Security Threat to UK-Based Journalists

Bambos Charalambous Excerpts

Monday 20th February 2023 Commons Chamber

[Tom Tugendhat]

Yes, is the answer. The reality is that state-based threats have increased in the last few years, and we know the obvious sources of such aggression—sadly, they have been written all too large on the global map. However, other states that are not so well-advertised have also been exploiting our freedoms and liberties to further their ends, and we will stop them.

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

Earlier this month I met with BBC Persian journalists to hear about the challenges they face in reporting on the Iranian regime’s horrific human rights abuses, and around the world journalists are increasingly under threat for seeking to tell the truth and it is shocking that this is now the case in the UK. Is the Minister satisfied that the steps he has outlined today will protect press freedoms so that this situation is not repeated and UK-based journalists such as Iran International are able to operate safely and freely? When does he expect his taskforce to report back on extra security measures to be put in place?

[Tom Tugendhat]

I welcome that question. No, I am not satisfied; the reality is that there is more to do. That is exactly why the Prime Minister asked me to set up the taskforce; the Prime Minister himself is not satisfied. We will be coming forward with a series of options in respect of the integrated review, and from there a decision will have to be taken by the Government, and it will be a wider call. But the hon. Gentleman can be assured that the entire Government—including the Prime Minister and the Home Secretary—are absolutely committed.

Oral Answers to Questions

Bambos Charalambous Excerpts

Monday 25th April 2022 Commons Chamber

[Kevin Foster]

I am very happy to meet my hon. Friend to discuss those women’s cases. Of course, through the Afghan citizens resettlement scheme we are working with groups such as the UNHCR to identify those who would be particularly affected by Taliban rule.

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

13. What estimate she has made of the cost to the public purse of the Government’s policy to relocate asylum seekers to Rwanda.

[The Secretary of State for the Home Department (Priti Patel)]

Our world-leading migration and economic development partnership with Rwanda will be a major boost to Rwanda and allow us to focus our efforts on people in need, not those who have the ability to pay people smugglers to make dangerous, illegal journeys from safe countries such as France.

[Bambos Charalambous]

The policy of sending asylum seekers to Rwanda is unworkable and unethical, and it will either cost billions or result in so few people being sent to Rwanda that it will not act as a deterrent to all the evil people smugglers. Will the Home Secretary tell me how much the policy will cost per person, or what her maximum budget is?

[Priti Patel]

We have discussed this several times in the House in the last week. The UK is providing an initial investment of £120 million of support for the partnership as part of the new economic transformation and integration fund. I heard what the hon. Member’s party said—Labour Front Bench Members were chuntering about this last week—in calling the policy extortionate and unworkable. Of course, that is completely illogical because if it is not workable, it will not cost the British taxpayer money.

Nationality and Borders Bill

Bambos Charalambous Excerpts

Report stage
Tuesday 7th December 2021 Commons Chamber

[Henry Smith]

I am grateful to the right hon. Gentleman for his support, and I agree with every word he said.

We have had over half a century of appalling injustice, in many different regards, for this community. It is now time that this House rights the wrongs that they have suffered. In allowing British overseas territories citizenship for the descendants of the Chagos Islanders, we can go a long way towards doing that. Chagos islanders were forcibly removed from their homeland not by this House but by an Order in Council. This issue has never had the proper scrutiny of this elected House, which can now play its part in righting a significant historical injustice. I therefore call on Members from across the House to support new clause 2.

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

It is a pleasure to follow the excellent speech by the hon. Member for Crawley (Henry Smith) in proposing new clause 2. I pay tribute to his commitment to this cause, which has been a long-standing one for him and his constituents. I wish to put on record the Opposition’s support for the new clause, which seeks to rectify the long-standing injustice in British nationality law that affects a relatively small number of people—Chagossian people, descendants of the Chagos islanders, who were forcibly removed from the British Indian Ocean Territory in the 1960s. The fact that British citizenship does not automatically pass to second and third generation Chagossians despite some of them migrating to the UK with their British parents as very young children is nothing short of a scandal. I hope that hon. Members on both sides of the House will support new clause 2.

Whereas the hon. Member for Crawley is seeking to rectify an injustice, the Nationality and Borders Bill does the opposite and seeks to create chaos and injustice. I will focus my comments on part 1. Clause 9 provides the Government with dangerous and unprecedented powers to deprive UK nationals of citizenship, without warning. We are wholeheartedly opposed to this. Through clause 9, the Government seek to amend the long-standing position under the British Nationality Act 1981 that an individual must be notified if they are to be deprived of their nationality. It exempts the Government from giving notice of a decision to deprive a person of citizenship if authorities do not have the subject’s contact details or if it is not “reasonably practical” to do so. The Government’s proposal also allows such secret deprivations to take place solely on the basis that the Home Office deems it “in the public interest” or in the interest of “foreign relations”. Effectively, this means that the Home Secretary can strip someone of their citizenship without informing them because it would be internationally embarrassing for her to do so. This abhorrent proposal therefore enables the Government to remove basic fairness, on top of an already dangerous power.

Like many measures in the Bill, there is no practical reason for this change. Present rules already allow for citizenship deprivation letters to be delivered to an individual’s last known address. The real purpose of this rule appears to be to introduce measures that remove the right to appeal. These measures make lawful previously unlawful citizenship stripping. They ask Parliament to pretend that an unlawful decision was lawful all along. It is shameful and Orwellian in equal measure.

[James Daly (Bury North) (Con)]

I wonder whether the hon. Gentleman could cast his mind back to the Nationality, Immigration and Asylum Act 2002, where, for the first time, people who had acquired British citizenship through birth were made subject to citizenship deprivation powers. So what he has just commented on was brought in and voted through by a Labour Government. Could he address that point?

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[Bambos Charalambous]

As I mentioned, any reasons to strip people of citizenship are given on notice, but this deprives people of the right to—

[James Daly]

Do you agree with the principle?

[Bambos Charalambous]

I do not agree with the principle of it: it should be done on notice.

Clause 9 means that individuals will not be able to challenge deprivation of their nationality as they will not be aware or told that they are no longer British citizens, and the time limit for appeal may run out before the individual becomes aware that their rights have been stripped. As Reprieve has pointed out, under these proposals, a person accused of speeding would be afforded more rights than someone at risk of being deprived of their British nationality.

[Stephen Timms (East Ham) (Lab)]

I very much agree with the point that my hon. Friend is making. Is he aware of the very widespread alarm that clause 9 is creating up and down the country?

[Bambos Charalambous]

My right hon. Friend is exactly right.

In recent years, the Government have unlawfully failed to satisfy the simplest of obligations in relation to citizenship deprivation: providing notice to people that they are seeking to deprive them of their rights. Having been found to have unlawfully stripped people of citizenship without telling them, the Home Secretary now seeks to undo these unlawful actions.

[Paul Bristow (Peterborough) (Con)]

Can I just ask the hon. Gentleman very simply: does he agree with the principle of citizenship revocation? Forget the issue of duty of notice—does he agree with the principle of it?

[Bambos Charalambous]

The British Nationality Act has been in law for the last 40 years and that provides the power to strip people of citizenship. What we are talking about here is doing it without notice.

[Kim Leadbeater (Batley and Spen) (Lab)]

Does my hon. Friend agree that to deprive a person of their citizenship without warning or explanation would be a flagrant breach of natural justice and that to do so as an alternative to submitting that person to due process under the law risks undermining our national security, rather than enhancing it?

[Bambos Charalambous]

My hon. Friend makes an excellent point. She is exactly right. How can it be right that somebody is able to be stripped of their citizenship without knowing about it? That is clearly a breach of natural justice.

[Hilary Benn (Leeds Central) (Lab)]

My hon. Friend has made a very important point about people not knowing that they have been deprived of their citizenship and how that might affect their ability to appeal. Clause 9 says that someone subject to these new rules

“may appeal against the decision to the First-tier Tribunal.”

However, as I understand it, rule 8 of the Special Immigration Appeals Commission gives individuals 28 days to appeal deprivation of citizenship if they are outside the United Kingdom. Does not he agree that the Minister, in responding today, has to give absolute clarity that that 28-day period will be extended?

[Bambos Charalambous]

My right hon. Friend is absolutely right. How can someone know when the 28 days are going to run if they have not received notice of the decision to strip them of their citizenship? It is basic.

[Imran Hussain (Bradford East) (Lab)]

Does my hon. Friend agree that at the heart of this matter is the complete stripping away of due process? A person does not have to be given notice, or a reason why they are being stripped of their nationality. This has a disproportionate impact on our black, Asian and minority ethnic communities.

[Bambos Charalambous]

My hon. Friend makes a very good point. This measure will clearly affect people who have other citizenships available to them, because it is unlawful to deprive someone of citizenship and leave them stateless. Clause 9 is about people’s citizenship, identity and, ultimately, rights; without citizenship, people do not have rights, and that leaves them without an identity or a sense of belonging.

[Richard Graham (Gloucester) (Con)]

Will the hon. Member give way?

[Bambos Charalambous]

I will give way one last time, but I need to make progress; otherwise, there will be very little time for anyone else to speak.

[Richard Graham]

I am grateful to the hon. Member. He is a reasonable man, so I am sure that he will agree that when it comes to sensitive issues, such as the very small number of people whose nationality may be revoked by the Home Secretary, as has been possible for the past 100 years, it is incredibly important that they are not the subject of rather embarrassing scaremongering, such as that being done by the hon. Member for Bradford East (Imran Hussain). Will the hon. Member for Enfield, Southgate (Bambos Charalambous) confirm at the Dispatch Box his clear understanding that when someone has a single nationality, they cannot have their nationality revoked and be sent abroad, as the hon. Member for Bradford East has implied?

[Bambos Charalambous]

Many people have dual nationality in the UK, and those are the people who are in fear of the measure being introduced. I will now make progress.

The clause not only represents a total disregard for justice and the rule of law, but also says to certain British citizens that despite their being born and raised in the UK, their rights will always be precarious and subject to change, because, in the words of the Home Office,

“British citizenship is a privilege, not a right.”

The consequences of that are drastic. It is a threat to all, but particularly to those from ethnic minority backgrounds. According to analysis by the New Statesman, nearly 6 million people in England and Wales could be affected, and under this proposal, two in five people from an ethnic minority background are eligible to be deprived of their citizenship without being told.

Have the Government learned nothing from the Windrush scandal? They are repeating the same mistakes time and again. How can we trust the Government and the Home Office? How can we trust them with the measures proposed in clause 9? Simply put, we cannot, and I therefore commend the right hon. Member for Haltemprice and Howden (Mr Davis) on bringing forward amendment 12, which would remove clause 9 from the Bill. We support that amendment in the name of fairness and in order to uphold the rule of law.

Another aspect of part 1 that we are concerned about is statelessness and, in particular, clause 10, which is intended to disentitle stateless children in the UK from their statutory right to British citizenship. I thank my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) for tabling amendment 111, which would give effect to the recommendations made by the Joint Committee on Human Rights, which published an excellent report on the Bill earlier this month. I wish to put on record my thanks, and I am sure the whole House’s thanks, for the enormous contribution she has made as a parliamentarian to preserving rights and demanding equality. She will be sorely missed when she steps down at the next election.

Clause 10 proposes amending and restricting a vital safeguard in British nationality law that prevents and reduces childhood statelessness. Under our international obligations, we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here. The Government’s proposals to restrict and amend that obligation are an affront to children. They will impose the most profound of exclusions on children: the denial of any citizenship, and particularly citizenship of the place where they were born and live—the only place they know. This exclusion and alienation, when inflicted on a child in their formative years, will be highly damaging to their personal development and their feelings of security and belonging. The Government consistently failed, on Second Reading and in Committee, to explain what assessment has been made of the impact of this proposal on statelessness. That is unacceptable.

We Opposition Members therefore welcome amendment 111, and support its intention of ensuring that the Government act in compliance with article 1 of the 1961 UN statelessness convention. It would amend clause 10 so that British citizenship was withheld from a stateless child born in the UK only when a parent’s nationality was available to the child immediately, without any legal or administrative hurdles. This is a necessary amendment, as the Government have failed to protect the existing safeguards, which are in line with international law, in this Bill; on the contrary, they have introduced cruel and unworkable proposals that will only exacerbate the challenges for children and young people in the UK.

New clause 8, tabled by my hon. Friend the Member for Streatham (Bell Ribeiro-Addy), is on an issue that follows on from that of child statelessness. We support that new clause, which concerns the fee—£1,012 for a child—that people must pay to exercise their right to be registered as a British citizen. Like hon. and right hon. Members across this House, I have raised many cases on behalf of constituents navigating this inefficient, ineffective and expensive system. The fees imposed by the Home Office deny people their rights. Application fees are one barrier, and Home Office delays and inefficiencies are another. If we look at the figures, we see that the unfairness is extremely stark—even to the former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), who rightly described the registration fees for children as

“a huge amount of money to ask children to pay”.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

I have heard that when the Bill was being prepared, the Children’s Commissioner was not consulted at all about its implications for the status of children. Can that possibly be right? Can my hon. Friend enlighten the House on that point?

[Bambos Charalambous]

My hon. Friend makes a very good point. I am not aware that the Children’s Commissioner was consulted, but I am sure the Minister will clarify whether they were.

The fee for a child to register as a British citizen stands at £1,012. The Home Office confirms that the cost of registration is only £372. The remaining £640 is, therefore, money made after delivery of the service. Home Office registration fees do not reflect the cost of registration. On the Government’s watch, people are being prevented from accessing the immigration system, and that leads to exclusion and isolation for the children and young people who are denied citizenship due to the barriers in their way.

Citizenship should not be about cost; it should be about contributing to our communities and inclusivity, but under the current system, it is about cost. By design, it is about astronomical application fees. Rather than fixing these problems through this legislation, which, despite its draconian measures, provides a unique opportunity to right this wrong, the Government concern themselves with outlandish and unworkable policies. I strongly urge Members from all parts of the House to carefully consider new clause 8, tabled by my hon. Friend the Member for Streatham. It would deliver fairness where the Government have failed to, and it has our full support.

