on faith and sexuality grounds. I hope that the Minister will agree that the review should be made public during the Bill’s passage, and certainly before anyone is penalised and has their case impeded on those grounds.

We talked about PTSD. Under clause 23 someone could face having their case undermined before their PTSD symptoms were, importantly, fully diagnosed. I will not repeat what I said this morning, but it would be ludicrous to legislate that someone be forced to have that diagnosis when they cannot access healthcare and not all symptoms will necessarily be evident.

Finally, the Anti Trafficking and Labour Exploitation Unit has provided a case of a Nigerian woman whom it has just listed as “X”. Promised a career in the UK as a hairdresser, she was forced into sex work, when in the UK, for nearly a year before she managed to escape. She was unable to meet the time limit, could be subject to a PRN and could be subject to clause 23 if she finally makes a case. The Minister had said that trafficking victims would not be subject to those provisions; but the Home Office initially declared that specific woman, X, not to be a victim of trafficking. By the time the Home Office had admitted its mistake, she could have gone through that process. She could have had the PRN imposed before the Home Office was willing to accept that, and before she had the legal advice to support her to make the case that proved she was the victim of human trafficking. I see no safeguards before us today that would prevent her from being subject to clause 23, and having less weight applied to her case or being removed from the country before she could make that case. The Government need to come forward with more safeguards before they progress these measures any further.

Nationality and Borders Bill (Eighth sitting)

Debate between Bambos Charalambous and Neil Coyle

Committee stage
Thursday 21st October 2021 Public Bill Committees

[Bambos Charalambous]

The hon. Lady makes an excellent point. It is not just the UNHCR. It is the custodian of the UN refugee convention, so we should listen to what it says, but many other commentators across the board have commented on how this clause and the Bill breach international law, and we need to heed what they say. I have yet to see the Government’s legal advice that says that they do comply with international law, but hopefully that will be available.

I will set out for the Committee the reasons why the distinction between groups of refugees is so unfair and inhumane. I will start by addressing the issue of distinguishing between refugees on the basis of how they arrived in the UK. By penalising refugees for how they were able to get to the UK, the Bill builds walls against people in need of protection and slams the door shut on many seeking a safe haven. Most refugees have absolutely no choice about how they travel, as people on all sides of the political divide understand.

Do the Government seriously intend to penalise refugees who may have found irregular routes out of Afghanistan? In fact, Government Ministers have been on national news programmes in recent weeks, urging such a course of action for those wishing to flee Afghanistan. Are the Government saying that people are less deserving of our support if they have had to take dangerous journeys? Is an interpreter from Afghanistan who took a dangerous journey to our shores less deserving than a refugee who was lucky enough to make it here on one of the flights out of the country?

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

Does my hon. Friend share my concern that those who fought alongside or were trained by UK forces, or who guarded our diplomatic personnel in Kabul, were betrayed in being left behind and are being doubly betrayed by the provisions in the Bill?

[Bambos Charalambous]

My hon. Friend makes an excellent point, and he is absolutely right. People linked to my constituents are Chevening scholars who were told to go to Kabul airport. They got no assistance and are still stuck in Afghanistan, with no way to get out. It is deeply concerning, and they feel let down.

It clearly makes no sense to seek to penalise and, in some cases, even criminalise those who have been forced to take dangerous journeys. In our view, it is an insidious way of dehumanising a group of people who deserve our support—it is victim blaming of the most crass and immoral type. Penalising people for how they have arrived in the UK has particular implications for already vulnerable groups of refugees, such as women and those from LGBT communities. Women are often compelled to take irregular routes to reach safety, as we can see only too clearly in Afghanistan. There are simply no safe and legal routes that exist. Even the Government’s much-vaunted resettlement scheme relies on women escaping from a regime in which they are forbidden to walk around freely in the streets.

In many cases, even if the Government created new safe routes from dangerous parts of the world, they would simply not be available to all those in need of protection. Many women would not be able to safely reach an embassy or cross a border to access a resettlement programme, if those routes did indeed exist. Some women would be able to disclose their need for protection only once they reached a country that they considered safe. Under the proposed changes, however, women who arrive irregularly, including through a safe third country, would be penalised. Furthermore, a woman could be prosecuted, criminalised and imprisoned for one to four years. All these obstacles apply to those from LGBT communities as well. We simply ask the Government: how on earth does this draconian and inhumane treatment of vulnerable groups sit alongside British values of fairness?

