Nationality and Borders Bill (Tenth sitting)

Bambos Charalambous Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)]

I was about to conclude by saying that paragraphs (a) and (c) of subsection (7) suffice to capture every scenario. Removing paragraph (b) does not affect how the clause operates or who it impacts. I commend the amendments and the clause to the Committee.

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

We intend to oppose the clause standing part of the Bill. The clause is an entirely new provision. Its stated aim is to reduce the extent to which people may frustrate removals through sequential or unmeritorious claims, appeals or legal action. It does so by providing for a priority removal notice, or PRN, to be served on anyone who is liable for removal or for deportation. Factors might include where a person has previously made a human rights or protection claim.

According to the explanatory notes, subsection (3) defines a PRN. It states that the notice imposes a duty on the claimant to provide a statement setting out the reasons for wishing to enter or remain in the United Kingdom, any grounds on which they should be permitted to do so, and any grounds on which they should not be removed or required to leave the United Kingdom. The notice also requires them to provide any information relating to being a victim of slavery or human trafficking as defined by clause 46.

The notice also requires them to provide any evidence in support of any reasons, grounds or information. The statement, grounds, information and evidence must be provided before the PRN cut-off date included within the notice. Intended as a warning to the person that they are being prioritised for removal, the notice gives them a period of time—the cut-off period—within which to access legal advice and to inform the Home Office of any grounds or evidence that they want to provide in support of a claim to be allowed to remain in the UK.

The clause and the introduction of priority removal notices are part of wider proposals to fast-track claims and appeals, and to create a one-stop process for claims to asylum to be brought and considered together in a single assessment up front. The consequences of the clauses related to priority removal notices will make it harder for people to bring evidence after making an initial asylum claim and penalise delayed disclosure. Indeed, if anything required by the PRN is provided after the specified cut-off date, a decision maker—when determining a protection or human rights claim, or making a decision as to whether the person is a potential or actual victim of trafficking—will treat it with scepticism and it will be considered damaging to the person’s credibility and their claim.

The requirements related to the PRN are extensive. It requires all manner of claims and evidence to be provided, covering all grounds for resisting removal and all evidence in support. When implemented, that could have incredibly damaging consequences for people seeking asylum, as it requires them to provide extensive supporting evidence by a specified date. For example, it will seriously disadvantage vulnerable people and victims, such as those who suffer from post-traumatic stress disorder, or those who have been trafficked, as well as those who are LGBTQ, as I have mentioned previously.

The introduction of priority removal notices fails to acknowledge the reality of situations that people seeking asylum may encounter. There are many reasons that evidence may be provided late but in earnest, as we have explored already, for example with traumatised victims. The ultimate consequence of people not being able properly to present evidence relating to their claim, or being deemed to lack credibility as a result of failing to present such evidence on time, is that claims may be rejected and people may be wrongly subject to removal. The Opposition are very concerned that these measures may give rise to a significant risk of refoulement and will consequently abandon the UK’s obligations under international law.

In short, the proposals are unacceptable. They form a package of measures that seek to create a one-stop process for asylum claims and fail to do so in a fair or humane way. They are widely condemned by the sector. The Opposition are vehemently opposed to the introduction of priority removal notices and, when they are taken in conjunction with the series of clauses in part 2, are incredibly concerned about these measures. Its potentially strict application risks having a severe impact on asylum seekers and refugees, in terms of both procedural fairness and ensuring that people are protected by the refugee convention. We therefore oppose the clause.

Amendment 60 agreed to.

Amendment made: 61, in clause 18, page 22, line 28, leave out paragraph (b).—(Tom Pursglove.)

This amendment removes a superfluous paragraph (any person within paragraph (b) would in any event fall within either paragraph (a) or (c)).

Question put, That the clause, as amended, stand part of the Bill.

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[Tom Pursglove]

This clause is supplementary to clause 18, which we have just discussed. It makes provision for the validity and effect of a priority removal notice. A priority removal notice imposes requirements to provide any reason and supporting evidence as to why a person should be allowed to remain in the UK. This will reduce the extent to which removal can be frustrated.

Where a priority removal notice has been issued, it will remain in force for a period of 12 months after either the cut-off date specified in the notice or after the recipient has exhausted their appeal rights. A period of 12 months will provide sufficient time for the person’s removal to be enforced. Following the service of a priority removal notice, any previous evidence notice, slavery or trafficking information notice, or notice under section 120 of the Nationality, Immigration and Asylum Act 2002, will cease to take effect. Any appeal right arising from a protection or human rights claim received after the cut-off date will be subject to the expedited process as provided for by clause 21, unless the claimant provides good reasons for late disclosure.

The amendments are minor and technical and are intended to ensure that the new priority removal notice will work as effectively as possible. Amendments 62 to 64 provide for a priority removal notice to remain in force for a period of 12 months after the recipient’s appeal rights are exhausted. Amendments 65 and 66 clarify that a priority removal notice will remain in force where the recipient is no longer liable to removal or deportation from the UK. This makes it clear that where the recipient of a priority removal notice makes an application to the EU settlement scheme that is later refused, they will remain subject to the priority removal notice.