Finally, I wish to speak about another issue that has broad cross-party support—a further important and unique opportunity to right wrongs. New clause 5, in the name of the right hon. Member for Ashford (Damian Green) and others, relates to the British national overseas visa scheme. As we know, the BNO scheme was, in theory, designed to offer a path to citizenship for Hongkongers, but in practice the scheme is not working as well as it could. Indeed, there are worrying and significant loopholes in it that mean individuals and groups of individuals are being left in limbo. That is particularly true for younger Hongkongers who have fled the country over fear of repercussions, as those born after 1997 do not hold BNO passports, and are therefore unable to settle in the UK via the BNO route. The result of this loophole in the BNO scheme is that young people who have fled police brutality find themselves fighting for their rights within the sclerotic and inefficient UK asylum system, having been arbitrarily excluded from the scheme because of their age.

Hongkongers born after 1997 do not hold a BNO passport. Those documents were issued to citizens following the handover of Hong Kong from the UK to China in 1997, so those aged under 24 cannot benefit from the BNO scheme. Home Office figures show that there were 124 asylum claims from Hong Kong nationals in the year to June 2021, compared with 21 the year before and just nine in the year to June 2019. This is a growing problem, and it cannot be swept under the rug. For those stuck in the system, there is, in the words of Hong Kong Watch, an “agonising wait”. That should not exist, and could be fixed in the BNO scheme. Again, the Opposition proposed that in Committee, and naturally we fully support new clause 5. There are deep and historical ties between the UK and Hong Kong. The Government must not waiver in their commitment to people whose way of life has been put at risk. By accepting new clause 5, they could take a significant and immediate step towards that, with the Opposition’s support.

The Government’s decision to offer the Hong Kong BNO scheme is a welcome expression of the UK’s historical relationship with the citizens of Hong Kong. Individuals and families arriving from Hong Kong will enrich the UK’s cultural life and contribute to our economy. However, without amendment, the scheme is in danger of being just more warm words. As I have said on other amendments and new clauses, despite our deep concerns about the Bill’s draconian, dog-whistle politics when it comes to refugees and asylum seekers, it provides an opportunity to right wrongs in our system. I will leave my comments there, as I know that many hon. Members wish to speak.

[Several hon. Members rose—]

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[Bambos Charalambous]

This Bill is a sham. It does nothing to create safe routes for resettlement, nothing to garner international support for breaking people-smuggling gangs, and nothing to support victims of modern-day slavery. Instead, the Nationality and Borders Bill creates unworkable policies, lets down victims who have been trafficked, and breaks our international obligations. The Bill is a smoke-and-mirrors trick, designed to deflect attention from the Government’s failings and incompetence in the area of asylum and refugee protection.

It is shameful that since the abandonment of the Dubs amendment, the UK has turned its back on unaccompanied child refugees and young people in need of protection. Young people are having to turn to people-smuggling gangs. We need to make sure that the model is broken. People have died during dangerous crossings, and it is important that we tackle the criminal people-smuggling gangs. To do that, we need international co-operation and greater security, and that is why Labour Members have tabled new clause 50, which would make advertising people-smuggling routes via social media an offence. If the Government are serious about tackling the gangs, we cannot see why they would have any problem supporting the new clause.

Smugglers and trafficking gangs are putting people’s lives at risk, and they use social media to promote, encourage, advertise and organise these dangerous crossings. Too often, when the National Crime Agency asks Facebook, TikTok and others to take down dangerous material, they refuse. We have to strike at the heart of this illegal and dangerous operation. That is why we propose a new, additional criminal offence; it would not replace existing offences. The new offence would make it clear beyond doubt that such material is illegal and dangerous, that we will prosecute those responsible for it, and that we expect social media companies to take it down.

It is well known that people-smugglers promote dangerous routes on social media platforms including Facebook and TikTok. They often promise easy journeys at an extremely high cost. Those who are interested may be told to send private direct messages to the smugglers, because they know that private conversations are encrypted and much more difficult for police and intelligence agencies to access. If the Government are serious about tackling the criminal gangs profiting from people’s desperation, they must take urgent action to tackle the problem online. At the moment, they talk tough, but the policing and intelligence response is failing to keep up. The Government should back Labour’s new clause 50 today. Those seeking to profit online from people’s desperation must be made to feel the full force of the law.

As everyone in the Chamber knows, the Dubs amendment was passed in May 2016 by David Cameron’s Government in the wake of an increase in refugees arriving from Europe. It required Ministers to relocate and support asylum-seeking children from the continent. It was initially envisaged that the Dubs scheme would offer settlement to 3,000 children, but the number of places was capped at 480. In May 2020, it emerged that the smaller quota had been filled, and the scheme was abandoned. Ever since, Members from across the political spectrum have warned that this bad decision would force hundreds of vulnerable children to turn to people-smuggling gangs for assistance in travelling to Britain, placing them at greater risk of trafficking.

The Government’s inaction has been deeply depressing. Ministers have shown a callous disregard for the plight of children. When debating these issues, Ministers have made the shameful claim that so-called pull factors for refugees are a reason not to help unaccompanied children to safety.

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

Does the hon. Member recognise that since 2015, the number of unaccompanied children arriving in the UK and going into the care of local authorities has doubled from an average annual run-rate of just over to 2,000 to significantly over 4,000, and that the Syrian resettlement scheme included an element of specifically identifying vulnerable children and bringing them to the UK as a place of safety? Does he therefore accept that it is simply not true that the Government have turned their back on refugee children?

[Bambos Charalambous]

At the moment, there are no safe routes for children to come to the UK. That is why there has been an increase in crossings and more unaccompanied children crossing.

[Tim Loughton]

I have heard a lot of attacks on what the Government are trying to do, and a lot about social media; now we are hearing about children. I have some sympathy with the Dubs scheme—indeed, the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), and I previously tabled amendments in support of it—but I have not seen, in any of the amendments tabled, or heard of, in any of our debates, a single practical measure that Labour would take to deter adults from paying the people traffickers and taking to boats for these dangerous journeys. What is Labour’s plan for real solutions to a serious problem? I have not heard a single solution yet.

[Bambos Charalambous]

If the hon. Member will allow me to continue, he may be interested in what I will say on new clause 49, which addresses his point. I will try to make some progress; I was told off in the last debate for taking too long because I allowed interventions.

Labour believes that it is time that the Government showed global leadership, instead of shirking their commitments enshrined in the refugee convention. We urge them to support new clause 48, which proposes the reintroduction of Dubs.

In new clause 49, the Opposition ask the Government to produce a negotiating mandate that sets out proposed reciprocal arrangements with the EU for safe returns and safe legal routes. Such arrangements were covered by the Dublin III agreement, which has now ended. It is ridiculous that the Government are resorting to dangerous tactics such as push-backs in the channel, when we used to have civilised reciprocal agreements with our geographical neighbours.

[Alex Sobel]

I thank the shadow Minister for giving way, because the Minister would not. The Government seem to think that the Bill will end small boats crossing the channel, but as he said, the ending of Dublin III has increased the number of small boats making that crossing. Does he not think that, because of the Bill, we will be back here debating this in three years, when there will be even more small boats and even more children and adults dying in the channel?

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[Bambos Charalambous]

My hon. Friend makes an excellent point. The Bill will fail if there are not reciprocal arrangements, and that is deeply worrying. Not having those arrangements will encourage more dangerous crossings.

[Mr Bone]

Will the hon. Member give way on that point?

[Bambos Charalambous]

I will, but then I must make progress.

[Mr Bone]

The hon. Member is making his speech in a quiet and reasonable way, but does he not think the problem is that the French are refusing to allow returns? It is not this country; it is the French.

[Bambos Charalambous]

I agree with the hon. Member, but that is directly because we no longer have reciprocal arrangements. That is the crux of the problem with the Bill. We need more reciprocal arrangements with our international partners to allow other measures to be put in place.

[Matt Rodda (Reading East) (Lab)]

Will my hon. Friend give way?

[Bambos Charalambous]

I will make progress.

The agreements we had previously, such as Dublin III, gave people who were eligible a safe route here, and they also allowed us to send people to other safe countries when that was appropriate. It is well known that family reunion leads to better outcomes in terms of the ability of people to integrate. It is also well known that it is only with international co-operation that we can expect other countries to accept the safe return of individuals, where appropriate. We believe that new clause 49 is a sensible and proportionate measure to tackle the issues we face.

This brings me on to new clause 51, which does two things. First, it places the Afghan citizens resettlement scheme on a statutory footing to make sure that it is fully implemented. Secondly, it calls on the Government to draw up the scheme in a way that helps prevent people from being exploited by people traffickers and smugglers. The Government have accepted that safe and legal routes are important as an alternative to dangerous routes run by criminal gangs, but they have not implemented or designed safe and legal routes. That is why we propose that the resettlement scheme be designed in a way that allows those fleeing persecution in Afghanistan who have family in the UK to apply to be included in the resettlement scheme. There would be a specified opportunity for family members to apply under the scheme. The Government have already consulted on ensuring that these family members do not end up being exploited by criminal gangs, and have promised them a route to reuniting with their family members, so we see no reason why the new clause should be controversial, or why the Government would not open the scheme and allow family reunion within it.

It has been absolutely shocking to hear at first hand the stories of desperate people who are eligible to come here from Afghanistan being effectively abandoned. I have had Chevening scholars contact my constituency office who have been left without any support at all, and without any prospect of a safe route from that country. Other MPs have told me about people who have worked closely with the British but have also been left vulnerable—interpreters, women who worked as lawyers, and many others whose lives are under threat from the Taliban. Again, if the Government are serious about drawing people away from the people smugglers and offering them safe routes, then they need to get a grip of this situation.

[Matt Rodda]

I am grateful to my hon. Friend for making that point. Does he agree that at the core of this is the poor quality of our relations with some of our nearest neighbours, and, indeed, our falling standing in the international community, which I am afraid—[Interruption.] If I may finish, I am afraid that that is a result of Government policy over the Brexit deal and a number of other matters. Does he agree with me on that point?

[Bambos Charalambous]

As I have previously said, international co-operation is at the root of dealing with the problems that this Bill will purportedly address.

[Shailesh Vara (North West Cambridgeshire) (Con)]

Will the hon. Gentleman give way?

[Bambos Charalambous]

I will give way one last time, but then I really must make progress.

[Shailesh Vara]

I am grateful to the hon. Gentleman. As a point of clarification, the comment was made in the previous intervention that Brexit was a Government policy. Does he agree that the Government were fulfilling the mandate of the British people at a referendum?

[Bambos Charalambous]

We have already had that debate—in the last Parliament. As is proposed in the Dublin III amendment—new clause 49—our safe and legal routes need to be replaced now that we have left the European Union. That is absolutely integral to making sure that we have the measures in place to deal with the problems we face.

Ministers have talked a lot about the Afghan citizens resettlement scheme, but where are the results? We have been waiting since August for the scheme to be implemented, and it still has not been. People are dying. They do not have four years to wait. It is time for action, not words.

We should be looking after people who put their lives on the line by loyally serving the nation. It is nothing short of outrageous that visas for foreigners who served in the UK armed forces cost £2,389. In 2020, there were 5,110 Commonwealth citizens serving in the armed forces. Each year, about 500 of them choose to leave, and those who choose to stay in the UK are compelled to pay extortionate visa fees. A Government consultation has, as we know, proposed scrapping the fees for those who have completed 12 years’ service in the armed forces. Labour has campaigned long and hard for that change, but we believe the proposed qualification period is far too long, and we call on the Government to right that wrong and change the period of qualification. I am grateful to the two largest veterans charities, the Royal British Legion and Help for Heroes, for their campaigning work on this issue. They are clear that they believe the current situation is gravely unfair, and it is time the Government started honouring their promise to the armed forces.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I have met many Commonwealth soldiers in my constituency, including Fijians who have worked closely alongside Welsh regiments, and others from Commonwealth backgrounds who have come to our armed forces—indeed, I think they make up something like 11% or 12% of current Army recruitment. I have heard horrifying stories about how they have been treated in relation to visas and settlement, as well as with healthcare costs. It is completely wrong for that to be happening, and for them to be treated in such a way when they have served our country so bravely.

[Bambos Charalambous]

My hon. Friend is absolutely right. To ask servicemen and women to pay for the privilege of living in the country that they fought for and were prepared to defend is completely unreasonable. The current situation is embarrassing, and we ask the Government to do the right thing and waive fees for veterans seeking citizenship.

[John Redwood]

Will the hon. Gentleman give way?

[Bambos Charalambous]

I will give way one last time, but I must make progress.

[John Redwood]

The hon. Gentleman is generous. Does Labour think there should be any limit on the number of people we invite in each year as migrants, and if so, what should that limit be?

[Bambos Charalambous]

As I have made clear, I am speaking about Commonwealth veterans who are fighting for us, defending our country. We very much support waiving the fees for them to become British citizens.

I will move on. Clause 11 is a particularly pernicious part of the Bill. As well as creating two tiers of refugees, it seeks to criminalise some refugees according to how they arrive in the UK. Criminalising people who are seeking our protection is a clear breach of the refugee convention and our obligations under international law. Let us consider the implications of that. Under clause 11, it is possible that an Afghan national facing persecution from the Taliban, Uyghur Muslims facing persecution in China, or a Syrian national facing persecution in Syria, could be criminalised. They could be criminalised merely for the way they arrive in the UK, yet their claim for asylum due to the persecution they faced has not lessened because of their means of arriving in the UK—of course it hasn’t. While the Government do little to secure safe and legal routes for persecuted groups, it is cruel to criminalise people who are escaping torture or death. Moreover, no evidence has ever been produced to suggest that such a measure will deter those irregular journeys, as the Government claim.

As a report by the Joint Committee on Human Rights pointed out, the Bill is littered with measures that are simply incompatible with human rights law and the UK’s obligations under international treaties. That is one reason why Labour believes that amendments 105 and 98 are necessary. By removing the term “for gain”, the Government are creating a situation where anyone in the channel who helps people in distress, as is their duty under maritime law, could be criminalised. That is clearly wrong, both morally and legally, and we strongly urge the Government to accept amendment 105. It is equally the case, as stated in amendment 98, that there should be safeguards against endangering life at sea. As the Joint Committee on Human Rights recommended, it must be made certain that maritime enforcement powers cannot be used in a manner that would endanger lives.

This is a bad Bill, and we hope that the Government will take heed of the amendments we support. Only through international co-operation, safe and legal routes, and targeted measures against criminal gangs can we, with our international partners, improve the current situation.