Another huge flaw in this part of clause 10 is that many of the journeys facilitated by people smugglers are undoubtedly dangerous. Much attention has been directed by the Home Secretary and certain sectors of the press to the minority of people who enter the UK’s asylum system via boat crossings of the channel. However, that is far from the only dangerous journey that is made to enter the UK; the Home Secretary emphasised that when referring to the tragedy of the 39 Vietnamese people who lost their lives in a container found by Essex police in 2019.

Again, as the Home Secretary identified in her speech, the dangers are not limited to the journeys but are also a feature of the violent and exploitative treatment by people smugglers, traffickers and other abusers. Moreover, many of the people who make dangerous journeys to reach the UK from the continent will already have made dangerous journeys by land and sea, including across the Mediterranean.

The fallacy of the Government’s position in penalising people for making irregular routes to the UK is the same as the fallacy inherent in the stated objective of breaking the business model of people smugglers. Unless the Government can provide safe routes—they plainly have not done so in the case of Afghanistan and elsewhere—penalising people for making unsafe journeys is simply cruel. By not providing safe routes, the Government are also fuelling the business model of people smugglers and then penalising the victims they have a responsibility for creating. Do they not understand or are they simply willing to turn a blind eye? In America in the 1920s, prohibition drove the sale of alcohol underground, and a similar thing will happen here: more people smuggling will take place rather than less. The Government are fuelling the people smuggling business model.

It appears that Ministers and those advising them do not appreciate the compulsion to make these journeys, which is strange because they clearly acknowledge that the journeys are very dangerous and sometimes fatal. They are often highly traumatic, physically and mentally, and generally involve at some point extremely violent and cruelly exploitative people.

To give one example, it has long been documented that there is a practice among the women and girls seeking to cross the Mediterranean from Libya of taking contraceptive medication prior to the journey. That is because those women and girls anticipate that they will be raped. Do Ministers have any idea of the desperation involved in making the decision to take such medication? It is clear that although the women and girls fully understand the danger involved in the journeys, they are still compelled to make them, because the alternative of not doing so is even worse.

If people truly had a reason to believe that they were or would be safe where they are, they would not make the journeys. Simply making the journey more dangerous or the asylum system more unwelcoming will not change that. A salutary lesson ought to be taken from the example in 2014 when pressure from the EU, then including the UK, led to Italy’s decision to abandon its organised search and rescue operations in the Mediterranean. The immediate impact over several months before the Government relented was a huge increase in the number of people dead. The need for the journeys had not changed, so the journeys continued. The dangers of the journeys were greatly increased, so hundreds more people lost their lives. Discriminating against refugees obliged to arrive spontaneously will not prevent desperate people from making dangerous journeys. There is strong evidence that a policy focused on closing borders forces migrants and refugees to take more dangerous journeys and leaves them more vulnerable to traffickers.

That brings me to section 2(a) of the clause, which states that group 1 refugees must have

“come to the United Kingdom directly from a country or territory where their life or freedom was threatened”.

In other words, the Government are setting an expectation that to be a refugee who is supposedly deserving of the support usually afforded, the UK must be the first safe country in which they have sought asylum. I cannot state strongly enough how requiring refugees to claim asylum in the first safe country they reach would undermine the global, humanitarian and co-operative principles on which the refugee system is founded. The UK played a key role in developing those principles 70 years ago when it helped draft the refugee convention, and, together with the other members of the United Nations General Assembly, it recently reaffirmed them in the global compact on refugees.

The proposed clause designed around the maxim that asylum seekers should claim asylum in the first safe country they reach and can be penalised if they do not, including by being designated as group 2 refugees, will impact not only refugees but fellow host states and the ability to seek global, co-operative solutions to global challenges.

The expectation that refugees should claim asylum in the first safe country they reach is also unworkable in practice. The Government are aware that there are 34.4 million refugees and asylum seekers worldwide, and the vast majority—73%—are already hosted in countries neighbouring their countries of origin. Some 86% are hosted in developing countries. Low-income countries already host 86% of the world’s refugees compared with the UK, which hosts just 0.5%. To insist that refugees claim asylum in the first safe country they reach would impose an even more disproportionate responsibility on the first safe countries both in Europe and further afield, and threaten the capacity and willingness of those countries to provide protection and long-term solutions. In turn, that would overwhelm the countries’ hosting capacity and encourage onward movement.

It is also worth noting that even within Europe most of the countries that refugees pass through on their way to the UK already host significantly more refugees and asylum seekers per population than the UK does. According to the Home Office’s own statistics, the UK is 17th in terms of the numbers it takes, measured per head of population.