[Bambos Charalambous]

The Opposition will oppose the clause standing part of the Bill. It forms part of the Bill’s new PRN regime, as initially set out in clause 18, and states that the PRN will remain in force until 12 months after the cut-off date or the person’s appeal rights become exhausted, whichever comes last. The Opposition believe that preventing people from being able to bring further evidence for 12 months after they have been issued with a PRN is wrong. It is unfair and it fails to consider the reasons for delayed disclosure, which range from psychological and cultural barriers to the crucial fact that those who are seeking asylum have fled their homes and may not have access to evidence immediately.

When applied narrowly and in conjunction with other clauses in part 2, the proposed provisions potentially risk significant breaches of the refugee convention and the principle of non-refoulement. For those reasons, and reasons discussed in the debate on clause 18, we will be voting against clause 19.

Amendment 62 agreed to.

Amendments made: 63, in clause 19, page 23, line 3, at end insert—

“(1A) In subsection (1) ‘relevant claim’ means a protection claim or a human rights claim brought by the PRN recipient while the priority removal notice is in force.”

See the explanatory statement to Amendment 62.

Amendment 64, in clause 19, page 23, line 4, after “rights” insert

“in respect of a claim”.

See the explanatory statement to Amendment 62.

Amendment 65, in clause 19, page 23, line 11, at end insert—

“(2A) A priority removal notice remains in force until the end of the period mentioned in subsection (1) even if the PRN recipient ceases to be liable to removal or deportation from the United Kingdom during that period.”

This amendment clarifies that although a priority removal notice can only be served on a person if they are liable to removal or deportation, the fact that the person ceases to be so liable does not mean that the notice will cease to have effect.

Amendment 66, in clause 19, page 23, line 23, leave out subsection (6) and insert—

“(6) Expressions used in this section that are defined for the purposes of section 18 have the same meaning in this section as in that section.”—(Tom Pursglove.)

This amendment is consequential on Amendment 65.

Question put, That the clause, as amended, stand part of the Bill.

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[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairship again, Ms McDonagh. As the hon. Member for Sheffield Central said, clause 20 instructs decision makers to take into account

“as damaging the PRN recipient’s credibility…the late provision”

of information and evidence. I absolutely support the hon. Gentleman’s amendment to explore “good reasons” for evidence, including post-traumatic stress. Our amendment 154 provides other examples, such as mental health issues or where a person has been a victim of torture or other crimes that can impact on their ability to provide information. That is similar to debates we have already had.

Amendment 41 revisits earlier arguments about taking into account all the evidence, including lateness in providing it, when assessing a case. It is not appropriate to tell decision makers what conclusions to draw. We say decision makers will often find people to have credibility if lots of new information is provided with respect to that explanation. That is a matter that should be left to them. It is not for parliamentarians to tell decision makers how to analyse claimants.

[Bambos Charalambous]

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

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

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

According to the Immigration Law Practitioners’ Association:

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

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

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

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

[Mr Goodwill]

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

[Bambos Charalambous]

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

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

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

[Tom Pursglove]

By introducing the statutory requirement to provide information or evidence before a specified date, clauses 16 and 18 will contribute to the swift resolution of protection and human rights claims, enabling decision makers to consider all the evidence up front and, where appropriate, grant leave. It is right that where evidence or information is provided late, that should impact on a person’s credibility, and that the decision maker must consider whether to apply the minimal weight principle, unless there are good reasons why it was brought late.

Clauses 20 and 23 both recognise that it may be harder for some people to engage in the process and provide evidence before a specified date. That may be the result of trauma they have experienced, a lack of trust in the authorities or the sensitive and personal nature of their claim. Amendment 41 removes the possible credibility implications stemming from late evidence in response to a priority removal notice. It is right that where evidence or information is provided late, that should impact on a person’s credibility, unless there are good reasons why it was brought late. Where there are good reasons that information or evidence was provided late, the penalties in clauses 20 and 23 will not apply.

Clause 20 recognises that there may be good reasons that evidence was provided late. Where there are good reasons, the associated credibility provisions in clauses 20 and 23 will not apply. Therefore, amendment 41 is unnecessary, as the clause already meets its aim that late evidence should not necessarily be damaging to the claimant’s credibility. As with amendment 39, by removing the possible credibility implications stemming from late provision of evidence, amendment 41 would make such a measure inappropriate for primary legislation and render it pointless. Amendment 154 places a statutory obligation on decision makers to accept that there are good reasons for late evidence where an individual’s claim is based on certain factors, or the individual falls into a particular category. That would apply to Home Office decision makers and, under amendment 154, the competent authority as well as the judiciary.

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Schedule 2 is a necessary accompaniment to clause 21. This important part of the Bill will disincentivise the use of delay tactics to thwart removal actions, while protecting appellants’ access to justice by establishing an expedited appeal for persons who bring unjustifiably late claims.

[Bambos Charalambous]

We will oppose clause stand part.