[Johnny Mercer (Plymouth, Moor View) (Con)]

I will not take too long in my remarks, Madam Deputy Speaker, but I wish to make a couple of clear points about foreign and Commonwealth service personnel who serve in our armed forces and then have to pay to live in this country afterwards, and to use public services. There has been wide, broad, and deep support for action on this issue over the past few days, including from people who really do not like to get involved in politics. Whether it is the Royal British Legion, Help for Heroes and the veteran community or beyond, in our communities up and down the country, people recognise the morality behind the issue of charging those who serve to live in this country.

I speak to all sorts of people in the veterans community. Last night, I had a conversation with Prince Harry about this. He has contributed hugely to the veterans debate and I wanted his view. He said to me, “It’s not only morally right but would mean so much to those who have given so much.” That is not a political intervention; it demonstrates the moral purpose of this measure. It is an almost “effortless change”, as he said, for this Government to make, for us to finally see through what we have said to these people for so long. We owe it to them. They are our brothers and sisters. They have served with us over many years. I recognise that there are things going around today saying how we should not be doing this in primary legislation, for lots of reasons. I will come to that in a minute, but this has been going on for 20 years for these people, and at some point we have to grasp the nettle and make sure that we look after them.

The money is meaningless. I will address the figures that have been put out by the Government and others. On Monday, I was told that the Government could not do this because it would cost £160 million. That is garbage. Do not take my word for it; look at the Royal British Legion, which has campaigned on this issue for many years. I pay tribute to Members across the House, including those on the Conservative side, who have been Defence Ministers and have tried to deal with this problem but have hit the same issues we are hitting at the moment.

On that £160 million, the Royal British Legion has studied the figures. If someone who served in the military in this country applies for a visa, all their dependants use a special code. Someone can only use that code if they have served or they are a dependant, so we can pull the data between 2016 and 2020. It has never cost more than £1 million a year, so the majority of those fees are profit—a charge on our service personnel to stay here.

Let me address the consultation issue and the 12-year period. I do not want to air dirty linen in public, but I was there when that 12-year figure was decided on. It was done on a visit. It was plucked out of the air. There is no evidence whatsoever to back it up. There is evidence in the Department that someone from a foreign or Commonwealth country who serves in the military is likely to serve between six and seven years. Twelve years is well outside that. It is well beyond what our peer nations do, it is well beyond what our allies do, and it is incredibly unkind to these individuals who have worked and served for so long.

I have given the moral case and the financial case, but ultimately this decision comes down to Conservative Members. The whole country is aligned on this issue, and it has been for a very long time. All the political parties will support new clause 52 except the Conservatives, and we are the ones who made a promise that we would do something about this. That is unconscionable. Colleagues can of course take the calls from the Defence Secretary and others, with these figures that I have demonstrated are not true, or they can think about what they are here to do.

I am here to represent the Fijian family in Plymouth who left the military after nine years having fought in Afghanistan and Iraq; they may have been members of the United Kingdom Special Forces group—a relentless operational tempo. Finally they leave, their kids go to school and they save up for a house, but they have to pay a £10,000 bill to stay in this country that they fought for over so many years. Can colleagues really look that family in the eye and say, “No, you have to pay; we have to make a profit out of you for you to stay in this country, despite the fact that you were prepared to commit so much to the privileges and the freedoms we enjoy”?

Finally, I say to colleagues that the tide changes very quickly in politics. This issue has been around for 20 years now, and the tide changes. I know what it is like when people put the screws on and ask you to vote a certain way, but the tide changes. All we can do is what we think is right on the day. The moral and financial case for this measure has never been clearer, and I urge colleagues to consider it carefully before they cast their vote.

Oral Answers to Questions

Bambos Charalambous Excerpts

Monday 22nd November 2021 Commons Chamber

[Victoria Atkins]

The hon. Lady has articulated the real dangers that many are facing in Afghanistan; I think we can all agree on that. The reality is, however, that the ever-changing security situation in Afghanistan means that we still have no UK consular presence or Army presence there. That is something that we and other countries around the world that are trying to help Afghan people are having to grapple with. We are working at pace and we want to set the scheme up as an example of a safe and legal route under the Government’s new plan for immigration.

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

Since mid-August, Germany, a country that has not had the military and overall engagement of the UK in Afghanistan, has flown more than 6,000 Afghans to Germany and provided them with protected status under its humanitarian admission programme. Can the Minister tell me what conversations she has had with counterparts in the European countries running such schemes to help to enable the quicker opening of the Afghan citizens resettlement scheme? There is a real risk that the people whom the scheme is intended to help will die before it becomes operational.

Nationality and Borders Bill (Sixteenth sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Holly Lynch]

I live in hope that anyone who can run a marathon for Justice and Care would understand the value of the independent child trafficking guardians and the victim navigators, and with that in mind, I very much look forward to the Minister’s further commitments in writing. If we are not satisfied, we will come back to this issue on Report, but I trust that he will do everything he can on those two fronts. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 46

Permission to work for people seeking asylum

“(1) The Immigration Act 1971 is amended as follows.

(2) After section 3(2) (general provisions for regulation and control) insert—

‘(2A) In making rules under subsection (2), the Secretary of State must make provision for persons seeking asylum, within the meaning of the rules, and their adult dependants to have the right to apply to the Secretary of State for permission to take up employment, including self-employment and voluntary work.

(2B) Permission to work for persons seeking asylum and their adult dependants must be granted if—

(a) a decision has not been taken on the person’s asylum application within six months of the date of that application, or

(b) a person makes a further application which raises asylum grounds and a decision on that new application, or a decision on whether to treat such further asylum grounds as a new application, has not been taken within six months of the date on which the further application was made.

(2C) Permission for a person seeking asylum and their adult dependants to take up employment shall be on terms no less favourable than the terms granted to a person recognised as a refugee.’”—(Bambos Charalambous.)

This new clause amends the Immigration Act 1971 to allow people seeking asylum to be granted permission to work after 6 months.

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

I will try to be brief in the interests of time. I thank the Lift the Ban campaign for its sterling work on why this new clause is so necessary and why it would be so beneficial. Current immigration rules dictate that asylum seekers can apply for permission to work only if they have been waiting for a decision for over 12 months and only for jobs that are on the Government’s highly restrictive shortage occupation list, which includes professions such as classical ballet dancer and geophysicist. That has not always been the case. Until 2002, people were able to apply for permission to work if they had been waiting for a decision for more than six months. Only in 2010 was the right to work restricted to jobs on the shortage occupation list.

Today, 76% of people waiting for a decision on their asylum claim have been waiting for more than six months, according to the Government’s latest immigration statistics. During the long waits for claims to be processed, people seeking asylum are unable safely to protect themselves and provide for their families. They are forced to depend on the pitifully low asylum support payments of £5.66 a day, and people must often choose between essential items of food, medicine and cleaning products while being prohibited from using their skills and experience.

Work provides a route out of poverty, and there would be a big economic benefit from lifting the ban. The Lift the Ban coalition has calculated that, if 50% of those currently waiting more than six months for a decision on their claim found work, the net economic benefit from increased tax and national insurance contributions and from lower asylum support payments would be £178 million per year. Lifting the ban also has widespread business backing. In 2019, the Lift the Ban coalition polled 1,000 businesses for their views on whether people seeking asylum should have the right to work, and 67% of the businesses polled agreed.

In addition, lifting the ban would bring the UK into line with policy in all other comparable countries. Lifting the ban also makes sense in the covid-19 pandemic or post-pandemic context in which we find ourselves. The skills and desire to work possessed by many stuck in the asylum system could have been invaluable during the recent covid-19 crisis. Very importantly, lifting the ban would support integration. It stands to reason that early access to employment increases the chances of smooth economic and social integration by allowing people to improve their English, acquire new skills, and make new friends and social contacts in the wider community. Crucially, it enables them to be self-sufficient. The policy is also popular with the public. According to Lift the Ban coalition’s research conducted in 2018, 71% of the public support lifting the ban.

[Holly Lynch]

My hon. Friend is making a powerful speech. I intended to speak in full in favour of new clause 46, but I will just make an intervention. On that 71% figure, he will be aware that Lift the Ban conducted research in every constituency across the country. Bearing in mind that 73% of the people of Eastleigh, 72% of the people of Calder Valley and 66% of the people in the constituency of the hon. Member for Stoke-on-Trent North support ending the ban on the right to work, does my hon. Friend share my hope that the hon. Members for those areas will reflect on the public’s support for new clause 46?

[Bambos Charalambous]

My hon. Friend makes an excellent point and I hope beyond hope that hon. Members will support our new clause.

In December 2018, the then Home Secretary stated that a Home Office review of the policy would be taking place. Subsequent contributions in 2019 from the Prime Minister and Home Office Ministers confirmed that the review would continue under the new Government, but to date no detail has been provided regarding the content or methodology of that review. The Government have appeared divided in their own ranks on the issue. In recent months, senior Cabinet Ministers have expressed disquiet about the Government’s position. Surely, it is therefore time that the Government listen to voices from across the political spectrum on this issue and do the right thing by adopting our clause on lifting the ban on work for people seeking asylum.

[Tom Pursglove]

I should start by noting that, as hon. Members know, the Government’s current policy does allow asylum seekers to work in the UK if their claim has been outstanding for 12 months, where the delay was caused through no fault of their own. Those permitted to work are restricted to jobs on the shortage occupation list, which is based on expert advice from the independent Migration Advisory Committee.

I should like to set out the rationale for that policy position. The policy is designed to protect the resident labour market by prioritising access to employment for British citizens and others who are lawfully resident, including those granted refugee status, who are given full access to the labour market. That is in line with wider changes we have made through the points-based immigration system. We consider it crucial to distinguish between those who need protection and those seeking to come here to work, who can apply for a work visa under the immigration rules. Our wider immigration policy would be undermined if individuals could bypass the work visa rules by lodging unfounded asylum claims in the UK.

[Tom Pursglove]

I have been very generous throughout the duration of the Committee, but I am afraid I need to make some progress at this point.

It is also the case that unrestricted access to employment opportunities may act as an incentive for more migrants to choose to come here illegally, rather than claim asylum in the first safe country they reach. While pull factors are complex, we cannot ignore that access to the UK labour market is among the reasons that an unprecedented number of people are taking extremely dangerous journeys by small boat to the UK. I trust that hon. Members would agree with me that the UK cannot have a policy that raises those risks, and that we must do everything in our power to put a stop to those journeys.

Relaxing our asylum seeker right-to-work policy is not the right approach in this respect. Indeed, in an article earlier this month, the French newspaper Le Figaro noted the perspective in France that the “economic attractiveness” of the UK is a reason migrants attempt to cross the channel in small boats. In addition, removing restrictions on work for asylum seekers could increase the number of unfounded claims for asylum, reducing our capacity to take decisions quickly and support genuine refugees.

I would like to take this opportunity to make it clear that I do acknowledge the concerns of hon. Members. The Government are committed to ensuring that asylum claims are considered without unnecessary delay to ensure that individuals who need protection are granted asylum as soon as possible and can start to integrate and rebuild their lives. It is important to note that those granted asylum are given immediate and unrestricted access to the labour market.

I absolutely agree with hon. Members that asylum seekers should be allowed to volunteer. That is why we strongly encourage all asylum seekers to consider volunteering, so long as it does not amount to unpaid work. Volunteering provides a valuable contribution to their local community and may help them to integrate into society if they ultimately qualify for protection.

We have been clear that asylum seekers who wish to come to the UK must do so through safe and legal routes. Where reasons for coming to the UK include family or economic considerations, applications should be made via the relevant route: either the new points-based immigration system or the refugee family reunion rules. We absolutely must discourage those risking their lives and coming here illegally.

The Nationality and Borders Bill will deliver the most comprehensive reform in decades to fix the broken asylum and illegal migration system, and our asylum seeker right-to-work policy must uphold that wider approach. There is, of course, a review of the 2018 report currently under way and I reassure hon. Members that the findings of the updated recent report will be built into this. For all those reasons, I invite the hon. Members for Enfield, Southgate and for Halifax to withdraw the new clause.

[Bambos Charalambous]

I am not convinced by the Minister’s response, so I will be pushing this to a vote. Hopefully, we will be joined by other Members across the Committee.

Question put,

 That the clause be read a Second time.

--- Later in debate ---

[Stuart C. McDonald]

First, that was not a fair interpretation of the new clause: it was certainly not advocating for an unlimited number of people to have access to that route. Nevertheless, it is surprising that we are expected to be encouraged about family reunion at a time when this very Bill is proposing to strip the overwhelming majority of asylum seekers and refugees of those family reunion rights. At the end of the day, the issue is one we will have to revisit on Report. In the meantime, I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.

New Clause 48

Six month time limit for determining asylum applications

“(1) The Secretary of State must make regulations providing for—

(a) a six month time limit for determining applications for asylum; and

(b) an officer of Director level or above to be required to write to the Home Secretary a letter of explanation on a quarterly basis in the event of any failure to meet the six month time limit.

(2) The Secretary of State must report to Parliament any failure to meet the six month time limit.”—(Bambos Charalambous.)

Brought up, and read the First time.

[Bambos Charalambous]

I beg to move, That the clause be read a Second time.

This new clause could be a silver bullet to solve a lot of the ills in the immigration and asylum system. We believe that, were it to be adopted, it would have many beneficial social and financial effects. It would obviate the need for some of the other clauses we have proposed, such as lifting the ban on working. The new clause would undo a host of negative consequences that arise because of the current endemic delays in the asylum system, which are creating huge social and financial costs.

During the course of this Committee, we have heard testimony from people trapped inside the system for years. We have heard about the toll on mental health and the re-traumatising of people who have fled abuse and torture. We have heard about the way in which being trapped in limbo prevents integration and how being banned from working enforces poverty. None of these negative effects would exist if our six-month time limit for processing cases were adopted. Furthermore, costs to the taxpayer, such as those currently spent on long-term accommodation and subsistence benefits, would all be hugely reduced.

Let us not be under any illusion: the current asylum system is broken. According to the House of Commons Library, as of June 2021 the total “work in progress” asylum case load consisted of 125,000 cases—57,000 of those were awaiting an initial decision at the end of 2020.