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[Bambos Charalambous]

France takes three times more asylum seekers than the UK, as does Germany. As I mentioned, the UK is 17th by population in the number of asylum seekers it takes. The right hon. Gentleman is being slightly disingenuous. There are many other countries—Lebanon, for instance, has taken 1.9 million refugees from Syria. Jordan has taken 1 million over the last 10 years. Turkey has taken 4.3 million refugees. We are talking about a tiny fraction of those numbers. I think we need to stand up and take our share of the refugees. These countries will collapse if they are forced to take refugees because they neighbour countries where there is conflict.

[Neil Coyle]

Does my hon. Friend agree that there is a bit of a dichotomy here? People talk up the tradition and reputation of the UK at the same time as presenting legislation that undermines that reputation. Does my hon. Friend share my concern that global Britain seems less compassionate, less generous and less Christian than the Great Britain that proudly helped draft the refugee convention?

[Bambos Charalambous]

My hon. Friend makes an excellent point. The refugee convention was enshrined in UK law in 1954 when Winston Churchill was the Prime Minister. It was one of his beliefs, and that of the Government of the day, that it was a very important part of the UK’s global position in the world. We should not do anything that would trash our reputation, because we will all be diminished by that.

The clause makes no practical or moral sense at all. Global provision for refugees could not function if all refugees claimed asylum in the first safe country they came to. As Members across the political divide know, most refugees are hosted in developing countries and the UK receives fewer asylum applications than most other European countries. Furthermore, it is an important aim of the refugee convention that there should be no penalisation of refugees who arrive irregularly. It is very important to make that point and to repeat the point that the refugee convention does not state that refugees must claim asylum in the first safe country they come to; it permits refugees to cross borders irregularly to claim asylum.

Let me give the Committee an example to illustrate why this part of the refugee convention is so vital. This is a real-life scenario that faced a refugee to the UK, who, in this situation, I am going to call Aaron.

Aaron is a refugee who travelled to the UK via other countries. He was a young teenager when he had to leave Eritrea without his family. His father had been conscripted into the country’s brutal military service and came home to see his family. When he left again, he told his family that he was going back to his base, but he never showed up there. The family did not know anything about his whereabouts. The military came to Aaron’s house looking for his father and told Aaron’s mother that they would take her children, including Aaron, if they could not find his father. Aaron had no choice but to leave. He says:

“People really suffer. They don’t want to leave their country but their country forces them because military service in Eritrea is the worst thing. You have to serve the military forever. There is no life, there is nothing.”

He left Eritrea and spent two years looking for safety before arriving in the UK. He travelled via Sudan and Libya, both of which were very dangerous. He then went to Italy, where he felt unsafe sleeping outside under bridges, and to France, where he ended up in the Calais jungle. He explained:

“They didn’t treat us like human beings”,

Aaron came to the UK in the back of a lorry. “I wasn’t expecting anything,” he remembers,

“I just escaped to keep my life, to be safe. That’s the most important thing.”

He was initially refused asylum and had to submit a fresh claim. He was in the UK asylum system for seven years before finally being recognised as a refuge—and as having been one all along. He now plans to study IT.

Under international law, the primary responsibility for identifying refugees and affording international protection rests with the state in which an asylum seeker arrives and seeks that protection. The idea of seeking asylum in the first safe country is unfair, unworkable and illegal in international law.

That brings me on to the suggested strictures on group 2 refugees in clause 10(6), which sets out a non-exhaustive list of ways in which refugees who arrive irregularly may be treated differently, with reduced leave to remain, more limited refugee family reunion rights, and limited access to welfare benefits. The explanatory notes for the Bill state:

“The purpose of this is to discourage asylum seekers from travelling to the UK other than via safe and legal routes. It aims to influence the choices that migrants may make when leaving their countries of origin—encouraging individuals to seek asylum in the first safe country they reach after fleeing persecution, avoiding dangerous journeys across Europe.”

However, the Government have provided no evidence to show that the stated aim will result from the policy.

Evidence from many refugee organisations suggests that refugees seek asylum in the UK for a range of reasons, such as proficiency in English, family links or a common heritage based on past colonial histories. Many sector organisations have told us that refugees do not cite the level of leave granted or other elements of the asylum system as decisive factors. In fact, it seems likely that those are not even details refugees would tend to be aware of.

