Nationality and Borders Bill

Baroness Jones of Moulsecoomb Excerpts

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

[Lord Cashman (Lab)]

My Lords, it is a pleasure to follow my noble friend Lady Chakrabarti. I will be brief. I thank the noble and learned Lord, Lord Etherton, for moving Amendment 68 and associate my name with this amendment. It deals with a glaring omission. I hope the Government will accept the amendment because, as has been rightly said, the Bill states:

“The Secretary of State must declare an asylum claim made by a person who is a national of a member State inadmissible … For the purposes of subsection (4) exceptional circumstances”.


This is where Amendment 68 beautifully sits and deals with that omission because intolerance is on the rise on the grounds of many protected characteristics listed within the Equality Act not only in Hungary, but in Poland and other parts of the EU. Indeed, the EU is somewhat restricted in what it can do with independent member states on some of these issues. I hope that the Minister will indicate that the Government will move on this, and the other positive amendments within this group, because in the end we are dealing with issues of human rights.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am going to make a short speech about how the Government want to have their cake and eat it. One minute the EU is a place where there are lots of freedoms and protections for its citizens, and the next minute it is terribly repressive and we want to get out. Essentially, I support the noble Lord, Lord Dubs.

[Lord Kerr of Kinlochard (CB)]

My Lords, I agree with the noble Baroness, Lady Chakrabarti, but my feeling about these amendments is that that the noble and learned Lord, Lord Etherton, is right and that the best answer is to strike out the clause.

--- Later in debate ---

I promised I would not go on, but I must add my voice to those who express concern about the issue of minimal weight. The clause says that this considers whether a claim can be certified as unfounded or whether further submissions will be accepted, that there is an exception provided, and that there are “good reasons”. Again, I ask the Minister: what are those good reasons? It is unclear how claims from LGBT+ people will be treated. The equality impact assessment talks about mitigation in general terms. However, as I said before, the Home Office does not have a sufficiently positive record on decision-making in these issues.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will speak to Amendments 83 and 88, which I have co-signed, and Amendment 96, but there are some other superb amendments. I am not a lawyer—I am not going to apologise for that because I have had an interesting life— but I did get a lawyer to look at this for me; not yet a QC, but obviously it is a possibility. Their thoughts were that these evidence notices treat asylum seekers like criminals—in fact, worse than criminals; they treat asylum seekers as if they were dreadful criminals.

In a criminal case, late evidence might be treated as less compelling than if it had been raised earlier on, but evidence is evidence, and if evidence demonstrates a fact, then that is a fact. Facts do not care about your timescales. Rather than allowing a tribunal to determine how much weight to give the evidence, Clause 25 forces them to give minimal weight if the evidence is supposedly late. Even if it were the most compelling evidence, a tribunal would be forced to give it minimal weight. That really cannot be right; it is not justice. I cannot believe the Minister will stand up—in a few moments, we hope—and say that this is justice. This is an artificial exercise. It is not founded in justice. It is a purely political venture to make it harder and harder for people to claim asylum, and to make it easier for them to be deported. It must be stopped.

[Lord Etherton (CB)]

My Lords, I will speak to my Amendments 82, 84, 86, 90, 91 and 96. I would like to start by taking up the point about the so-called principle specified in Clause 25(2) of the Bill

“that minimal weight should be given to the evidence.”

I am not aware of such a principle. Of course, there can be times when time limits are imposed in a court—and perhaps it can be done by statute—for evidence to be delivered, and if it is not delivered by that time it is excluded. But once evidence is before the court, as the Minister will appreciate, it has to be taken into account even if the relevant evidence—it may be documentary evidence—has been obtained improperly, when it should not have been disclosed or it has been disclosed inadvertently. Once the evidence is there, it is taken into account and given such weight as it is due. We do not have a principle in this country, so far as I am aware, of simply saying that if evidence is late we are not going to have regard to it. That seems to be a denial of justice. I certainly support all those who have spoken against that so-called principle.

I thank the noble Lord, Lord Coaker, for his introduction to the difficulties faced by minority groups, particularly LGBTQI groups, in relation to the giving of evidence. In deciding whether there is good cause for late evidence, or for failure to comply in a timely manner with a priority removal notice and so on, all my amendments—apart from one—put forward that there be, on the face of the Bill, a provision so that the difficulties and particular situations of people who have a protected innate or immutable characteristic must be taken into account. I went into this, your Lordships will remember, on Tuesday in relation to Clause 11, and there is no need for me to repeat it. It has been put very well by the noble Lords, Lord Coaker and Lord Cashman.

Apart from all the difficulties of having discreet, secret lives—particularly in the case of the LGBTQI community—and therefore perhaps not having any evidence as such, seeking information when it is required, and corroboration, from people back in the country from which asylum seekers come poses great difficulties. An asylum seeker will not want to implicate his or her family or friends, because they could suffer as a result. There are all sorts of adverse consequences as a result of conduct that is disapproved of in the many countries that proscribe sex between same-sex couples. There is a combination of a whole variety of things, in addition to all those other points made by people about the difficulty of coming to terms with one’s sexuality.

The same applies for single women. They have many similar problems: the shame of having left an abusive relationship, the shame on the family, the consequences for the family, the clandestine nature necessarily required for those women to come here—and then they may face a male authoritative figure. All these grave difficulties have to be taken into account.

I explained why this ought to be on the face of the Bill, despite the fact that the noble Baroness the Minister said it would all be dealt with in guidance, because, as the noble Lord, Lord Cashman, said, the record of the Home Office in relation to this is not good. I gave the statistics on Clause 11 earlier this week. In 2018, 29% of LGBTQI applicants were permitted asylum, but on appeal, taking the average from 2015 to 2018, nearly 40% of the appeals succeeded. That reality reflects the grave difficulties and the disbelief faced by these desperate people. That is why noble Lords will see in those amendments—apart from one; I will come to Amendment 91—that they are all to do with putting on the face of the Bill the need to take into account, wherever there is a reference to reasonable cause or what is practicable, the particular protected characteristic of the asylum seeker.

The one that is different is Amendment 91, which is one of the two amendments I have to Clause 22. Clause 22 provides for a new Section 82A to be inserted into the Nationality, Immigration and Asylum Act 2002 and provides for “Expedited appeal to Upper Tribunal in certain cases”. For there to be an expedited appeal, the Secretary of State has to

“certify P’s right of appeal”—

that is, the person served with the priority removal notice—as being appropriate

“unless satisfied that there were good reasons for P making the claim on or after the PRN cut-off date (and P’s right of appeal may not be certified if the Secretary of State is satisfied that there were good reasons)”.

What is important is that, whatever the Secretary of State has to be satisfied about, they should be reasonably satisfied. My amendment is to impose a requirement that the Secretary of State can certify the right of appeal under this clause only if satisfied on reasonable grounds, so that there is some principle that can be examined in the light of the particular facts of the case.