[Jonathan Gullis]

I was in Dover yesterday, where I spoke to people from Border Force about the situation. Does the hon. Gentleman agree with them, and with me, that one big issue putting pressure on the system is that tens of thousands of illegal economic migrants are crossing the English channel right now? That is leading to our having to speed up and process people as quickly as possible, while not having the facilities available in detention centres. We are therefore having to use hotels, which is taking up a huge amount of taxpayers’ money. That is where the real strain is. This Bill, which Border Force backs, will go a long way towards helping, as we are going to a six-month process with a one-time appeal, rather than multiple appeals, which are currently being exploited by certain lawyers.

[Bambos Charalambous]

There is so much to respond to in that. I question the hon. Gentleman’s facts first of all, but clearly we are talking about the situation as it is now, which has been built up over the past decade, and not as he would like it to be. In any event, I disagree about what this Bill does. It does not solve the problem; it keeps people here for longer.

As I was saying, what is masked by these numbers are the hundreds of people who have waited nearly 10 years or more for a decision on their asylum claims, left in limbo while they wait for an answer. In August, a freedom of information request from The Independent newspaper revealed that there were more than 1,200 asylum seekers in the system who had been waiting more than five years for a decision, with 399 people who had been waiting more than a decade. Separate figures obtained by the Refugee Council through an FOI request earlier this year revealed that the number of applicants waiting for more than a year for an initial decision, not including appeals, increased almost tenfold between 2010 and 2020, from 3,588 to 33,016. More than 250 people had been waiting for five years or more for an initial decision on their case, with dozens of children among them. As of December 2020, 36,725 asylum seekers had been waiting more than a year for a decision.

Those kinds of figures just smack of a broken system. Having tens of thousands of people waiting for more than a year for an initial decision is just totally unacceptable. I am sure that most MPs can think of asylum cases they have been dealing with that have stretched on and on, sometimes for years. I can cite the case of a constituent—I shall call them F—who came to the UK from Afghanistan as a child and applied for asylum in August 2013. It took seven and a half years, and my involvement as his MP, for the matter to be resolved in February this year. It really should not take an MP’s involvement to reach such a conclusion.

The human cost to people’s mental health and the cost to the taxpayer of these endemic delays in the system is high. We know that people in the asylum system become increasingly mentally unwell as the years of uncertainty, trauma and demonisation erode their mental and physical health. The Refugee Council reported earlier this year that this has led to an increase in the numbers of individuals self-harming and reporting suicidal thoughts. The Children’s Society report “Distress Signals” also outlined serious concerns about the damage done to children’s mental health in those conditions— this is damage done at a formative age that will last a lifetime.

Beyond the human cost of these delays is the financial cost. The backlog adds considerably to the overall cost of the asylum process. The Refugee Council has calculated that for every month of delay the additional cost to the Home Office per person is at least £730.41, equating to £8,765 per year. The delays make absolutely no financial sense. Not only that, but on the Home Office’s own figures more people are being employed but they are processing fewer cases. Paying more for less productivity is not acceptable. If this was a business, it would go bust.

A commitment to a six-month target as set out in the new clause would therefore save a huge amount of money to the Treasury and taxpayers, improve the mental health of those caught in the system, and help with integration.

[Tom Pursglove]

I have been clear throughout Committee proceedings that the Government are committed to overhauling the current asylum system, which is obviously broken and in critical need of reform. The number of non-straightforward cases awaiting a decision has grown rapidly, meaning that in October 2018 it became clear to us that the service standard of six months from the date of claim no longer best served those who used our services. For those reasons, former Ministers agreed that we should move away from the service standard.

Although I cannot accept the new clause, as we consider it too restrictive, Members will have detected from what I have said throughout the proceedings that we want to see the faster processing of cases. I entirely recognise the shadow Minister’s point on the financial costs of delay, and the impact on individuals of delay. That is why I and my ministerial colleagues want cases to be dealt with more speedily. That is, of course, the right objective to be working towards. We are working to reintroduce a service standard that will align with changes brought about by the new plan for immigration. I encourage the shadow Minister to withdraw the new clause.

[Bambos Charalambous]

I will push the clause to a vote; we are not convinced by the Minister’s response.

Question put, That the clause be read a Second time.

--- Later in debate ---

Brought up, and read the First time.

[Bambos Charalambous]

I beg to move, That the clause be read a Second time.

Through new clause 49, we hope to shed light on some of the murkiness that has existed in the Home Office in relation to agreements reached with agencies and other Governments to prevent unlawful border crossings and dangerous journeys. The new clause would require the Secretary of State to disclose the contents of any agreements with any international Governments or agencies reached in order to prevent unlawful border crossings, and for this information to be laid before Parliament within three months of any such agreement being entered into. This would mean that, for example, information pertaining to the UK-French agreement to tackle dangerous crossings in the English channel in July could be properly understood and scrutinised, including the use of £54 million of taxpayers’ money.

Information about that agreement and its impact has been limited, and although information has been limited, the confusion has been clear for all to see. There have been conflicting briefings between the British and French authorities regarding the use of £54 million of British taxpayers’ money. There have been reports, for example, that the UK is threatening to withhold the money. The Home Secretary appeared before the Lords Justice and Home Affairs Committee last week and this question was asked. The Home Secretary stated that the agreement is “based on results”, and includes preventing people getting to beaches, intelligence sharing, policing operations around the Belgian-French border, and technology.

For more than two years, the Home Secretary has repeatedly committed to stopping channel crossings in small boats by making the route unviable, yet unprecedented numbers of people have made the journey in this period, including a staggering 20,000 this year alone. Clearly, if we are working with the French authorities to disrupt people smuggling gangs and prevent dangerous crossings, it does not seem to be working very well, and parliamentary scrutiny of how taxpayers’ money is being spent is important if we are to learn more about the Home Secretary’s plans and why they have once again failed to deliver. For example, has anything been paid to France? Is the agreement for payment by results? If so, what are the metrics? How can we scrutinise whether this is value for money, or whether that money could be better spent elsewhere? It seems astonishing that the Home Secretary can just be given £54 million of public money to spend, but we do not know what on. There must be some accountability for that to Parliament.

--- Later in debate ---

[Tom Pursglove]

What is being sought is further detail on the relationship that we have with France in particular to tackle these dangerous channel crossings. As I say, we must put nothing in the public domain that risks undermining that constructive collaboration through the arrangement that we have with the French, which is vital to stopping these dangerous crossings and protecting lives at sea. To do so would also result in a betrayal of trust with our international partners, who own some of this information, and could prevent us from reaching future agreements with international partners, impacting our ability to prevent illegal migration and small boat crossings. That is why the Government feel unable to support the new clause and I encourage the hon. Member for Enfield, Southgate to withdraw it.

[Bambos Charalambous]

There is not enough scrutiny, so we wish to press the new clause to a vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

Brought up, and read the First time.

[Bambos Charalambous]

I beg to move, That the clause be read a Second time.

The new clause would shorten the route to settlement from 10 years to five years for children and young people who have grown up in the UK and know no other home. This issue has a big impact on a relatively small number of people. These are bright young people who want to contribute to society but face a long, uncertain and financially demanding journey before their futures in the country they call home are secure.

I pay tribute to the brilliant charity We Belong, which is led by young people who themselves have been impacted by the unforgiving immigration rules. The Greater London Authority estimates that more than 330,000 children and young people who came to the UK as children have precarious immigration status. The young people who face this predicament are mainly Commonwealth citizens who are bright and want to contribute, but they have to wait 10 years before they reach settlement, at a cost of £12,771, through applications for leave to remain every 30 months.

Costs for leave to remain applications have risen astronomically in recent years, increasing by 331% since 2014. Often, more than one family member will be going through the process at the same time, so there are multiple fees to pay. That means that in many families, for at least a decade, earnings that could otherwise go towards securing a decent home or be invested in a child’s education instead have to be funnelled out of the family and paid to the Home Office. Before we even start to consider legal fees, we are asking families and young people to save more than £1,200 per year per person just to remain in the UK, when 30% of people in the UK have less than £1,000 in total savings and the average low-income family has just £95 in savings.

Each time they have to apply for leave, we raise the bar for these young people, asking far more of them than we ever would of those fortunate enough to be born with a British passport. Each time, they meet these almost impossible hurdles, often working several jobs to keep themselves and their families on this long and narrow 10-year path to security. These are clearly exceptional individuals, but it is not fair that we keep asking this of them.

For Arkam, who came to the UK aged 10, the 10-year route has meant being stuck in unsuitable accommodation. His family has lived in a one-bedroom house for 10 years because, he says

“the rent is so low and it has to be low because the Home Office fees are so high and our quality of life was non-existent.”

For Andrew, it has been the trigger for a string of evictions. His family were left without enough money to pay their rent and lost their home several times.

My own constituent, Tashi, arrived in the UK when she was seven and has since lawfully resided in the UK for almost two decades. When Tashi was just 10 years old, she was held unlawfully in immigration detention, and that experience has traumatised her ever since. Each limited leave renewal ignites the uncertainty and precarious nature of her status. If she makes a mistake on an application form, she could be back in detention and face deportation, even though she knows no other home. Living with limited leave to remain means decades of living with unrelenting uncertainty.

The more times that young people go through the LLR application process, the more they have to lose. If applicants are unable to afford the fee or fail to renew on time, they will have to begin the 10-year process from the very beginning.

That happened to Natasha, who came to the UK from Nigeria at the age of seven. Natasha was granted limited leave to remain when she was 18. When it came to renewing her visa, her family could not afford to renew due to the high fees and Natasha fell out of legal status. Unable to work, Natasha became homeless. Living in the shadows of society, it was only when she was 26 that she was able to raise enough money from family and friends to apply for LLR again and restart the 10-year route. She must renew this status every 30 months over a 10-year period. She will be 36 before she can apply for settlement and 37 years old when she can finally apply for citizenship.

How is this fair? For all this Government’s rhetoric about the importance of social integration, they continue to preside over an immigration system that isolates and stigmatises young migrants who have no other home but the UK. As highlighted by We Belong, many young people will undoubtedly be driven into poverty or lose their lawful status as a result of these high costs.

Speaking in July 2019, during his campaign to become leader of the Conservative Party, the Prime Minister said:

“I want everybody who comes here and makes their lives here to be, and to feel, British—that’s the most important thing”.

Across this Committee, I think we all agree with that sentiment. We should be proud of our country and encourage our residents to seek British citizenship, so why are we putting every hurdle in the way of ambitious young people who are already integrated into the fabric of our society? We Belong’s experience with young people on the 10-year route reveals how the demands of this process can reverse years, even decades, of integration.

The unforgiving 10-year route sows division and fear among young people, damages mental health, limits life chances and condemns even the hardest-working families to at least a decade of intense financial strain. The instability and onerous demands created by the limited leave to remain route serve nobody, and certainly not employers, educators or communities.

The financial and other constraints imposed by the 10-year process mean that many young migrants reaching early adulthood are denied the opportunity to realise their ambitions, causing prolonged financial and emotional stress. Ten years of multiple applications and multiple fees only increase the likelihood that young people will inadvertently fall out of status and have their lives ruined as a result. A five-year LLR path to settlement would be fairer and give them parity with other migrant groups, which is what this new clause aims to do.

We welcome the Home Office’s recent published guidance to case officers, which opens up a narrow discretionary five-year route for some young people. It shows that the Home Office acknowledges that there is a problem here. However the guidance is limited to those between 18 and 25, among other limitations. Many of the people in the case studies I mentioned, and many others who came to the UK as young children, are now over the age limit and will not be able to benefit from this scheme. Can the Minister tell me when the Home Office plans to rectify this anomaly?

[Tom Pursglove]

I hope I might be able to satisfy the Committee by saying that both this proposed new clause and the related proposed new clause 45 are commendable, but we are already doing what they seek. We will consolidate our actions in the immigration rules as part of the simplification of the rules in the next 12 months. Home Office officials have discussed the proposed changes with the We Belong group of young migrants, who have indicated that they are supportive of the way the changes will be implemented. With that, I hope the hon. Gentleman will feel able to withdraw this proposed new clause.

[Bambos Charalambous]

I very much welcome the Minister’s comments, and I look forward to having more information. Based on what he has told me, I am willing to withdraw the new clause, and I look forward to progress being made in this area. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 51

Safety plan for child victims of human trafficking

“(1) The Children Act 1989 is amended as follows.

(2) In section 22, after subsection (3C) insert—

“(3D) In respect of a suspected child victim of trafficking who is looked after by the local authority, the duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of the child shall include in particular a duty to consider and take all reasonable steps to ensure that arrangements of accommodation and support to meet the child’s needs and takes account of and addresses the child’s safety with a view to preventing the risk of re-trafficking.”

(3) In section 22, after subsection (4)(d) insert—

“(e) independent guardians (within the meaning of Section 48 of the Modern Slavery Act 2015) as a relevant person who the local authority shall, so far as is reasonably practicable, consult with before making any decision with respect of a child who they are looking after and who is entitled to an independent guardian.”

(4) In section 22C, after subsection (7)(c) insert—

“(d) where accommodation is arranged for a suspected or identified child victim of trafficking, due regard shall be paid to the potential risks of harm and re-trafficking and the child’s safety shall be a primary consideration.””—(Holly Lynch.)

This new clause seeks to provide child victims with a safety plan to prevent retrafficking.

Brought up, and read the First time.

--- Later in debate ---

[Holly Lynch]

I think I followed what the Minister said and that he heard my concerns about some of the gaps in the provision. I will look to that statutory guidance for further detail. I will not press the new clause, so I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 52

Effect of British National (Overseas) visas

‘(1) Within six months of this Act being passed, the Secretary of State must commission and lay before Parliament an independent assessment of the effect of British National (Overseas) visas and the Government’s implementation.

(2) The Secretary of State must appoint an Independent Chair to conduct the assessment.

(3) The assessment must consider such matters as are deemed appropriate by the said Independent Chair.’—(Bambos Charalambous.)

This new clause would require the Government to publish an independent assessment of the effect of the British National (Overseas) visa scheme.

Brought up, and read the First time.

[Bambos Charalambous]

I beg to move, That the clause be read a Second time.