However, the proposed strictures will certainly result in a refugee population who are less secure, because they have a shorter amount of leave and are less able to integrate because they have reduced access to refugee family reunion. They will punish those who have been recognised, through the legal system, as needing international protection—girls fleeing the Taliban in Afghanistan, Christian converts fleeing theocracy in Iran or Uyghurs fleeing genocide in China.

These strictures are likely to retraumatise people who have already been subjected to horrific abuse. To take one example in more detail, clause 10(5) gives the Home Secretary broad discretion to set the length of any limited period of leave given to group 2 refugees, such that they may be indefinitely liable for removal. Both the new plan for immigration and the Bill’s explanatory notes confirm that group 2 refugees who have a well-founded fear of persecution will be given only temporary protection status—no more than 30 months, according to the new plan—after which they will be reassessed for return or removal. The extreme uncertainty that this will cause, along with the inability for people to move forward with their lives, is tantamount to inflicting mental cruelty.

The explanatory notes also state that 62% of asylum claims in the UK up until September 2019 were from people who entered irregularly. This means the policy intention is to impose strictures on the rights and entitlements of the majority of refugees coming to the UK, even though we take fewer than comparable countries, as has been noted.

Furthermore, these strictures would deny recognised refugees rights guaranteed to them under the refugee convention and international law. They would also create a series of significant civil and criminal penalties that would target the majority of refugees who will seek asylum in the UK. Those penalties would target not just those who had entered the UK irregularly or who had made dangerous journeys, but all those who have not come directly to the UK—regularly or irregularly—from a country or territory where their life or freedom was threatened; those who have delayed claiming asylum or overstayed; and even those who arrive in the UK without entry clearance and who claim asylum immediately.

In short, these strictures can only be seen as cruel and as a way to obstruct integration. Barriers to resettlement in the UK would force refugees to live under the perpetual threat of expulsion, denied a chance to rebuild their lives. Subjecting refugees to no recourse to public funds conditions would leave refugees vulnerable to destitution and exploitation. Meanwhile, reducing family reunion rights interferes with the right to family life, and is cruel. It constitutes a reduction of safe, managed routes for people seeking sanctuary.

I will now look in more depth at the practical consequences of the strictures of group 2 status that have just been outlined. It is worth stating that this clause envisions that group 2 status will be imposed on recognised refugees—people who are at risk of persecution, who have been forcibly separated from their homes, families and livelihoods, and who in many cases have suffered trauma. The mental health challenges they face are well documented, yet this clause will stigmatise them as unworthy and unwelcome, and if the intentions expressed in the explanatory notes were carried out, it would maintain them in a precarious status for 10 years, deny them access to public funds unless they were destitute, and restrict their access to family reunion. Multiple studies have shown that that precarious status itself is a barrier to integration and employment, yet despite these challenges, the Bill would specifically empower the Secretary of State to attach a no recourse to public funds condition to the grant of leave to group 2 refugees, and according to the explanatory notes their status

“may only allow recourse to public funds in cases of destitution.”

The adverse consequences of no recourse to public funds conditions will fall not only on the refugees themselves, but on their families, including children who travel with them, who are able to join them later or who are born in the UK. Those consequences have been documented in numerous studies, as well as in the context of litigation. They include difficulty accessing shelters for victims of domestic violence; denial of free school meals where those are linked to the parents’ benefit entitlement; and de facto exclusion from the job market for single parents, largely women, who have limited access to Government-subsidised childcare, as well as significant risks of food poverty, severe debt, substandard accommodation and homelessness. These consequences in turn hinder integration and increase the financial cost to local authorities, which in many cases have statutory obligations towards children and adults. The Home Office’s own indicators of integration framework identifies secured immigration status as a key outcome indicator for stability, which is

“necessary for sustainable engagement with employment or education and other services.”

It is also worth noting that among the public relief measures defined as public funds in this context are those specifically intended to support children, such as child benefit, and the particularly vulnerable, such as carer’s allowance and personal independence payments. Moreover, children born to group 2 refugees in the UK normally have no right to British nationality for 10 years, or until their parents are granted settlement; given that refugees may put their status and perhaps their security at risk were they to approach the embassy of their country of origin to register their children, many would have no effective nationality at all. With the possibility of applying for family reunion foreclosed, more women and children are likely to attempt dangerous journeys, either at the same time as the men who might previously have sponsored them under current laws, or joining them afterwards. That risk has been recognised by the Council of Europe, among others, and has been borne out in Australia, where the abolition of family reunion rights for holders of temporary protection visas was followed by a threefold increase in the percentage of refugees trying to reach Australia who are women and children.