[Mr Goodwill]

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

[Bambos Charalambous]

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

The Bill’s system of penalisation includes curtailing appeal rights, as set out in clause 21. The clause creates an expedited appeal route for those who have been served with a priority removal notice and who have provided evidence or a claim after the PRN cut-off date. Most importantly, the right of the appeal will be limited to the upper tribunal.

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

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

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

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

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

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

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

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

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

[Stuart C. McDonald]

I agree with everything the shadow Minister said. I want to speak in support of amendment 42, which would preserve onward rights of appeal in certain circumstances.

The overall danger of clause 21 is that it risks expediting appeal processes so that mistakes are made and people are denied justice. Given the dangers that are posed by speeding up such processes, it is all the more important that there is access to the supervisory jurisdiction of the higher courts in case errors are made. We are not talking about minor issues; these are matters of life and death. Assessments have been made about a risk of persecution. Errors will have catastrophic consequences for individuals concerned.

All tribunals make mistakes, so in such circumstances, it seems reckless not to have any right of appeal. I absolutely accept that there can be restrictions and that the grounds for such an appeal can be phrased in a way to try to prevent abuse, but to exclude it altogether goes way beyond what can be justified. Expedited appeals without any possibility of onward appeals creates a double danger of getting those decisions wrong. The fact that claims are made late does not remotely mean that they are necessarily without merit, nor does it mean that they can be decided any quicker than another claim and it should not automatically lead to accelerated appeals processes.

Again, I think that all this is missing the point. The tribunal was actually functioning pretty well. It is the Home Office that has to focus on getting its house in order, and the whole clause is completely misconceived.

Amendment 67 agreed to.

Amendments made: 68, in clause 21, page 24, line 28, after “be” insert “brought and”.

See the explanatory statement for Amendment 67.

Amendment 69, in clause 21, page 24, line 32, leave out from “is” to end of line 33 and insert

“to be continued as an appeal to the First-tier Tribunal and accordingly is to be transferred to that Tribunal”.—(Tom Pursglove.)

This amendment is a drafting amendment to clarify that where the Upper Tribunal is satisfied that it is in the interests of justice to do so it has power to order that an expedited appeal is instead to be heard subject to the usual procedure by the First-tier Tribunal.

Amendment proposed: 42, in clause 21, page 24, line 37, leave out subsection (2). —(Stuart C. McDonald.)

This amendment would protect the right to an onward appeal from an expedited appeal decision by the Upper Tribunal in certain cases.

Question put, That the amendment be made.

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We hope that the clause will encourage all individuals with a priority removal notice to seek legal advice and ensure that the Home Office is aware of the individual’s full circumstances before any removal action is taken. The clause will work to the benefit of all parties involved, from the individuals in need of advice, who can access free and impartial advice, to the Home Office, which will continue to fulfil its duties to protect those in need of its protection and remove those who have no valid reasons to remain in the UK. I therefore commend the clause to the Committee.

[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.

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Amendment 44 is a bit different. It provides an example and illustrates the absurdity of the provisions that we have been debating so far. It would mean that the clause did not apply where the evidence provided proves that a claimant is at risk of persecution by the Taliban. Let us say that a claimant from Afghanistan provides very little evidence of particular individual risk, but then—we might say through sheer stupidity or stubbornness—they provide late evidence that shows conclusively that they are at specific risk from the Taliban. How on earth could we then say that that evidence should be given minimal weight? Perhaps the evidence is a threatening letter. Perhaps it is a photo showing torture or punishment. Perhaps it is news footage of the Taliban condemning the claimant publicly and offering a bounty for his capture. How does the clause operate in those circumstances? Why should minimal weight be given to something that is conclusive or clear? Are we going to remove people to Afghanistan even if we know that they are at risk, simply because of this outrageous provision? The whole idea is dangerous and absurd.

[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.

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[Stuart C. McDonald]

Clause 24 establishes a system of fast-track appeals for those in detention. The explanatory notes state that in 2019-20 it took almost 12 weeks on average for detained immigration appeals to progress from receipt in the first tier tribunal through to disposal, and the aim is for faster decisions in certain cases

“to allow appellants to be released or removed more quickly”.

That sounds almost benign, and who does not want appeals to take place as quickly as possible? But the key issue is whether they can be decided fairly within the timeframe set down in the clause. We are talking not about trying to take three or four weeks off the average time, but about reducing it by almost three quarters. Clearly, the Government believe that the tribunal is wasting a lot of time but I do not see any evidence for that, and I do not see any analysis of why that 12-week average exists.

Five days is an incredibly short timeframe in which to launch an appeal, particularly when a person is detained in an immigration detention facility, often in the middle of nowhere, and where the chances of securing proper legal advice and consultation in that time are incredibly slim. Amendment 45 would delete that requirement.

Amendment 46 would also mean that the tribunal would be required to stop treating an appeal as an accelerated appeal if it was in the interests of justice to do so. Again it is not clear to us why the tribunal should be empowered to continue an accelerated appeal when that is not in the interests of justice. More generally, the clause gives rise to the question of why the Secretary of State should have any say in which appeals can be disposed of expeditiously. Why is she not required just to assess the fairness of a case or give consideration to how complex a case is? Why not leave the tribunal to make those determinations? It would be far better placed to make that assessment.