We believe that the new clause is needed because there is clear evidence that the British national overseas scheme may not end up working as it was intended. That is particularly the case for young Hong Kong nationals. As everyone on the Committee knows, the BNO scheme has, in theory, been designed to offer a path to citizenship for Hongkongers. This was particularly designed in the wake of Beijing’s national security law being imposed last year, which has led to Hongkongers facing police brutality and severe repression. Although we in the Opposition therefore very much welcome attempts to support all those facing repression in Hong Kong, we believe that there is a need to examine how the BNO visa scheme is operating in practice and whether it is having the desired effect.

As the Home Affairs Committee pointed out in July, there are reasons for concern about individuals and groups who may be missing out on offers of support. There remain worrying gaps in the offer of support, and loopholes in the way that the BNO scheme may be implemented. That is particularly the case for younger pro-democracy activists in Hong Kong. It is evident that people under the age of 24 cannot benefit from the BNO visa scheme because of how it has been defined. That is because younger people do not hold BNO passports, which were issued in 1997. The BNO scheme requires that applicants hold a BNO passport. Those documents were issued to citizens following the handover of Hong Kong from the UK to China in 1997. Obviously, that means that a lot of people will be excluded from the scheme even if their parents or older siblings would qualify for it.

As a result of that, some people who have fled police brutality are now battling with the sclerotic and inefficient UK asylum system. That is simply because they are arbitrarily excluded from the Home Office settlement route due to their age. It has nothing to do with the validity of their claims, the severity of the oppression that they have experienced or the danger that they face in Hong Kong. All of those would have qualified them for a BNO visa had they been lucky enough to have been born a little earlier.

As we know, there are huge problems with the UK asylum system. We know that the average waiting time for an initial decision on an asylum case in the UK is between one and three years. Last week, some young Hongkongers told The Independent newspaper that they have been waiting for a year or more for a decision. Of course, the current inhumane rules of the Government’s hostile environment also mean that these same young people are banned from working, and often prevented from studying, while waiting for a decision. As Johnny Patterson, policy director of Hong Kong Watch, said, these Hongkongers in the asylum system are subjected to an “agonising wait”. Furthermore, the ban on them being able to work is undermining their chances of integrating in the UK.

The problem is only going to get worse unless it is tackled head on. Home Office figures show that there were 124 asylum claims from Hong Kong nationals in the year to June 2021, compared with 21 the year before and just nine in the 12 months to June 2019. It is even more concerning that 14 of those claims in the past year were unaccompanied minors, marking the first time on record that the UK has received asylum claims from children from Hong Kong.

We believe that the BNO visa scheme should be independently assessed to take account of the realities on the ground in Hong Kong. The truth is that it tends to be young people who were at the forefront of demonstrations to defend democracy and who are therefore likely to face the most repression. As well as that, people who are here under the BNO visa scheme have raised a number of concerns, such as their qualifications not being recognised, access to work, formal access to English language classes, and access to housing and banking services because they do not have a credit or renting history. There are also concerns about the lack of co-ordination between Government and local authority services. There are lots of reasons, therefore, why a review is needed.

It may well be the case that older parents wish to remain in Hong Kong while their children need to flee because they are in greater danger. Although the scheme allows applicants to bring relatives, including adult children, with them to the UK, the reality is that many young people will need to flee alone. They cannot rely on the parents coming to the UK who would have made their claim valid under the BNO scheme. We think it would be worth the Government exploring a revision of the scheme so that a child of a BNO Hong Kong citizen could make an application independently of their parents.

If such anomalies remain unaddressed, it will be deeply unfair on young Hongkongers. It is those young people who have often been on the frontline of the pro-democracy protests opposing the Chinese Government’s unlawful power grab. If they remain excluded from the BNO route for reasons entirely beyond their control, they will face an agonising wait in the UK asylum system, which we all know is beset with huge delays.

Given the UK’s deep connection to Hong Kong, should we not be offering a life raft to all Hongkongers who need one? The Opposition believe that the Government should accept independent scrutiny of the BNO scheme, with a view to exploring such steps as allowing children of BNO visa-eligible parents to make independent applications, provided there were evidence of their parents’ status, of course.

--- Later in debate ---

[Tom Pursglove]

The Hong Kong British national overseas route was launched on 31 January 2021, and the route has already been a success. As of 30 June, approximately 64,900 applications to the route have been made by BNO status holders and their family members who have chosen to make the UK their home. An impact assessment was published on 22 October 2020, setting out the projected impacts of the BNO route on the UK. As well as the direct impacts for the Government of operating the route, the impact assessment sets out the expected net benefit to the UK of between £2.4 billion and £2.9 billion over five years.

We believe that a review is not necessary. The policy is generous and barriers have been minimised. As the shadow Minister said, the Home Affairs Committee recently published a report on the route, and we have responded in full. I encourage him to withdraw the new clause.

[Bambos Charalambous]

I will not press new clause 52 to a vote, but I do hope that the Government will keep monitoring the system and provide the protection for young Hongkongers that I outlined. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 53

Electronic monitoring: conditions and use of data

“(1) Schedule 10 to the Immigration Act 2016 is amended as follows.

(2) In paragraph 2, in sub-paragraph (3)(a), leave out ‘must’ and insert ‘may’.

(3) In paragraph 2, in sub-paragraph (3)(b), leave out ‘by virtue of sub-paragraph (5) or (7)’.

(4) In paragraph 2, after sub-paragraph (3) insert—

‘(3A) If immigration bail is granted to a person subject to an electronic monitoring condition, the electronic monitoring condition shall cease to apply on the day six months after the day on which immigration bail was granted to the person, unless sub-paragraph (3B) applies.

(3B) This sub-paragraph applies if the Secretary of State or the First-tier Tribunal (as the case may be), when granting immigration bail to the person, has directed that the electronic monitoring condition shall not cease to apply in accordance with sub-paragraph (3A).

(3C) But the Secretary of State or the First-tier Tribunal (as the case may be) shall not make a direction under sub-paragraph (3B) unless the Secretary of State or the First-tier Tribunal (as the case may be) is satisfied that there are very exceptional circumstances which make the continued application of the electronic monitoring condition necessary in the interests of—

(a) public protection; or

(b) national security.’

(5) In paragraph 2, after sub-paragraph (7) insert—

‘(7A) Sub-paragraph (3)(a) does not apply to a person who is granted immigration bail by the First-tier Tribunal if the Tribunal considers that to impose an electronic monitoring condition on the person would be—

(a) impractical, or

(b) contrary to the person’s Convention rights.

(7B) Where sub-paragraph (7) or (7A) applies, the First-tier Tribunal must not grant immigration bail to the person subject to an electronic monitoring condition.’

(6) In paragraph 4, after sub-paragraph (2) insert—

‘(2A) The Secretary of State must not process any data collected by a device within the meaning of sub-paragraph (2) which relates to the matters in sub-paragraph (1)(a) to (c) except for the purpose of, and to the minimum extent reasonably necessary for, determining whether P has breached a condition of his bail.

(2B) In sub-paragraph (2A), “processing” has the same meaning as in section 3(4) of the Data Protection Act 2018.’”.—(Stuart C. McDonald.)

This new clause would place certain safeguards and restrictions on use of electronic monitoring.

Brought up, and read the First time.

[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

New clause 53 is really just to probe the Government on a new issue that has started to arise this year: the significant increase in the use of the GPS monitoring of certain people on bail for immigration purposes, largely foreign national offenders awaiting deportation. I am not for a moment suggesting that such monitoring does not have its role. It absolutely does; indeed, there would be occasions on which I would be upset with the Home Office if it did not use it. There is a genuine concern, however, about the lack of safeguards and limits on its use, and on how data from GPS tracking is being used. Indeed, even compared to the criminal justice system, it seems that the safeguards and limits are somewhat light touch. Cases have arisen where it seems that use was totally inappropriate.

New clause 53 suggests putting in place some appropriate safeguards and restrictions. It is designed to prompt the Minister, if not today then in due course, to answer certain questions. First and foremost, how will data be used in practice and in what circumstances will it be used in relation to somebody’s article 8 claim? That is an area of controversy, in that the use of tracking goes way beyond the original intention in previous relevant legislation, which was to prevent people from absconding.

Secondly, the criminal justice system imposes strict limits and safeguards on how long electronic monitoring is used for and in what circumstances, with limits on collection, processing, storage and use of data. Why, therefore, are those electronic monitoring safeguards absent in the immigration system?

Thirdly, why have the Government not made the data protection and equality impact assessment for such an intrusive scheme available to the public? Fourthly, what guarantee can the Government give that they will not expand their use of this technology and use it on people who have come to the United Kingdom to seek asylum? Can the Minister give us assurances on that today?

Finally, the Government’s own data suggests that absconding rates are exceptionally low. A recent FOI response found that of people granted bail between February 2020 and March 2021, there were 43 cases of absconding out of 7,000, so what evidence does the Home Office have that this intrusive measure is really necessary on anything other than a very limited scale?

--- Later in debate ---

[Stuart C. McDonald]

I am grateful to the Minister for his answers. He is certainly candid, as he has been throughout Committee proceedings. I am bitterly disappointed about the answer in relation to the remote areas pilot scheme. Those areas are really suffering, not just in terms of labour shortages and the accompanying economic challenges, but even with depopulation.

I will hang on and finish on an optimistic note in that there is a possibility that the Government will commission a review of the salary threshold for family visas. I very much hope that that does happen and they look at how that route operates all together. I cling to that little bit of silver lining. With that, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Schedule 1

Prisoners returning to the UK: Modifications of Criminal Justice Act 2003

‘This is the Schedule to be inserted after Schedule 19A to the Criminal Justice Act 2003—

“Schedule 19B

Prisoners returning to the UK: Modifications of Chapter 6 of Part 12

Modification of dates for referral to the Board

1 Paragraph 2 applies where section 244ZC(2), 244A(2) or 246A(4) (when read with section 260(4A)) would require the Secretary of State to refer a person’s case to the Board on a day falling before the end of the period of 28 days beginning with the day on which the person is returned to custody.

2 The applicable provision is to be read as requiring the Secretary of State to refer the person’s case to the Board at any time up to the end of the period of 28 days beginning with the day on which the person is returned to custody.

3 For the purposes of paragraphs 1 and 2, a person returns to custody when the person, having returned to the United Kingdom, is detained (whether or not in prison) in pursuance of their sentence.

Person removed after Board had directed release but before being released

4 Paragraphs 5 and 6 apply where, before a person’s removal from the United Kingdom—

(a) the Board had directed their release under section 244ZC, 244A or 246A, but

(b) they had not been released on licence.

5 The direction of the Board is to be treated as having no effect.

6 The person is to be treated as if—

(a) they had been recalled under section 254 on the day on which they returned to the United Kingdom, and

(b) they were not suitable for automatic release (see section 255A).

Person removed after referral to the Board but before disposal of the reference

7 Paragraph 8 applies where—

(a) before a person’s removal from prison their case had been referred to the Board under section 244ZB(3), 244ZC(2), 244A(2) or 246A(4), and

(b) the reference lapsed under section 260(4B) because the person was removed from the United Kingdom before the Board had disposed of the reference.

8 Section 244ZC(2), 244A(2) or 246A(4) (as applicable) is to be read as requiring the Secretary of State to refer the person’s case to the Board before the end of the period of 28 days beginning with the day on which the person is returned to custody.

9 For the purposes of paragraph 8, a person returns to custody when the person, having returned to the United Kingdom, is detained (whether or not in prison) in pursuance of their sentence.

Person removed after having been recalled to prison

10 Paragraphs 11 and 12 apply where, at the time of a person’s removal from prison under section 260, the person was in prison following recall under section 254.

11 Any direction of the Board made in relation to the person under section 255C or 256A before their return to the United Kingdom is to be treated as having no effect.

12 The person is to be treated as if—

(a) they had been recalled under section 254 on the day on which they returned to the United Kingdom, and

(b) they were not suitable for automatic release (see section 255A).”’—(Tom Pursglove.)

This new schedule inserts a new Schedule 19B into the Criminal Justice Act 2003 to make modifications of that Act in relation to prisoners who have returned to the UK after their removal from prison. It is introduced by section 261 of that Act, which is amended by NC12.

Brought up, read the First and Second time, and added to the Bill.

New Schedule 3

Working in United Kingdom waters: consequential and related amendments

‘Immigration Act 1971

1 The Immigration Act 1971 is amended as follows.

2 In section 8 (exceptions for seamen etc), after subsection (1) insert—

“(1A) Subsection (1) does not apply in relation to a member of the crew of a ship who is an offshore worker within the meaning of section 11A.”

3 In section 11 (references to entry etc), after subsection (1) insert—

“(1ZA) See also section 11A (additional means by which persons arriving in United Kingdom waters for work can enter the UK).”

4 In section 28 (proceedings for offences)—

(a) before subsection (1) insert—

“(A1) Proceedings for an offence under this Part that is committed in the territorial sea adjacent to the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.”;

(b) in subsection (2A), for “section 25 or 25A” substitute “this Part”.

5 In section 28L (interpretation of Part 3) —

(a) in subsection (1), at the beginning insert “Subject to subsection (1A)”;

(b) after subsection (1) insert—

“(1A) In this Part ‘premises’ also includes any artificial island, installation or structure (including one in the territorial sea adjacent to the United Kingdom).”

6 In section 28M (enforcement powers in relation to ships: England and Wales), in subsection (2)(a)—

(a) for “section” substitute—

“(i) section 24B,”;

(b) for “, and” substitute “, or

(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and”.

7 In section 28N (enforcement powers in relation to ships: Scotland), in subsection (2)(a)—

(a) for “section” substitute—

“(i) section 24B,”;

(b) for “, and” substitute “, or

(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and”.

8 In section 28O (enforcement powers in relation to ships: Northern Ireland), in subsection (2)(a)—

(a) for “section” substitute—

“(i) section 24B,”;

(b) for “, and” substitute “, or

(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and”.

9 (1) Schedule 2 (administrative provision as to control on entry etc) is amended as follows.

(2) In paragraph 2—

(a) in sub-paragraph (1), for the words from “who have” to “United Kingdom)” substitute “within sub-paragraph (1A)”;

(b) after sub-paragraph (1) insert—

“(1A) The persons are—

(a) any person who has arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom);

(b) any person who has arrived in United Kingdom waters by ship or aircraft who the immigration officer has reason to believe is an offshore worker.

(1B) In sub-paragraph (1A), ‘offshore worker’ and ‘United Kingdom waters’ have the same meaning as in section 11A.”