I will now turn in more detail to how clause 10 contravenes the refugee convention. As a party to the convention, the UK has a binding legal obligation towards all refugees under its jurisdiction that must be reflected in domestic law, regardless of the refugee’s mode of travel or the timing of their asylum claim. The obligations in the convention are set out in articles 3 to 34. They include, but are not limited to, the following obligations that are directly undermined by clause 10: providing refugees who are lawfully staying in the country with public relief on the same terms as nationals, which is article 23, and facilitating all refugees’ integration and naturalisation, which is article 34.

The Bill is inconsistent with those obligations in at least three significant ways. First, it targets group 2 refugees, not only for unlawful entry or presence but for their perceived failure to claim asylum elsewhere or to claim asylum promptly, even if they entered and are present in the UK lawfully. Secondly, it would empower the Secretary of State to impose a type of penalty for belonging to group 2 that is at variance with the refugee convention: namely, the denial of rights specifically and unambiguously guaranteed by the convention to recognise refugees. Thirdly, it would empower the Secretary of State to impose a penalty on group 2 refugees that would be inconsistent with international human rights law: namely, restrictions on their rights to family unity. There are many other ways in which the Bill as a whole contravenes the refugee convention in clauses other than clause 10, as we will discuss in later debates.

--- Later in debate ---

[Neil Coyle]

Does my hon. Friend share my concern that, once again, the Government will extend the number of people in the UK subject to no recourse to public funds conditions, requiring emergency support from councils and creating a new burden for local authorities of every political colour up and down the country, which will have to provide millions more pounds in support, when people could be supporting themselves and moving on with their lives?

[Bambos Charalambous]

My hon. Friend is exactly right. The burden will fall on all local authorities looking after asylum seekers and their families; they will have no choice but to provide that service. The Government have stayed silent on what provisions they will make for local authorities. I am not sure how far they have even consulted local authorities as to whether they accept what has been proposed.

Clause 10(6) would give the Secretary of State the same power to discriminate against family members of group 2 refugees. At present, the Secretary of State’s powers in that regard are constrained by section 2 of the Asylum and Immigration Appeals Act 1993, which states:

“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention”,

which would appear to preclude the adoption of some of the immigration rules set out in the explanatory notes.

It is worth restating that nothing in the refugee convention defines a refugee or their entitlements under the convention according to their route of travel, choice of country of asylum or the timing of their asylum claim. The Bill is based on the premise that

“people should claim asylum in the first safe country they arrive in”.

That principle is not found in the refugee convention, and there is no history of it in the convention.

[Bambos Charalambous]

I do not know the context in which Baroness Scotland said that, but I disagree with her. I very much believe that that would have been breaching international law, as I have stated throughout my speech.

[Neil Coyle]

Perhaps Government Members would have greater standing on the issue if they were not betraying their own manifesto and cutting aid to countries where people might be able to seek support or stay longer if UK support was not retracted.

[Bambos Charalambous]

My hon. Friend makes an excellent point.

--- Later in debate ---

[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.

[Neil Coyle]

It is not just the detention centres. The Government seem to have learned nothing from Napier. Most recently, they put 500 men in a 73-bed hostel in my constituency.

[Bambos Charalambous]

That is deeply concerning and shows that the Government have not learned any lessons from Napier.

Before I come to the specifics of the amendment, I will first set out exactly why the Government’s record on Napier barracks, alongside the provisions in clause 11, sets such alarm bells ringing. In doing so, I will demonstrate why the amendment is so necessary.

Organisations from the refugee sector that have worked with people held in Napier have identified and documented the following conditions:

“A pattern of spiralling mental health among people placed at Napier. Many people arrive already struggling with self-harm and/ or suicidal ideation, so this is a profoundly harmful context for them.

Chronic sleep deprivation among residents at Napier.

Conditions that are cold and dirty and afford no opportunity for privacy or social distancing.

An isolated and prison-like setting.

A total lack of mental health support onsite; very minimal healthcare onsite, and problems for residents in accessing healthcare in the community.

A sense among residents, in line with HMIP’s observation, of being trapped on site.

Profound vulnerabilities and histories of trauma among residents at Napier are not always obvious on the surface and can be difficult for individuals to disclose in general. Napier is then a very poor context for disclosure, as the prison-like setting is not conducive to building trust. We are therefore concerned that it is not possible to create a screening mechanism for Napier that would pick up all relevant vulnerabilities.

There is very little communication with residents about their asylum case.