As Members will know, in 2015 the Court of Appeal found similar rules to be unlawful and held that they created a system in which asylum and human rights appeals were disposed of too quickly to be fair. The Court said that the timetable was

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.

It also said that the policy did not appreciate the problems faced by legal representation obtaining instructions in such cases or the complexity or difficulty of many asylum appeals, and the gravity of the issues raised by them. I have absolutely no reason to think that the proposed policy is any better than that one.

The Government now intend to replace the entire clause with new clause 7, principally it seems to expand the categories of appeal that could be subject to the proposed procedure. My party opposes that expansion and opposes the clause.

[Bambos Charalambous]

We oppose the clause. It seeks the return of the detained fast-track system and to recreate it in primary legislation. The clause imposes a duty on the tribunal procedure rules committee to make rules for an accelerated timeframe for certain appeals made from detention that are considered suitable for consideration within that timeframe.

In the explanatory notes, an accelerated detained appeal is defined as being

“an appeal brought by an appellant who…received a refusal of their asylum claim while in detention…remains in detention under a relevant detention provision…is appealing a decision which was certified by the Secretary of State as suitable for an accelerated detained appeal”.

That system previously existed but was found to be illegal by the High Court in a landmark case brought by Detention Action. The system was found to be unfair as asylum and human rights appeals were disposed of too quickly to be fair. The Court of Appeal described the timetable for such appeals as

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.

It also emphasised, perhaps instructively for this Committee, that speed and efficiency must not trump justice and fairness—something of a feature of part 2 of the Bill. Indeed, hundreds if not thousands of cases have had to be reconsidered by the Home Office or the tribunal because they were unfairly rushed through the process that the Government now seek to recreate. Those cases include survivors of trafficking and torture and other individuals who, on the basis of a rushed and unfair procedure, will have been removed to places where they fear persecution or are separated from their families. There was no adequate system for ensuring that such people were removed from the fast track and given a fair opportunity to present their claims.

Despite that background, the Bill aims to create this unjust and ineffective procedure by reintroducing the detained fast-track process through this clause. It will put that same system, which was deemed unlawful in 2015, on a statutory footing, which will insulate it against future legal challenges.

The clause provides for the Secretary of State to certify a decision if she considers that an appeal would be disposed of expeditiously. It requires the tribunal procedure committee to introduce the following time limits: a notice of appeal must be lodged no later than five working days after the decision was received; the tribunal must make a decision no later than 25 days after the appeal date; and an application for permission to appeal to the upper tribunal must be determined by the first-tier tribunal not later than 20 working days after the applicant was given notice of the tribunal’s decision.

The clause would deny access to justice. First, five days is insufficient to prepare an appeal against a negative decision, particularly where the individual is detained and where their access to legal advice is poor and an individual’s wellbeing may be affected by their detention. For those detained in prison, the situation is even worse. For example, in a case in February of this year, the High Court declared the lack of legal aid immigration advice for people held under immigration powers to be unlawful. More widely, Home Office decision making is frequently incorrect or unlawful. As we know, half of all appeals against immigration decisions were successful in the year leading up to June 2019. It is therefore vital that people are able to effectively challenge decisions through the courts.

The detained fast track is unjust. It is also unnecessary. As the Public Law Project and Justice have pointed out, the tribunal has adequate case management powers to deal with appeals expeditiously in appropriate cases and already prioritises detained cases. The Home Secretary should not be trying to force the hand of the independent tribunal procedures committee to stack the cards in her favour in appeals against her decisions. The Bill does not learn the lessons of the past and seeks to resurrect an unworkable system of accelerated detained appeals. The clause proposes that the appeals process be fast-tracked. I am very worried that provisions in part 2 of the Bill will therefore disadvantage the most vulnerable.

By allowing the Home Secretary to accelerate appeals when she thinks they would be disposed of expeditiously, the clause is clearly unjust. Once again, it also seems to violate the refugee convention. As my hon. Friend the Member for Warwick and Leamington (Matt Western) said on Second Reading:

“It is more than regrettable that the convention appears now to be held in such little regard by this Government.”—[Official Report, 19 July 2021; Vol. 699, c. 769.]

For those reasons, we will oppose that the clause stand part.

[Tom Pursglove]

I understand the motivation behind amendment 45. However, the Government oppose the amendment, as it is contrary to our policy intention and would undermine the effective working of the accelerated detained appeals process.

The period of five working days strikes the right balance, achieving both speed and fairness. The detained fast-track rules put in place in 2003 and 2005 allowed only two days to appeal. The 2014 rules set the same time limit. The current procedure rules allow a non-detained migrant 14 days to lodge their appeal against a refusal decision.