(3) In paragraph 27—

(a) after sub-paragraph (1) insert—

“(1A) Sub-paragraph (1) also applies to the captain of a ship or aircraft arriving in United Kingdom waters if—

(a) there are offshore workers on board, or

(b) an immigration officer has informed the captain that they wish to examine any person on board in the exercise of the power under paragraph 2.

(1B) In sub-paragraph (1A), ‘offshore worker’ and ‘United Kingdom waters’ have the same meaning as in section 11A.”

(4) In paragraph 27B—

(a) after sub-paragraph (1) insert—

“(1A) This paragraph also applies to ships or aircraft—

(a) which have offshore workers on board, and

(b) which—

(i) have arrived, or are expected to arrive, in United Kingdom waters, or

(ii) have left, or are expected to leave, United Kingdom waters.”;

(b) after sub-paragraph (9A) insert—

“(9B) ‘Offshore worker’ and ‘United Kingdom waters’ have the same meaning in this paragraph as in section 11A.”

(5) In paragraph 27BA—

(a) after sub-paragraph (1) insert—

“(1A) The Secretary of State may also make regulations requiring responsible persons in respect of ships or aircraft—

(a) which have offshore workers on board, and

(b) which—

(i) have arrived, or are expected to arrive, in United Kingdom waters, or

(ii) have left, or are expected to leave, United Kingdom waters,

to supply information to the Secretary of State or an immigration officer.”;

(b) in sub-paragraph (2), after (1) insert “or (1A)”;

(c) after sub-paragraph (5) insert—

“(5A) For the purposes of this paragraph, ‘offshore workers’ and ‘United Kingdom waters’ have the same meaning as in section 11A.”

10 (1) Schedule 4A (maritime enforcement powers) is amended as follows.

(2) In paragraph 1(2), after the opening words insert—

“‘the 2006 Act’ means the Immigration, Asylum and Nationality Act 2006;”.

(3) In paragraph (2)(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(4) In paragraph (3)(1)(a), for “25, 25A and 25B” substitute “24B, 25, 25A or 25B of this Act or section 21 of the 2006 Act”.

(5) In paragraph 4(1), for “25, 25A or 25B” substitute “24B, 25, 25A or 25B of this Act or section 21 of the 2006 Act”.

(6) In paragraph 12(2), after the opening words insert—

“‘the 2006 Act’ means the Immigration, Asylum and Nationality Act 2006;”.

(7) In paragraph 13(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(8) In paragraph 14(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(9) In paragraph 15(1), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(10) In paragraph 23(2), after the opening words insert—

“‘the 2006 Act’ means the Immigration, Asylum and Nationality Act 2006;”.

(11) In paragraph 24(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(12) In paragraph 25(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(13) In paragraph 26(1), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

Immigration, Asylum and Nationality Act 2006

11 In section 21 of the Immigration, Asylum and Nationality Act 2006 (offence of employing a person who is disqualified from employment by their immigration status), after subsection (3) insert—

“(3A) Proceedings for an offence under this section that is committed in the territorial sea adjacent to the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

(3B) Section 3 of the Territorial Waters Jurisdiction Act 1878 (consent of Secretary of State for certain prosecutions) does not apply to proceedings for an offence under this section.”’—(Tom Pursglove.)

This new schedule makes consequential and related amendments in NC20.

Brought up, read the First and Second time, and added to the Bill.

Question proposed, That the Chair do report the Bill, as amended, to the House.

[Bambos Charalambous]

I want to put on the record my thanks to the Clerks, in particular Sarah Thatcher and Rob Page, for their amazing work in getting our new clauses and amendments into some form of legible parliamentary-type wording. I also thank the other staff, those in the room in particular, the Doorkeepers and those keeping a record of our sometimes very long speeches. I also thank you, Ms McDonagh, and Sir Roger, for the excellent way in which you chaired proceedings of the Committee.

I thank the members of the Committee—the Minister and all members, but in particular my friends and colleagues in the Opposition for their support and for helping us get to where we are today. I put on the record my thanks to my fellow shadow Minister, my hon. Friend the Member for Halifax, and my hon. Friends the Members for Bermondsey and Old Southwark, for Sheffield Central and for Coventry North West, and to the hon. Members for Glasgow North East and for—I will attempt to say the name—Cumbernauld, Kilsyth and Kirkintilloch East.

Finally, I thank my staff, Katherine Chibah, Giulia Monasterio, Cian Fox, Charlotte Butterick and Tashi Tahir, for all their hard work on the research and the speeches, and for their general support. It has been a challenging Bill Committee and I am pleased that we have got to the end of it in one piece.

[Tom Pursglove]

Before you adjourn the Committee for the final time, Ms McDonagh, I also take the opportunity to thank everyone who has been involved, in particular the Opposition spokesmen of both parties, who have put an awful lot of work into their preparations. I know that it is not just them involved in their work, but their teams, who go to extraordinary lengths and really look at the detail of the measures that the Government are proposing to draw up suggested new clauses. It is a herculean effort, so I thank the spokesmen and those working with them.

I thank you, Ms McDonagh, and Sir Roger, for your firm but fair chairing of the proceedings. That is always much appreciated, and you have done a brilliant job at keeping us all in order in—I think it is fair to say—a controversial Bill, which Members come at with very strong opinions on all sides.

I also thank my colleagues and in particular our departmental Whip, who as ever has done a fantastic job and stood in at very short notice for my absence on Tuesday. It was extraordinary.

[Bambos Charalambous]

We were gentle with him.

[Tom Pursglove]

He did very well. I was concerned that I would not be wanted back. I also thank our standing departmental Parliamentary Private Secretary.

I also thank my officials, without whom it simply would not be possible to do this, for all the work they put in behind the scenes. I thank the Clerks of the House, too, who do a fantastic job in structuring the proceedings and ensuring that everything runs in an orderly fashion.

To finish, Sir Roger’s comments as he departed the Chair this morning put it rather well. These are controversial matters that people feel strongly about. Passions run high, but it is fair to say that the Committee has considered the matters in great detail and, I would argue, has done consideration of the Bill great justice.

Nationality and Borders Bill (Fifteenth sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Stuart C. McDonald]

Briefly, there are two reasons why I do not think this new clause makes any sense at all. First, there is the point that I just alluded to. The danger is that if someone who has a PRN served on them is contemplating disclosing further information or making a claim and the deadline passes, and they are acting in the way that the Minister wants to get at here and trying to “play the system”, they will simply not make that disclosure. Their existing claims will proceed to appeal through the normal channels, to a first tier tribunal with onward appeal rights. So the proposals do not make sense, even by the Government’s own logic. Can the Minister address that?

Secondly, we object to the new clause from a point of principle. The rare occasions when I would accept that an expedited appeals process can be justified are where the justifications relate solely to manifestly unfounded or repeat claims, but that is not what this is about; this is about expediting appeals and rights to appeal, but not because of the substance of the appeal—it has absolutely nothing to do with the merits of the claim or the related appeal at all. So the proposals make no sense from the point of view of principle, as well as being rather illogical.

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

Again, briefly, I agree with everything the Scottish National party spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, has just said. We do not know at what stage the other appeal will be; it may not be ready to be heard. One problem we have in this country is the delay in the appeals processes because of severe underfunding in our court and tribunal systems, so it seems that the new clause will not work.

The new clause will also cause more problems than it solves. I am not sure that there is a huge problem with multiple outstanding appeals in any event, but the new clause could actually make things worse. If the intention in the Bill is to provide fairness, the new clause will not achieve that, because speeding up an appeal could cause unfairness. So for the reasons outlined by the SNP spokesperson we will not support the new clause.

[Tom Pursglove]

The bottom line is that we simply disagree on this matter. Clause 21 ensures that appeals relating to late human rights or protection claims are dealt with expeditiously, with decisions by the upper tribunal being final. This provides appellants with a swift determination of their claim. It also disincentives late claims and seeks to prevent sequential or multiple appeals from being utilised as a tactic to thwart removal.

However, the Government recognise that in certain circumstances an individual may exercise other appeal rights, in parallel with their expedited appeal. This could give rise to a situation whereby a person has an appeal in a first tier tribunal and an expedited appeal in the upper tribunal. Consequently, the expedited appeal may conclude while an individual has an outstanding appeal in a first tier tribunal. If the appellant was unsuccessful in their expedited appeal, the ongoing appeal in the first tier tribunal would prevent their removal from the UK. This outcome is undesirable and undermines the Government’s intention to disincentivise late claims by ensuring that appeals relating to such claims are determined quickly and conclusively.

The new clause ensures that where a person has an expedited appeal, any related appeal will also be subject to the same expedited process. Therefore, following the conclusion of the expedited process, the appellant’s right to remain in the UK will be determined with finality and, where an individual has no right to remain in the UK, removal action can take place. That is the logical and sensible approach that we propose to take.

Question put and agreed to.

New clause 6 accordingly read a Second time, and added to the Bill.

--- Later in debate ---

Brought up, and read the First time.

[Bambos Charalambous]

I beg to move, That the clause be read a Second time.

New clause 1 would lift the Afghan citizens resettlement scheme’s limit of 5,000 people per year. The Labour party wants to see the removal of the 5,000 person limit and the opening of safe routes for refugees fleeing the Taliban. In the summer, the humanitarian crisis in Afghanistan captured the world’s attention, as images of thousands of Afghans, desperate but also determined to escape the Taliban’s grip on the country, dominated the media. As the UK has been one of the countries most directly involved in Afghanistan for the last two decades, the British public’s reaction to the refugees’ plight was one of compassion and benevolence. Hundreds offered hospitality, and many more donated support to arriving newcomers.

The Government reacted instantly to the public’s demand for welcome and refuge by announcing the Afghan citizens resettlement scheme, offering refuge in the UK to 5,000 Afghans, up to a total of 20,000 in the long term. The Prime Minister also promised to house a town’s worth of refugees, while the Home Secretary rushed to Heathrow airport—along with news camera crews—to receive some of those airlifted out of Kabul, as the Government launched Operation Warm Welcome.

The Government believe that Britain’s bespoke scheme for Afghan refugees is one of the most generous in the country’s history, and the Home Secretary has argued that it is not possible to take in any more refugees. In truth, the Government’s response to the Afghan catastrophe is hardly generous. The idea of a fixed quota for refugees in such emergencies is meaningless. The figure of 5,000 meets the Government’s political needs rather than the needs of those on the ground in Afghanistan. I note that in the new plan for immigration, the Government seem very happy to welcome up to 5 million Hongkongers via the British national overseas scheme, which I will address later.

Although we welcome the commitment to provide 5,000 places to Afghan refugees through the Afghan citizens resettlement scheme, the scheme appears to be a carbon copy of the Syrian vulnerable persons resettlement scheme. The difference is that while the Syrian scheme placed people who were already in refugee camps in Turkey and Jordan—a position of relative safety that made it easier to process and admit them—in this case, many have fled Afghanistan to neighbouring countries in fear for their lives, or are in hiding in Afghanistan, where they live in fear.

Just yesterday, a constituent of mine, whose sister had run a school teaching girls and had campaigned for free elections and women’s rights in Afghanistan, told me that her sister’s friend had been found and murdered, and that her sister was in hiding with her husband, petrified about what could happen to her. Despite being told by the Foreign Office to go to Kabul airport, some Chevening scholars and people who had helped the British military were prevented from getting on any flights out of the country. The problem is that some of those people who are trapped in Afghanistan are at high risk and may not survive until the end of the year, let alone the four years the scheme is meant to run. The scheme is not even open yet; two months down the line from the fiasco of the chaotic withdrawal from Afghanistan, we are no closer to finding out any details of the scheme.

From what I understand, the Government control who does and does not have access to the scheme, so they will choose who makes it on to the scheme. They also control the numbers, but an arbitrary annual cap of 5,000 people is meaningless and could cost lives if stuck to rigidly. In the Government’s response to the new plan for immigration consultation, the section entitled, “Protecting those fleeing persecution, oppression, and tyranny”, states:

“The Government will pilot an Emergency Resettlement Mechanism, starting in the autumn, to enable refugees in urgent need to be resettled more quickly so that life-saving protection is provided in weeks rather than months. Beyond this, the Government will provide more flexibility to help people in truly exceptional and compelling circumstances by using the Home Secretary’s discretion to provide rapid assistance.”

The Government have failed to live up to those words because life-saving protection was not provided in weeks, but months, and there is no sign of rapid assistance.

If the arbitrary annual limit of 5,000 people is reached, Afghans who helped the UK military and who have been able to escape Afghanistan could arrive seeking protection in the UK only to be treated like criminals for how they have arrived. It is worth noting that the Government’s advice to Afghans was to leave Afghanistan when they ran out of time for flights to the UK in August. Under the Bill, they would be penalised if they came to the UK via irregular routes. That would plainly be wrong and inhumane, and the Government could avoid that by having no cap on the resettlement scheme.

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[Tom Pursglove]

I am grateful to my hon. Friend for that intervention, and no doubt we will have a conversation about his visit to Dover.

[Bambos Charalambous]

As I mentioned in my speech, the Government chose who came into the UK through the voluntary resettlement scheme and they will do so under this scheme as well. Remarks about giving unfettered or unlimited access to everyone are therefore ludicrous, because the Government will be in control of who can enter the UK from Afghanistan through this scheme. To make such aspersions is clearly wrong and misleading.

[Tom Pursglove]

The shadow Minister interrupted me while I was responding to the point made by my hon. Friend the Member for Stoke-on-Trent North, and, of course, I was happy to take his intervention. The scheme we intend to bring forward is structured and it should not be seen in isolation in relation to Afghanistan. It is important to consider it in the context of the Afghan relocations and assistance policy, which has been invaluable and plays an important role in our efforts to provide sanctuary to those fleeing Afghanistan. That is very important to consider.

To continue with my point about the participation of civil society in community sponsorship, we have been working around the clock to stand up support with local authorities and to secure accommodation for the scheme. There is a huge effort under way to get families who have already been evacuated to the UK into permanent homes so that they can resettle and rebuild their lives. Clearly, we do not want families to remain in bridging accommodation for long periods, so it is sensible to have a limit on the number of places we offer on the scheme.