Additionally, it is very difficult for individuals to access adequate legal advice, and they frequently go ahead with asylum interviews without having consulted a legal adviser. Virtually no one placed at Napier is able to access face to face meetings with legal advisers, and this seriously obstructs identification and disclosure of trauma.”

Residents of Napier and Penally who have given evidence to the APPG on immigration detention have described the Napier and Penally sites as feeling “prison-like”. Prison conditions have a traumatising effect on people who are already vulnerable as a result of previous experiences that have forced them to seek protection. Ministers must surely be aware that there are bound to be serious concerns about the potential use of such draconian accommodation centres for asylum-seeking men.

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[Bambos Charalambous]

My hon. Friend makes an excellent point. She is absolutely right: even if rights are only restricted, that is not acceptable.

[Neil Coyle]

On a quick point of clarification, I said “500 men in a 73-bed hostel”, but that is certainly not what the Home Office has done in my constituency. They are 73-bed rooms.

The Minister has made a claim that is not the lived reality of the people the Home Office has placed in my constituency, including those 500 men. They have stewards, in effect, who have been telling those people not to leave hotel and hostel accommodation. They were not provided with interpreters; they were not provided with any means of accessing the internet; and the Government have prevented inspectors from going in, including Bishop Paul Butler and the Refugee, Asylum and Migration Policy project, who were promised access to Napier barracks and other accommodation by Ministers. The Government have rescinded that commitment. Perhaps the Minister could tell us why bishops and others are being kept out? What are the Government trying to hide?

[Bambos Charalambous]

My hon. Friend is right about those conditions not being conducive to being able to make a claim with any confidence or certainty.

I was talking about asylum-seeking women. As we highlighted in the debate on clause 10, many such women are survivors of rape and other forms of gendered violence, and such large-scale accommodation is characterised by a lack of privacy. The APPG on immigration detention further notes that at Napier and Penally,

“The lack of private space was also forcing residents to hold sensitive discussions, for example with lawyers, within earshot of other residents and/or staff.”

For many asylum-seeking women who have experienced rape and other gender-based violence, disclosure of their previous experience can be very difficult as a result of the shame and stigma they feel. Accommodation centres lacking privacy is likely to have a specific impact on them, and make it particularly difficult for them to get their claims to protection recognised.

Coupled with that, the punitive detention-type elements of the centres as they are currently run are likely to be retraumatising. We are therefore deeply concerned that clause 11 seeks to expand inappropriate large-scale detention-style accommodation centres. In short, it seems like a way of actively inflicting increased harm on already vulnerable people. Our amendment seeks to ameliorate some of those centres’ worst aspects.

Given everything that has been outlined, it is hardly surprising that the High Court made a damning assessment of Napier barracks. Mr Justice Linden ruled on 3 June 2021 that the accommodation at Napier barracks was inadequate, in that it did not meet the minimum standards required by the Immigration and Asylum Act 1999. Both the process for selecting people to be sent to Napier barracks and the process for monitoring its ongoing suitability while those people were there were flawed and unlawful, and from 15 January 2021, the residents were given an order to not leave the site until they were permitted to do so. The claimants were unlawfully detained, both under common law and the European convention on human rights.

Similarly, the independent chief inspector of borders and immigration and Her Majesty’s Inspectorate of Prisons’ report on Napier and Penally raised a number of serious concerns about Napier, including, inter alia, the following: the screening of potential residents for physical and mental health problems was “wholly inadequate”, with all of those interviewed at Napier reporting feeling depressed and a third feeling suicidal, and extremely poor communication with the people accommodated at Napier. Again, we argue that our amendment is necessary to ensure safeguards that will prevent similar future judgments.

Of course, we know why the Government are taking a more draconian approach to asylum accommodation: it is part of the continuing hostile environment ethos that takes a punitive, negative stance on all matters relating to asylum. Their approach is also clearly fuelled by the misguided idea that taking such a punitive stance will act as a deterrent to those seeking asylum. However, as we stated in the debate on clause 10, there is no evidence that that is the case. Desperate people who are determined to make dangerous journeys will not be deterred when their lives are at stake. The idea that the kind of accommodation awaiting them at the other end has any bearing on people seeking refuge is laughable. People escaping for their lives are not weighing up accommodation in the same way that Ministers might weigh up the merits of a Hilton hotel versus a Travelodge. The idea that making accommodation punitive could in any sense act as a deterrent shows a fundamental misunderstanding of why refugees are prepared to risk their lives to find safety.