On amendment 46, I can assure hon. Members that it is not necessary, as the Bill already achieves the objective sought. The Government’s aim is to ensure that cases only remain in the ADA where it is in the interests of justice for them to do so. The consideration of what is in the interests of justice is a matter of judicial discretion. Where a judge decides that it is not in the interests of justice to keep a case in the ADA process, we would expect that they would use their discretion to remove the case. The current wording of the Bill—“may” rather than “must”—is consistent with the drafting of the rules that govern all appeals considered in the immigration and asylum chamber.

For these reasons, I invite the hon. Member for Enfield, Southgate to withdraw the amendments. On the detained fast track and wider points about the Government’s intentions, although the courts upheld the principle of an accelerated process for appeals made in detention, we have considered the legal challenges to the detained fast track carefully. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. All Home Office decisions to detain are made in accordance with the adults at risk in detention policy and reviewed by the independent detention gatekeeper. Changes made to the screening process, drawing on lessons learned, will enable us to identify appellants who are unsuitable for the accelerated detained appeals route at the earliest opportunity. Suitability will be reviewed on an ongoing basis and the tribunal will have the power to transfer a case out of the accelerated route if it considers that that is in the interests of justice to do so.

The timescales proposed for the accelerated route are longer than under the previous detained fast track. Appellants will have more time to seek legal advice and prepare their case. We are confident that the new route will provide sufficient opportunity to access legal advice. I am also conscious that Members are interested in what happens in the eventuality that a migrant misses the deadline to appeal a refusal decision. Provided that there are no other barriers to return, removal will be arranged. It is open to a migrant and/or their legal representatives to submit an appeal after the deadline and ask a judge to extend the time and admit the appeal late.

On new clause 7, the Government are committed to making the asylum appeals system faster, while maintaining fairness, ensuring access to justice and upholding the rule of law. In particular, it is right that appeals made from detention should be dealt with quickly, so that people are not deprived of their liberty for longer than is necessary. New clause 7 sets out a duty on the tribunal procedure committee to make rules for the provision of an accelerated detained appeals route. That will establish a fixed maximum timeframe for determining specific appeals brought while an individual is detained.

Currently, all immigration and asylum appeals are subject to the same procedure rules. Appeals involving detained appellants are prioritised by Her Majesty’s Courts and Tribunals Service but there are no set timeframes. It often takes months for detained appeals to be determined, resulting in people being released from detention before their appeals are concluded.

Changes to procedure rules are subject to the tribunal procedure committee’s statutory consultation requirements and procedures. However, the Government’s intent is to ensure that straightforward appeals from detention are determined more quickly. Under a detained accelerated process all appellants will benefit from a quicker final determination of their immigration status, spending less time in limbo, and getting the certainty they need to move forward with their lives sooner.

Those whose appeals are successful will have their leave to remain confirmed earlier than if the standard procedure rules had been followed. Meanwhile those with no right to remain will be removed more quickly, as they can be detained throughout the process, which reduces the risk of absconding.

The courts have been clear in upholding the principle that an accelerated process for asylum seekers while detained, operated within certain safeguards, is entirely legal. I made that point earlier. We have considered the legal challenges to the previous detained fast track carefully and we are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. We will ensure, through regulations and guidance, that only suitable cases will be allocated to the accelerated route. Cases will be assessed for whether they are likely to be able to be decided fairly within the shorter timeframe, and individuals will be screened for vulnerability and other factors that may impact their ability to engage fairly with an accelerated process.

As an additional safeguard, the clause makes it clear that the tribunal can decide to remove cases from the accelerated route if it considers it is in the interests of justice to do so. The new accelerated detained appeals route will contribute significantly to the timeliness with which appeals are decided for those in immigration detention. It will allow us to swiftly remove from the country people found not to need protection, while those with valid claims can be released from detention more quickly.

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[Tom Pursglove]

Protection or human rights claims that are certified as clearly unfounded are those so clearly without substance that they are bound to fail. The refusal of such claims can currently be appealed after the person has left the UK. By contrast, there is no right of appeal against the rejection of further submissions received after a protection or human rights claim has previously been refused, where those submissions do not create a realistic prospect of success. That approach is right: there should be no right of appeal unless there is something of real substance for the tribunal to consider.

The clause removes the out-of-country right of appeal under section 94 of the Nationality, Immigration and Asylum Act 2002 for those whose protection or human rights claims are certified as clearly unfounded and bound to fail, bringing them into line with how we treat further submissions that have no realistic prospect of success. It will apply only to claims that are certified after the clause comes into effect. I would like to be clear that removing the right of appeal for certified claims does not prevent a person from applying for a judicial review to challenge a certification decision. It provides a necessary and effective safeguard in the event that a claim is incorrectly certified as clearly unfounded.