The new clause seeks to bring the Afghan citizens resettlement scheme into force within 30 days from the date of Royal Assent. We are working at pace to open the scheme, and the new clause would likely result in significant delays in resettling individuals under the scheme.

During the passage of the Bill, we have had many debates relating to Afghanistan. I said previously that I would ensure that the Minister for Afghan Resettlement was made aware of the Committee’s comments, and I will endeavour to do that again. It is important that all views are heard as we work at pace to shape this scheme and to make sure that we get it right, so that we are able to provide sanctuary to those to whom Members across the Committee and across the House want to provide it.

Previous schemes have not been delivered through legislation. I would argue that it is best to be responsive and flexible, and that not putting the scheme on a statutory basis has that effect. The shadow Minister used the word “rigid”. I would argue that not going down the statutory route ensures we can be flexible as to the evolving situation, and provide proper care and support to people who come here.

We want coming to the UK to be a positive and life-changing experience, and we want to provide sanctuary and care for those individuals. I am confident that that is precisely what we will do in delivering this scheme and that our country will be able to be incredibly proud of it. We owe it to those individuals to provide them with sanctuary, and that is precisely what we will do. With that, I ask the hon. Members to withdraw the new clause.

[Bambos Charalambous]

I am not convinced by the Minister’s arguments, which clearly amount to a new cap on immigration. I will repeat the number for the benefit of the hon. Member for Stoke-on-Trent North: there are 5 million people potentially eligible to come to the country via the British national overseas visa scheme; we are just asking that more than 5,000 people are able to come from Afghanistan. If that limit is rigidly applied, people’s lives could be in danger.

Question put, That the clause be read a Second time.

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Brought up, and read the First time.

[Bambos Charalambous]

I beg to move, That the clause be read a Second time.

The Opposition urge the Government to adopt a mandatory dispersal and asylum accommodation scheme that will require all local authorities to contribute towards supporting asylum seekers and the Government to fully fund any additional expenditure for those authorities. Having listened to the hon. Member for Stoke-on-Trent North speak about his local authority taking its fair share of asylum seekers in dispersal asylum accommodation, I can honestly say that, on this and this alone, I agree with him, and I know he will have no difficulty in supporting our new clause.

Local authorities currently volunteer to participate in dispersal arrangements. The Home Secretary has reserve powers to ensure that local authorities co-operate in the provision of accommodation for asylum seekers through sections 100 and 101 of the Immigration and Asylum Act 1999. The current dispersal system is unfair and inefficient, with the majority of asylum seekers housed in disadvantaged local authority areas while dozens of councils support none. This has led to some councils that have been incredibly generous and kind in taking asylum seekers, such as that in the great city of Stoke-on-Trent, feeling undermined by councils that have not and threatening to leave the Government’s voluntary scheme.

In the Committee’s evidence session on 21 September, I asked the leaders of Kent County Council and Westminster City Council, Councillor Gough and Councillor Robathan, whether they thought that all councils should have to take their fair share of asylum seekers. Both agreed that they should as they spoke about the pressures on services for their local councils. In August, the Local Government Chronicle ran a story about council leaders demanding a fairer distribution of refugees, in which Coventry City Council leader George Duggins said:

“All local authorities need to take their fair share of the dispersal programme—no opting out, no excuses”.

It also included Walsall Council leader Mike Bird saying that the dispersal of asylum seekers was

“an issue for the whole of the country, not just the urban areas”,

and Stoke-on-Trent City Council leader Abi Brown, whom I am sure the hon. Member for Stoke-on-Trent North will be familiar with, saying that it was “really sad” that many councils had still not pledged to take any Afghan refugees, adding:

“How do we counter this if there isn’t some national scheme?”

[Jonathan Gullis]

The hon. Gentleman rightly quotes the leader of Stoke-on-Trent City Council. My hon. Friends the Members for Stoke-on-Trent South (Jack Brereton) and for Stoke-on-Trent Central (Jo Gideon) and I agree that other parts of our United Kingdom should step up to the plate and do much more. I reiterate and put on the record that I support Stoke-on-Trent City Council, which is currently looking to withdraw from the voluntary dispersal scheme because it is unhappy with how it works at present. Therefore, while I have a lot of empathy with what the hon. Gentleman’s new clause seeks to do, I will—reluctantly, in some ways—not vote for it. However, I would absolutely like to work with the hon. Gentleman and Opposition and Government Members to make sure that the scheme becomes much fairer and works for other parts of our United Kingdom.

[Bambos Charalambous]

I look forward to having that conversation with the hon. Gentleman after the debate, because we need a fairer system; too much of the burden is clearly being put on some local authorities and not enough on others.

Local authorities are vital partners in providing suitable accommodation and support for people seeking asylum. The system works best when central Government, the devolved Governments and local government work together, alongside the voluntary sector and community groups. This requires local authorities to be fully on board with plans to accommodate people in their area. However, figures have shown that more than half of those seeking asylum or who have been brought to Britain for resettlement are accommodated by just 6% of local councils, all of which represent areas with below average household incomes.

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[Tom Pursglove]

I agree with some of the intention behind new clause 2. It is right that all parts of the UK make a reasonable contribution to ensuring that adequate accommodation is available for asylum seekers who would otherwise be destitute, but it is important to recognise that not every area of the UK has appropriate services or affordable accommodation to appropriately support them. Additionally, some local authorities have very few asylum seekers accommodated by the Home Office in their areas but support large numbers of other migrants. For example, the Home Office does not accommodate many adult asylum seekers and their children in Kent or Croydon, but both local authorities support large numbers of unaccompanied asylum-seeking children.

It is also important to note that not all asylum seekers are accommodated by the Home Office. The proportion varies over time, but historically around 50% find accommodation with friends or family. That group often live in areas where there are few supported asylum seekers, but they still require access to the same health and education services. It is not therefore sensible to have a rigid set of rules that require destitute asylum seekers to be accommodated in areas in direct proportion to the population of those places. The other factors that I have described must be taken into consideration.

Since the introduction of part 6 of the Immigration and Asylum Act 1999, successive Governments have employed a policy of seeking the agreement of local authorities prior to placing asylum seekers within an area. However, the legislation does not provide local authorities with a veto on the placement of asylum seekers in their areas. If a local authority objects to proposals by our providers to use accommodation not previously used to house asylum seekers, the Home Office can consider and adjudicate on the matter.

A lot of work has none the less been done on increasing local authority participation in asylum dispersal since 2015. Prior to 2015, there were around only 100 local authorities participating. There are now around 140. We have established the local government chief executive group to bring together senior representatives from local authorities, with the aim of expanding the dispersal system and improving the process for the people who use it. We are planning a wider review of the dispersal process and will be consulting local authorities and others.

The local government chief executive group is working collaboratively to evidence any additional costs to local authorities by the dispersal proposal and to identify the appropriate funding mechanism. In light of what I have said, I hope that the hon. Member for Enfield, Southgate will withdraw the motion.

[Bambos Charalambous]

I am sorry, but I suggest that we vote on the new clause.

Question put, That the clause be read a Second time.

--- Later in debate ---

Brought up, and read the First time.

[Bambos Charalambous]

I beg to move, That the clause be read a Second time.

We believe that new clause 3 is necessary because of an issue relating to comprehensive sickness insurance, which has been affecting EU citizens and babies born in the UK to EU parents. The issue is preventing naturalisation or automatic access to the right to be registered as British born. We believe that that is unfair and incorrect. Historically, access to the NHS for European economic area and Swiss citizens was free at the point of use, on the same terms as residents who are British citizens, without the need for any further insurance.

The Immigration (European Economic Area) Regulations 2016 included a requirement for comprehensive sickness insurance, but this requirement was not routinely communicated to EEA and Swiss citizens, and was only required at the point of applying to the Home Office. This has led to a situation where individuals have been refused permanent residence documents, naturalisation applications and citizenship at birth, and have lost family reunion rights under the separation agreements following a discretionary grant of naturalisation. Not only was the requirement for comprehensive sickness insurance not made clear prior to applying to the Home Office, but CSI might not have been relevant to EEA or Swiss citizens, such as during periods of study or self-sufficiency.

I will set the issue in a wider context. The UK has set up the EU settlement scheme, which allows EU citizens to acquire settled status, but many want to become British. They want the right to vote and the security of the nationality of their adopted home, the United Kingdom. However, the requirement to have an obscure health insurance policy is putting applications at risk of refusal and is discouraging many from applying. The British Nationality Act 1981 requires applicants to have not been in breach of immigration laws for any period relied on in the application. While a lot of EU citizens need only to have been living in the UK, students and those who are self-sufficient must also be in possession of comprehensive sickness insurance. However, the possession of CSI has never been a requirement for EU citizens to live in the UK or use the NHS, so most people do not and never have had it.

More concerning is the fact that the Home Office never communicated clearly to EU students and self-sufficient people that they would need to have CSI to become British. The Home Office, which is in charge of decisions relating to applications for citizenship, has maintained the policy despite questions from various organisations, including the3million. In May 2020, updated guidance to caseworkers confirmed the policy, changing the application process to ask for CSI and directing caseworkers to check for it. The guidance introduced a vague power of discretion, but no details were provided as to how that discretion should be applied.

In the Opposition’s view, it is clearly unfair that this anomaly relating to CSI has led to historical and ongoing injustices. It is not fair that what appears to be an additional random requirement for one group of citizens—not communicated prior to application—has, in effect, defined people’s ability to naturalise or claim citizenship.

We therefore believe that the new clause is needed to make the law fair. The historical requirement demanding that individuals hold CSI should also be satisfied by them having had free access to the NHS at the point of use without further insurance. The addition of historical access to the NHS as a satisfying condition would be much fairer. I will give some examples to further illustrate the need for this.

Roberto is Portuguese and arrived in the UK in 2006. He did an undergraduate degree in the UK, where he met his wife. During their university years, they studied full time and did not have CSI as they were never made aware of that requirement for full-time EU students in the UK. They had a son in the UK in 2011 and applied for his British passport, believing that he would automatically be born British.

However, when Roberto and his wife contacted the Home Office for information about the passport application, they were told that as they had not had CSI in the five years preceding the birth, he was not considered to be British. This new clause would address this problem, as the parents’ CSI requirement would have been met by their having had access to the NHS. Consequently, the fact that the child should have been born British can now be addressed by registering for British citizenship at no charge.

I would like the Committee to consider another example illustrating the need for this new clause. Lara is a Brazilian-Italian citizen who has been living in the UK since 2014. Between 2014 and 2017, Lara was in work, but she started a full-time degree at the University of Cambridge in September 2017. In July 2019, Lara was granted settled status under the EU settlement scheme and was looking forward to applying for naturalisation as a British citizen in 2020 after holding settled status for a year. Lara has since started working again, and has been made aware that she should have held CSI while she was at university—a requirement she was never made aware of by either her university or her GP.

If Lara applies for naturalisation, she may fail the lawful residence requirements due to the absence of CSI and may have her application refused. Since late 2020, caseworkers have had the discretion to grant citizenship when there are compelling grounds, although those are not clearly defined in any Home Office guidance. Therefore, like many other EU citizens, Lara is afraid of taking the risk of paying the £1,330 naturalisation fee and not obtaining a positive outcome.

Our new clause would mean that the period of residence that led to the grant of settled status would be considered to be lawful residence, and that the good character requirement could not be failed for a lack of CSI. That would give EU citizens like Lara the confidence to apply for naturalisation, knowing that they would meet all the criteria.

It is important to note that if Lara applies for citizenship and is granted it through caseworker discretion, the CSI issue is likely to still affect her in the future. If she then wished to be joined by a family member in the UK, the complex appendix EU immigration rules, which define the EU settlement scheme, mean that she would fall outside the definition of “qualifying British citizen” due to her historical lack of CSI, and therefore lose the scheme’s right to family reunion. If Lara does not become a British citizen, she would have that right through having settled status.

The new clause would mean that for future decisions taken under the immigration rules, the CSI requirement would be met by access to the NHS, meaning that EU citizens like Lara would not unexpectedly lose the rights they had before naturalising. We believe that this new clause is needed to address this unfair anomaly around CSI.

[Tom Pursglove]

I thank the hon. Members for tabling the new clause, which relates to the requirement, in certain circumstances, for EEA nationals to have had comprehensive sickness insurance to have been residing lawfully in the UK. Regulations set out the requirements that EEA nationals needed to follow if they wished to reside here lawfully on the basis of free movement. In the case of students or the self-sufficient, but not those who were working here, the possession of CSI has always been a requirement.

--- Later in debate ---

[Tom Pursglove]

The hon. Gentleman will appreciate that this matter falls within the portfolio of the Minister for Future Borders and Immigration, so if the hon. Gentleman does not mind, I shall take away that suggestion and ask the Minister to consider it. If the hon. Gentleman wants to follow up in writing with the Minister, I am sure my hon. Friend would consider that and come back to him. I will certainly make sure that he is aware of the suggestion the hon. Gentleman raises.

The new clause would amend the naturalisation requirements for EEA nationals who did not have CSI and so had not been in the UK lawfully before they acquired settled status. We cannot accept that, as all applicants are required to meet the same requirements for naturalisation in terms of lawful residence and it would not be right to treat certain nationalities differently.

The third part of the new clause would amend the European Union (Withdrawal Agreement) Act 2020 such that a person is treated as having had CSI if they had access to the NHS in practice or held a CSI policy. However, there is no mention of CSI in the rest of that Act, nor is there any mention of CSI in residence scheme immigration rules. The EU settlement scheme does not test for CSI and there is no need to have held it in the past, or to hold it now, in order for EEA nationals to obtain settled or pre-settled status. As such, that part of the new clause would have no practical effect. I therefore ask the hon. Members to withdraw their new clause.

[Bambos Charalambous]

I will press the new clause to a Division.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Stuart C. McDonald]

I thank the Chagossians who spoke to the shadow Minister and myself, and Fragomen solicitors for facilitating that discussion and drafting the new clauses. As Members, and particularly Conservative Members, will know, the hon. Member for Crawley (Henry Smith), in whose constituency we find the UK’s largest Chagossian diaspora, has championed Chagossians for many years. On Second Reading I asked the Government to consider introducing a clause to rectify some of the injustices that Chagossians have faced for more than half a century. I understand that they will bring in an amendment on Report to do that, but today we seek to probe their initial thinking.