However, the kind of accommodation that awaits refugees can do extreme damage if it hinders integration and retraumatises vulnerable people. When the accommodation provided—as in the case of Napier—dehumanises people, puts them in danger of covid-19 and is found to be unlawful, that corrodes the values that make us a civilised society, undermines our reputation as a tolerant and welcoming nation, and gives the nod to some of the most undesirable attitudes that would seek to demonise those in need.

[Neil Coyle]

Does my hon. Friend share my concern about increased criminality by gangs targeting the accommodation to get people involved in criminal activity? That is a direct result of policy from the Department that is meant to oversee law and order.

[Bambos Charalambous]

My hon. Friend is absolutely right. These are vulnerable people, and they are subject to being exploited if appropriate measures are not taken to prevent that from happening. Having them all in one place allows criminals to prey on them.

I come on to the specifics of amendment 104. As I have set out, we have the gravest doubts about the clause. I find it disturbing. Our amendment seeks to ameliorate some of the worst aspects. I will set out each of its aims in more detail.

Presently, persons held in barracks and hotel accommodation are sometimes prevented from entering or leaving their place of accommodation at certain times and some places of accommodation prevent visitors from entering. The amendment addresses this inappropriately draconian situation by inserting proposed new section 22B into the Immigration and Asylum Act 1999. It would qualify that the measure—in new section 22A, which relates to accommodation provided under sections 95A and 98A of the 1999 Act—to allow for the provision of accommodation in an accommodation centre, must allow for persons to be supported to enter or leave the accommodation centre at any time.

Although some controls on entry may be required to prevent persons hostile to residents of accommodation centres from entering, we believe that those held in such centres should be allowed to invite their own visitors. They should also not be precluded from communication with the outside world. The amendment would therefore introduce the right for the supported person

“(b) to receive visitors of their choice at any time; or

(c) to use communications equipment such as telephones, computers or video equipment.”

People working with persons supported in accommodation centres report that some persons in accommodation centres are unaware of their conditions of bail and may not have been provided with the conditions of their bail in writing. That places them at risk of arrest and detention for unknowingly breaching those conditions, or being unable to evidence their identity. The amendment would therefore introduce the provision that persons supported in accommodation centres must be provided with a written document setting out any conditions of bail.

Where controls or restrictions on freedom of movement of supported persons or their visitors are in place, a process for submissions by way of a complaints procedure needs to be in place, and the amendment would introduce a complaints procedure relating to the conditions of the accommodation and a procedure for appealing any decisions that may restrict the person’s freedoms, which will not apply to their bail conditions.

As has been argued, legal action taken against the Government over the suitability of Napier barracks for certain vulnerable groups has shown that the existing system has failed to maintain appropriate safeguards. The possibly widespread expansion of the system that the clause seeks to implement is very alarming and should be deeply concerning to any Member of this House.

The move away from community-based housing is poorly defined. Accommodation centres will unquestionably lower living standards for those seeking asylum. That is not an accident—it is the very design of the Bill and the clause. By the same measure, they will impede integration and advance a more draconian, prison-like setting for asylum seekers, who are, by their very definition, already traumatised individuals. If we do not agree our amendment, asylum seekers will find themselves in cold, dirty, isolated conditions, with all but no support services.

Given the widespread denunciations of the Home Office’s decision to house asylum seekers in Napier barracks, not least by the High Court, it is remarkable that the Government now seek to replicate it elsewhere. It should be noted that Mr Justice Linden criticised what he called the “detention-like” setting for the men there. Our amendment seeks to take away the detention element of the accommodation centres. They are de facto detention centres with prison-like conditions, which are cruel, wholly inappropriate and damaging to the individuals concerned. They can do nothing but increase harm and stress on already marginalised and vulnerable people whom we are beholden to protect under our international treaty obligations.

To speak plainly, the Government have got the wrong end of the stick. Clause 11 helps no one. They will find themselves on the wrong side of history with their ever-more draconian and hostile approach to asylum accommodation and, unamended, this clause starkly highlights that point. Amendment 104 should be supported to rectify that situation and ensure safeguards for the future. It would be utterly shameful if the clause, as it stands, enabled a repetition of the appalling situation at Napier barracks.

Without amendment, clause 11 will undermine the UK’s duty to support and protect those making asylum claims. We believe that the current dispersal system, whereby people seeking asylum live in regular housing in the community, is much better for supporting future integration and ensuring that people seeking asylum are able to access services that they need. We would rather see safeguards in place than the kind of appalling situation seen at Napier.