[Bambos Charalambous]

It is ironic that we are debating this clause as the Judicial Review and Courts Bill is receiving its Second Reading. We oppose the clause. We have heard time and again that the Government are aiming to make it harder for a person in the UK to establish their refugee status and entitlement to asylum. Clause 25 further restricts appeal rights for people seeking asylum. This clause removes the in-country and out-of-country rights of appeal for human rights and protection claims certified as clearly unfounded. It is concerning as, once again, it seeks to limit the rights of individuals, while failing to increase efficiency in the system and in turn decreasing fairness, with regrettable consequences for individuals. In respect of articles 6 and 8 of the ECHR, it represents a clear breach and will give rise to legal challenge. That was seen in the case of Kiarie and Byndloss v. the Home Secretary in 2017. At present, where the Home Secretary certifies a case as clearly unfounded, any appeal may be brought only after removal from the UK. In cases concerning protection claims or article 3 human rights claims, such appeals are incapable of providing an effective remedy, because the feared harm will have eventuated before the appeal can be heard.

As the explanatory notes to the Bill acknowledge, the right of appeal is rarely exercised; instead, challenges are brought by way of judicial review. This provision therefore contributes to the general trend in immigration and asylum law away from rights of appeal to the First-tier Tribunal and towards unappealable decisions, which are amenable to judicial review.

For the reasons specified in my speech, we will oppose clause 25 standing part of the Bill.

Question put, That the clause stand part of the Bill.

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People smugglers are profiting from the misery of those who endanger their lives by undertaking dangerous and unnecessary journeys. We must act to fix our broken system and reduce the draw of the UK. The changes in clause 26 and schedule 3 are key components of the system-wide efforts that we are making to prevent irregular migration. For those reasons, I ask hon. Members not to press the proposed new clause and schedule.

[Bambos Charalambous]

The Labour party will oppose clause stand part. Clause 26 opens the door to offshoring by permitting the removal of asylum seekers from the UK while their claim is being determined or while the UK decides whether to take responsibility for the claim.

The clause introduces schedule 3, which allows the Government to remove people who are seeking asylum to countries outside the UK, and hold them in detention there while their asylum claims are being processed—in other words, offshoring. It is our strong belief that the clause should be deleted, and we will vote against clause stand part and against schedule 3. We believe that, through the clause, the Government are seeking to emulate the Australian system as a model. It has been reported that the Home Office is in talks with Denmark to share costs on an offshore detention centre in Rwanda, and a number of other places have also been mentioned.

It is worth examining the available empirical evidence on the ideas underpinning the clause. In 2015, a United Nations report found that Australia’s offshore detention regime was systematically violating the international convention against torture. In addition, in 2020, the prosecutor of the International Criminal Court said the regime was “cruel, inhuman or degrading”, and unlawful under international law.

We are deeply concerned that the Government’s plan appears to emulate a failed system that has been widely condemned for its human rights abuses. When we look in more detail at the Australian model that the Government seem to want to emulate, we find more causes for concern. In 1992, the Australian Government introduced mandatory indefinite detention for asylum seekers who arrive by boat—that policy remains in place. In 2001, they introduced the Pacific solution, whereby boats were intercepted by the navy and taken to processing centres on Manus and Nauru. In 2008, the Australian Labour Government ended that practice, branding it an “abject policy failure”, only to reintroduce offshore detention in the early 2010s. Approximately 4,180 people were transferred offshore between 2012 and 2014, at which point the transfers stopped.

Conditions and events inside the centres were secretive; journalists and legal representatives were generally banned from entering. That created the conditions for the systematic abuse of asylum seekers by those running the facilities. In 2016, The Guardian released records of more than 2,000 incident reports from Nauru—known as the Nauru files—documenting widespread abuse and neglect in offshore detention. That included systematic physical and sexual assault on children and adults, the use of blackmail by guards, and attacks and harassment by people on Nauru or Manus Island. At least 12 people are reported to have died in the camps, with the causes of death including medical neglect, suicide and murder by centre guards.

Aside from the immeasurable human cost, this failed system has been dismantled by its own architects. A recent research report by the Kaldor Centre found that there is no evidence that the policy achieved the stated aim of “stopping the boats” and that since 2014 the Government have been trying to distance themselves from the policy. Thanks to the powerful stories of the people affected, it has been increasingly rejected by the Australian public. It has cost billions of Australian dollars. The policy has clearly failed disastrously, and we are deeply concerned that this Government are seeking in this clause to bring the policy to the UK.

The impact of offshore detention on mental health cannot be overstated. In the Australian example, conditions in offshore detention centres have been inhumane and unfit for human habitation. The mental and physical health impact of offshore detention has been colossal. In 2014, the Australian Human Rights Commission found that 34% of children in detention suffered from mental health disorders of a seriousness that would require psychiatric referral if the children were in the Australian population, and paediatricians reported that the children transferred to Nauru were among the most traumatised they had ever seen. Medical experts working with the UNHCR found rates of mental illness in people in offshore detention to be among the highest recorded in any surveyed population. Médecins Sans Frontières reported that the suffering on Nauru was some of the worst that it had ever encountered. There is absolutely no way, in our view, that the UK Government should be risking huge harm against children in terms of their mental health by emulating that failed policy.

Furthermore, the financial cost of the Australian system is astronomical and regularly more than $1 billion a year. The Refugee Council of Australia compiled a detailed breakdown of offshoring costs and found that it had cost the Australian Government $8.3 billion between 2014 and 2020. The annual cost per person of holding someone offshore in Nauru or Papua New Guinea has been estimated to be $3.4 million—per person. Again, we are deeply concerned that the UK Government are seeking to emulate a policy that is extremely likely to have extortionate costs in financial terms. The financial impact of this policy will be huge. That all these increased costs go simply to stopping boats, as a deterrent, which the Minister alluded to, shows that it is a failed policy. This is fiscal incompetence from the Government: in their own prediction of what the policy costs, they have estimated exceeding that every year. It will be a budget impossible to predict, based on the number of people whom they propose to offshore. We have the Budget tomorrow, so I will be interested to see what provision the Chancellor of the Exchequer has made in relation to that and the comprehensive spending review.

Let us look in more detail at what the Government are risking with this policy in terms of the human cost. There are countless stories of the lives destroyed by the policy of offshoring. Loghman Sawari, whose story was covered by The Guardian, is still detained, despite having been accepted by Australia as a refugee in 2014. Eight years after the initial detention, he told The Guardian that the days have begun to run one into another and his memory is failing. The Maghames family arrived in Australia by boat in 2013 and were detained on Christmas Island before being transferred to Nauru in March 2014. Hajar Maghames, along with her parents and younger brother, has been in detention ever since, despite being granted refugee status in 2019. In 2020, they were transferred to Australia so that her father could receive medical care, and they are now in cabins at the back of Darwin airport. They are now the only people held there.

I would be grateful if the Minister clarified whether people being processed wherever they are offshored will, if their claim is successful, be brought back to the UK, and what estimate he has made of the cost of that.

To continue with my examples, Reza Barati, who, like the family to whom I just referred, had fled Iran, is one of the 18 people to have died in offshore detention. He was beaten to death by guards and other workers on Manus Island after a protest turned violent and the centre was attacked. He died four days after his 24th birthday. His family are suing the Australian Government and G4S for negligence. During the same incident over two days in February 2014, 70 refugees and asylum seekers were injured. One lost his right eye. Another was shot in the buttocks. One man was attacked from behind by a G4S guard who slashed his neck, causing a 10 to 12 cm horizontal slit across his throat. There have been many others, including the high-profile cases of author Behrouz Boochani or the Tamil family from Biloela, whose harrowing stories have ultimately helped to turn public opinion against this policy.

Offshoring in large accommodation centres poses particular risks to LGBT+ people seeking asylum because of their particular vulnerability. Organisations such as Rainbow Migration and Stonewall have raised concerns that housing people in such centres outside the UK will result in systemic verbal, violent and sexual abuse of LGBT+ people who are in need of protection and who have higher rates of self-harm and suicide.

There is much evidence that LGBT+ people already experience systemic abuse and harassment in the UK’s current accommodation and detention system, led by staff and others with whom they are housed or detained alongside. The problems tend to continue, even when people are moved to a new property. Documented examples provided by organisations that deal with victims have included unwanted sexual advances, threats, invasions of privacy, verbal abuse, being prevented from sleeping, pranks and sexual assault.

It is therefore deeply worrying that offshore processing centres are likely to escalate the homophobic, biphobic and transphobic abuse that LGBT+ people experience in existing asylum accommodation and detention centres. It is even more shocking when one considers that many refugees in the LGBT+ community have fled their home countries specifically because of abuses and persecution that they have experienced there.

Offshoring also presents a significant risk of harm to women who have survived rape and sexual exploitation. It is difficult to see how women who have survived such atrocities would be exempt from offshoring because it is clear that the Government’s key objective for offshore detention is deterrence. According to the Government’s logic, there can be no exceptions to this policy, because otherwise the objective of deterrence is undermined.

This was seen when offshore detention was reintroduced by the Australian Government in 2012. All people seeking asylum who arrived by boat were liable for removal to the islands of Nauru or Manus

“even if they...had characteristics warranting special consideration, such as being an unaccompanied minor, a survivor of torture and trauma, or a victim of trafficking”.

It is clear that the UK Government, by introducing such provision for offshoring, must be willing to subject children, pregnant women, survivors of trafficking and other vulnerable people to offshore detention.

[Tom Pursglove]

I hope that I can help the hon. Gentleman somewhat by making it very clear that children will not be transferred overseas for their claims to be processed.

[Bambos Charalambous]

I am grateful to the Minister for clarifying that point, but there are still others with vulnerable characteristics, including pregnant women and survivors of trafficking who will be subject to offshore detention.

I hardly need to outline the inhumanity of this policy as it applies to women victims of rape and sexual violence. I am deeply concerned about the conditions in which women will be held, and particularly the risk to them of further sexual violence and abuse. In detention centres in the UK, where there are a range of safeguarding mechanisms in place, it has not been enough to protect people in detention from abuse. The 2015 Lampard report on Yarl’s Wood, which until last year was the main detention centre for women in the UK, highlighted that between 2007 and 2015, 10 members of staff had been dismissed for incidents involving “sexual impropriety” towards women held there. Such “impropriety” included the repeated sexual harassment and abuse of a 29-year-old woman by a male healthcare worker.