Nationality and Borders Bill (Fifth sitting)

Debate between Bambos Charalambous and Neil Coyle

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[Bambos Charalambous]

It is a pleasure to serve under your chairmanship, Sir Roger.

I thank colleagues from across the refugee and asylum sector for their considerate and constructive scrutiny of all the proposals made in the Bill’s evidence session in September.

As part of the Opposition’s detailed scrutiny, we will express our serious concerns about the Bill, which we believe does nothing to address the crisis in our broken asylum system and seeks to penalise the most vulnerable people in our society.

I shall first consider the Bill’s impact in addressing historical injustices in British nationality law concerning discrimination, specifically in relation to British overseas territories citizenship. We generally support the proposals in clauses 1 to 5, which seek to close important loopholes.

I pay tribute to the efforts of the British Overseas Territories Citizenship Campaign, which has campaigned tirelessly over many years for the nationality and citizenship equality rights of the children of British overseas territories citizens who have suffered under UK law owing to loopholes that we shall discuss in detail. These people feel a strong connection to the UK and deserve our support.

British nationality law can be complex. Some of the complexity arises from the British history of empire and Commonwealth. In passing the British Nationality Act 1981, Parliament created British citizens and British overseas territories citizenship. In doing so, it abolished citizenship in the UK and colonies—abbreviated to CUKC—which was a unifying citizenship for all persons of the UK and its colonies. This meant that the status of some children had the potential to be changed to overseas citizens, even though they had been born and raised in the UK.

Persons unified by CUKC were therefore separated by the 1981 Act into two groups, but amendments made since mean that the two groups are no longer aligned in British nationality law.

The Bill’s early clauses seek to bring into line the two elements of British nationality—British citizenship and British overseas territories citizenship. For the benefit of those on the Committee, I point out that British overseas territories citizenship is the citizenship of people connected to the territories that the UK has retained. It includes the following territories: Anguilla, Bermuda, the British Antarctic Territory, the British Indian Ocean Territory, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, and the Turks and Caicos Islands.

Clause 1 would create a registration route for the adult children of British overseas territories citizens and for mothers to acquire British overseas territories citizenship. Before the 1981 Act commenced on 1 January 1983, British nationality law discriminated against women, whose children could not acquire British citizenship through them. The Act removed that discrimination, but did not address the impact of that discrimination prior to the Act. Many people, therefore, would have been born British but for this discrimination and continue to be excluded from British nationality after the passing of the Act.

It is clear that a historical anomaly was created. Changes were made under section 4C of the 1981 Act to rectify the situation of children of British citizens, but no such rectification was made for the children of British overseas territories citizens. Members of the Committee will know that under the 1981 Act a number of cases arise in which an individual who would have qualified for automatic British overseas territories citizenship, British citizenship or the right to register or naturalise as a citizen is unfairly prevented from doing so through no fault of their own, as has been the case with the adult children of British overseas territories citizens.

We need to rectify that injustice. The historical inability of mothers to transmit citizenship should be corrected, and I am glad that is being addressed in the Bill. Clause 1 sets out to correct that and create a registration route for the adult children of British overseas territories citizen mothers to acquire British overseas territories citizenship.

The Opposition generally support the changes proposed in clause 1 to close that important loophole. None the less, our amendment refers to a technical matter in relation to the drafting of clause 1—specifically, that it does not follow the language previously accepted to address the injustice, as used in section 4C of the 1981 Act.

I am sure that the Committee will agree that clarity is crucial in matters of citizenship and nationality law. The language used in clause 1 is not sufficiently clear. I will explain why. For example, the clause introduces proposed new section 17A, subsections (a) and (b) of which include the terms “had P’s parents been treated equally”. As Amnesty International and the Project for the Registration of Children as British Citizens outline, the difficulty with such wording is that it tells us nothing about the direction in which equality is to be achieved or indeed in what place.

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

Does my hon. Friend agree that clarity is absolutely crucial, given the mistrust of the Home Office that often exists because of its high error rate in some citizenship and wider visa decision making processes?

[Bambos Charalambous]

My hon. Friend makes an excellent point. Citizenship, clarity and consistency in the law are essential, which is why we seek to rectify the position. The provisions of one Act cannot be inconsistent with those of another.

The amendment would address the difficulty by inserting the wording,

“had P’s mother been treated equally with P’s father”,

in clause 1. It would clarify the clause and the positive intention behind it. I think that there is broad agreement in the Committee on the need to address the historical inability of mothers to transmit citizenship.