When it comes to offshoring, the UK Government will have even less control over the treatment of detainees in offshore detention centres. The risk to women of sexual violence and abuse in such centres will be increased. The sexual harassment and violence to which women detained offshore by the Australian Government were subjected has been well documented.

There is no empirical evidence to support the effectiveness of offshoring as a deterrent strategy in respect of those fleeing persecution. A recent report by the Kaldor Centre for International Refugee Law highlights that in the year following the Australian Government’s reintroduction of offshore detention

“more than 24,000 asylum seekers arrived in Australia by boat. This number was considerably more than at any other time since the 1970s, when boats of asylum seekers were first recorded in Australia. Moreover, as the months passed, and news of the policy presumably reached some of those who were contemplating travelling by sea to Australia, there was no noticeable change in the rate of arrivals, with boats of varying numbers of people (from two to more than 200) continuing to arrive on average several times per week.”

That brings us back to the fundamental fact, discussed earlier in reference to other clauses, such as clauses 10 and 11, that policy measures that rely on deterrence assume that people have a choice in the decisions they make. People who are forced to flee their countries because of violence and persecution have no such choice. Therefore, deterrent measures will not stop them making the journey to find safety. The likelihood is that offshoring will be completely ineffective in its aims, as well as deeply inhumane.

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[Stuart C. McDonald]

The amendment is a probing one. The basic point is that if someone is at risk of persecution, we must be incredibly careful when creating gaps, loopholes and exceptions that would still see that person subject to removal to the very place where they would be at risk. The convention creates and recognises very specific exceptions to the fundamental principle of non-refoulement.

If someone is a danger to security here or has committed a particularly serious crime, they constitute a danger to the community. The amendment challenges the attempts in the clause to broaden the scope of the exceptions so that persons are automatically deemed and not just presumed to have committed a serious offence if they are sentenced to one year in prison, rather than two years. We have particular concerns about the circumstances where the crime has been committed overseas. How do the Government intend to be sure about the safety and appropriateness of prosecution, conviction and sentence?

Nobody is saying that refugees should not face appropriate punishment for their crimes, but the danger is that those sentenced to one year or more face an additional punishment that puts them at risk of persecution, torture and death. That is way beyond what is merited by the crime. The withdrawal of refugee rights should not be done in anything other than the most serious circumstances. We fear that the clause goes beyond what the convention envisages.

[Bambos Charalambous]

I just wish to add to the points made by the SNP spokesperson. The whole UK criminal justice system is based on having magistrates courts that deal with the less serious offences, which have a maximum sentence of up to 12 months, and we then have the Crown court, which deals with the more serious offences, with a sentence above 12 months. Defining something as serious with 12 months’ imprisonment seems to be contrary to other aspects of our judicial system.

Labour also has concerns about people who have been trafficked who may have been forced to commit offences. They may have been convicted of a criminal offence as a result of their trafficking, whether that is because of drugs, prostitution or another such offence that might attract a penalty above 12 months. We have some concerns about the redefinition and I wonder whether the Minister can clarify what might happen to someone who has been trafficked, has committed an offence and has received a sentence of 12 months. Would the clause apply to them, because that does raise concerns about it? I do not know whether he will be able to assist in that regard.

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[Stuart C. McDonald]

Certain very important provisions in the Bill refer to a state providing protection in accordance with the convention. In particular, it is incredibly important to the inadmissibility provisions in justifying removal to so-called safer countries. We need to define it, and we would do so through amendment 55 by referencing all the rights set out in the refugee convention. We thereby seek to ensure that the standards of that convention have been fully upheld. The amendment poses the question to the Government of whether they are a champion of the full range of rights in the convention, or are requiring people to claim asylum in countries where little more than lip service is paid to it, and nothing more than a protection against refoulement is provided. That is the issue at stake, in a nutshell.

[Bambos Charalambous]

In order to save time—I know that we have had a very long day—I will bear in mind that the wording of amendment 135 is almost identical to that of the amendment tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. He did it justice when speaking to it, and we will support it.

[Tom Pursglove]

I thank hon. Members for tabling the amendments. I have listened carefully to the arguments that they have put forward. I agree about the importance of the United Kingdom continuing to meet its obligations under the refugee convention, including through the rights that we provide to refugees. The amendments to clause 36 relate to the inadmissibility provisions set out in clause 14. I understand the spirit of the amendments in wishing to define protection in accordance with the refugee convention where we may seek to remove an individual to a safe country. However, clause 14 as drafted ensures that the principles of the refugee convention should be met if we are to remove an individual to that country.

If individuals have travelled via, or have connections to, safe countries where it is reasonable to expect them to have claimed asylum, they should do so. They should not make unnecessary and often dangerous onward journeys to the UK; however, if they do, we will seek to remove them to a safe country. We will only ever return inadmissible claimants to countries that are safe and where the principles of the refugee convention are met. For those reasons, I cannot support the amendments, and I ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw amendment 55.