We could speak all day about how outrageously the Chagossians were treated by the UK and the US. They were removed from their islands simply to make way for an airbase, dumped in Mauritius and elsewhere and basically forgotten about. There are myriad injustices that are still to be put right. The new clauses do not fix everything, but they would fix significant injustices in relation to nationality—exactly what part 1 of this Bill was supposed to do—and family. Some Chagossians would benefit from provisions in part 1 of this Bill, which is welcome, but the Bill needs to go much further if they are to have access to the citizenship that is rightly theirs and that has been denied them only by the outrageous events of the late 1960s and the early 1970s.

As we touched on during debates on part 1, citizenship by descent in British and British overseas territories’ nationality law usually stretches to only one generation. If someone moves abroad, the children they have there will be British by descent, but if those children remain abroad and later have kids they would not be able to pass on that British citizenship. That reflects the idea that the family have made a voluntary decision to loosen their links to the UK and to build a new life elsewhere. Therefore, citizenship of the country where they now live is probably more appropriate.

Exceptions are made—for example, if the only reason the person was abroad was Crown service or if the parent who could not pass on citizenship has actually lived in the UK for three years previously or goes on to do so. All of that illustrates the point that reflecting the idea of a voluntary link to the UK justifies continued transmission of UK citizenship.

None of that can apply to the Chagossians; the situation there is obviously manifestly different. The only reason why Chagossians cannot pass on their British overseas territory citizenship is that they were forcibly removed from their islands. Nobody chose to make a new life in Mauritius or anywhere else—far from it. Nobody can say that they have voluntarily chosen to take on a new identity elsewhere. Any undermining or breaking of the link was completely forced on them in quite the most outrageous circumstances; that in itself should be enough to justify new clause 15.

The knock-on effect is that when the law was changed in 2002, while some Chagossians became British citizens as well as British overseas territory citizens, others missed out. They are now in the horrible situation where some have the right to rekindle their British identity and return here, but others do not. If I was a Chagossian whose parent was born just before being forcibly removed from the islands, and was therefore BOTC by birth, I am likely to be in a far better position than, for example, my cousin whose parents were born just days after being forced from the islands, and therefore cannot transmit their BOTC or British citizenship. When introducing the Bill, the Home Secretary said that it would mean children unfairly denied British overseas territory citizenship will finally be able to acquire citizenship, as well as British citizenship. What happened to the Chagossians, and what they still face today, is an absolute scandal. The least that we can do is ensure that all of them can access the nationality that the UK and US action deprived them of.

New clause 4 would fix another unfairness. I absolutely detest the restrictive rules that the Home Office has put in place on family visas, which say that someone must be earning certain sums of money before they can bring their non-national spouse or children here. Putting that to one side for the moment, even accepting the Government’s own logic, these provisions should not apply to the spouses and family members of Chagossians. Essentially, the Government logic is that if people choose to build a family life elsewhere and then come back to the UK, they should have certain financial means to support themselves and knowledge of the UK. However, again, Chagossians did not choose to make their family life outside British overseas territories—that was forced on them. It would now be totally unfair to restrict the right to come to the UK by imposing those rules on the families as if this was a choice they made.

It was a step in the right direction to provide British citizenship to some in 2002, but it is cruel to deny effective access to these routes by denying family members the right to come here. It is particularly cruel, given that the reason many will not be able to meet the financial threshold is the horrendous way they have been treated for decades and the extraordinary deprivation they have had to endure. I hope the Home Office will look to fix two of the many injustices that have been visited on the Chagossians.

[Bambos Charalambous]

I will speak to new clause 15, which is grouped with new clause 4. I fully endorse what the spokesperson for the SNP said.

New clause 15 seeks to rectify a long-standing issue in British nationality law that affects a relatively small number of people—the Chagossian people, descendants of the Chagos islanders, who were forcibly removed from the British Indian Ocean Territory in the 1960s. Between 1968 and 1974, the UK forcibly removed thousands of Chagossians from their homelands on the Chagos islands. The removal was done to make way for a US military base on Diego Garcia. The Chagossians were a settled population on the islands. Their origins trace back to 1793. They were removed and deported to Mauritius and the Seychelles, more than 1,600 km away from the Chagos islands, and have faced extreme poverty and discrimination in those places.

Because of the removal, many descendants of the Chagos islanders, despite being the grandchildren of people who were British subjects in the British Indian Ocean Territory, have been denied rights to British citizenship. The British Overseas Territories Act 2002 granted British citizenship to resettled Chagossians born between 1969 and 1982—the children of those born on the British Indian Ocean Territory. However, many Chagossians have still been denied citizenship, including second-generation Chagossians born outside those dates.

The grandchildren of those born on the British Indian Ocean Territory, third-generation Chagossians, do not have rights to British citizenship, as citizenship has not automatically passed to them, even if in some cases they migrated to the UK with their British parents at a very young age. That group therefore often become an undocumented presence in the UK once they reach the age of 18, and are denied access to jobs, housing and healthcare, despite having lived in the UK since a very young age.

The Chagossian community is divided between Mauritius, the Seychelles and the UK. Broken and divided families are therefore a direct consequence of this injustice in British nationality law. For 60 years, the Chagossian people have faced dispersal, poverty and separation. That has severely limited their life chances and damaged the health and wellbeing of generations of people.

The Bill in its current state does not cover the British citizenship and immigration issues that the Chagossian community faces. That is why the Opposition are introducing this new clause and why we wish to raise the issue today. It is worth exploring this unfairness in more detail, and the reasons why legislation has failed to rectify it to date.

Under British nationality law, citizenship is normally passed only to one generation born abroad. However, the situation of the Chagossians is fundamentally different from that of other inhabited British overseas territories, and applying that restriction to the Chagossians is unacceptable. As we know, their parents and grandparents were forcibly removed from their homeland and deported to Mauritius and the Seychelles. Since then, the Chagossian people have been born outside the Chagos archipelago and receive citizenship from Mauritius or the Seychelles, with no recognition of their long-standing ties to British nationality.

It is not possible for the descendants of the Chagos islanders to be born on the islands of the British Indian Ocean Territory due to the Order in Council since 2004, which bans any Chagossian from living on their native land. That is deeply unfair. They have not severed links with their British citizenship voluntarily; they have been excluded by the UK Government. At this point I would like to share the personal experiences of those affected by that injustice. Like many in Committee, I have been contacted by members of the community, and I pay tribute to their campaigning efforts in incredibly distressing and difficult circumstances, including groups such as Chagossian Voices. Pascal Francois is one of those affected. He resides in Mauritius and is Chagossian. He says:

“For years we have suffered from the separation of our families, through no fault of our own. We are as British as you and the next person. We wish to be known as British, we belong to the UK & her territories. The Chagossian people in exile no longer want to live in the shadows of others. We want to belong and be British by descent.”

The battle for Chagossians’ rights has been raging for decades, and this group of people have been badly let down by the UK. Most Chagossian families, already financially impacted by their enforced exile, are paying—and have paid for many years—huge and increasing visa, immigration and citizenship fees, health surcharges and legal expenses for spouses and children with pending or rejected applications. This process has significantly damaged their health, wellbeing and livelihoods. It has caused immense stress. There is understandable frustration at the lack of support from the Home Office.

Nationality and Borders Bill (Twelfth sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Jonathan Gullis]

I have one daughter and a son on the way in early February, which I am pleased to announce to the House. What a lucky father I am going to be. The hon. Lady said it—there is nothing dangerous about France, Italy or Greece. People’s lives are not at risk. They may well be in Afghanistan or Syria. People will have left those countries and made that dangerous journey, which they should not have done because there are safe and legal routes to the UK. Other countries across mainland Europe could look to us as an example. They can claim asylum in those countries and not risk their lives by crossing the channel from France to the United Kingdom.

As I said, 70% of people making that illegal crossing are men between the age of 18 and 35. Predominantly, women and children are not coming with them but staying in those dangerous countries, which is why what we did with Afghanistan and Syria was so brilliant—we took women and children from a terrorist regime that I have no time for whatsoever, who treat women as second-class citizens and force certain children into slavery. We need to ensure that those women and children are protected.

I therefore believe that we should give commanders the confidence to do that again if they believe it to be safe. It is the commanders who will make that decision, and I have full faith that they will do so knowing the law, and the legal system in this country will have their back. Most importantly, they will take into account the condition of the waters at the time and the passengers onboard, so they can decide what is safe. The French can then do what they are meant to do when boats are in French territorial waters—stick to the obligations they sign up to for the money they get from British taxpayers and take those people back.

The people of Stoke-on-Trent North, Kidsgrove and Talke are so angry about what is going on that they want us to pick people up and take them straight back to Calais. I am sympathetic to their viewpoint, and that is one way to deter. This is a legal opportunity for us and the right one for the Government.

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

It is a pleasure to follow the hon. Member for Stoke-on-Trent North. He has shown a real insight into seafaring from Stoke-on-Trent, which we all know is a coastal town.

It will come as no surprise that we will vote against clause 41 and schedule 5. Both plan to extend and enhance the new maritime enforcement powers beyond the UK territorial waters into international waters. They seek powers to stop, board, divert and detain foreign ships and ships without nationality.

The overarching goal of clause 41 is to push back asylum seekers, and for Government to redefine ships in legal terms, as the hon. Member for Glasgow North East mentioned. They broaden that definition to include fragile and insecure vessels that cross the English channel. At present, the definition of “ship” includes every description of vessel, including hovercraft, used in navigation. That definition is to be supplemented so that “ship” also includes any other structure, with or without means of propulsion, constructed or used to carry persons, goods, plant or machinery by water. To be more precise, it is referencing the small boats that cross the English channel.

The clause would grant new powers to the Home Office to stop or board ships, take them to any place on land or water in the UK or elsewhere, retain them there or require them to leave UK waters, if it has reasonable grounds to suspect that a relevant immigration-related offence is being committed. The powers may be exercised in relation to a UK ship, a ship without nationality, a foreign ship or a ship registered in another British territory. In addition, extensive new enforcement powers are to be conferred in this clause, and the power to seize and dispose of ships will be conferred in schedule 5. The problem with the power to divert ships bound for the UK is that it raises profound questions about the safety and wellbeing of the people on board, and ultimately presents a risk to lives. There is no proof that the diversion of a ship would occur only where safe, no suggestion of how it would be policed and enforced, and no intention from the Government to act in accordance with international law. Such intentions are likely to be assessed meaningfully only in retrospect, once people have been harmed.

--- Later in debate ---

Removals: notice requirements

[Bambos Charalambous]

I beg to move amendment 137, in clause 43, page 40, line 8, leave out subsections (3) to (5).

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Government new clause 28—Removals: notice requirements.

[Bambos Charalambous]

Clause 43 refers to no-notice removals and presents another problem of access to justice in the Bill. The clause aims to provide a statutory minimum period to enable individuals to access justice prior to removal and makes provisions for removing individuals following a failed departure without the need for a further notice period. It also includes the provision of written notices of intention to remove and departure details. It makes clear in statute the duty of the Home Office to give people a maximum of five working days’ notice when they are going to be removed from the UK.

For more than 10 years, the courts have recognised that that duty to give notice of removal is essential to accessing justice and the rule of law. As the Committee will acknowledge from our discussions on the Bill so far, it is vital that, when officials decide people should be removed, those people can access the courts to challenge that decision if they have a legitimate case.

However, while this clause sets out to provide access to justice, its effectiveness in doing so is very unclear. If the purpose of the notice period is, as stated, to enable those facing removal to access legal advice and the courts, it is essential that people served with a notice are able in practice to access that advice.

For example, the clause does not explain how the Government will ensure that access to legal advice will be provided. Asylum seekers can be highly vulnerable and may experience difficulties in effectively accessing legal advice and in understanding the legal intricacies of the asylum process, such as studying legal determinations or preparing submissions. As we know from our earlier scrutiny, clause 22 in part 2 provides for up to but no more than seven hours of legal aid for those served with a priority removal notice to receive advice on their immigration status and removal. We do not believe that provision goes far enough, but this clause is worse still. Unlike the provisions for priority removal notices, there is no specific provision in part 3 for ensuring that those who are served with notice of intention to remove can access legal advice within the notice period. The scheme therefore depends on existing legal aid provision, which has of course been decimated by the Conservatives for more than a decade. There are serious limitations in the availability of this provision for those both in detention and in the community.

Subsection (8) inserts new section 10A in the Immigration and Asylum Act 1999. It sets out potential scenarios where a further notice period is not required, which includes, for example, where the person was not removed on the date specified in the first notice due to matters reasonably beyond the control of the Secretary of State, such as adverse weather conditions, technical faults or transport delays, or disruption by the person to be removed.

Disruption is very broad of course, and can be interpreted on a very broad basis. It could be applied to a person refusing to leave their room in detention because they want to speak to their lawyer. The fine print also states that a new notice of intention to remove and a further notice period are also not required where the person was not removed on the date specified in the first notice as a result of “ongoing judicial review proceedings”.

That point is even more problematic. It applies where a planned removal does not proceed because of judicial review proceedings. If those proceedings are resolved in a way that means removal can proceed, the Home Office does not have to give any notice of removal if it is carried out within 21 days of the court’s decision.

As the Public Law Project and JUSTICE have pointed out, that decision could come weeks, months, or even years after the first notice of removal. Over time, the person’s circumstances could have changed fundamentally, important new evidence could have come to light or the situation in their own country might have changed dramatically. Such changes can happen virtually overnight, as recently witnessed in Afghanistan. Yet once the previous judicial review proceedings, which were potentially based on completely different facts and circumstances, are decided, a person can be removed without any notice or opportunity to raise these new circumstances with the Home Office or to access the court. If implemented, that could give rise to significant injustices.

I have one example to highlight this point—I thank the Public Law Project and JUSTICE for sharing this example. MLF is a Sri Lankan national whose asylum claim had been dismissed. During judicial review proceedings, in which he was unrepresented, he submitted further representations to the Home Office based on new evidence of the killing of three male relatives. That new evidence could not be considered in the judicial review proceedings because it post-dated the decision being challenged. The Home Office’s barrister informed him that the material would be forwarded to the relevant part of the Home Office for consideration.

MLF was subsequently served with a decision that refused to consider his fresh representations. He was subsequently removed to Sri Lanka on the same day without any notice or opportunity to access the court. In hiding in Sri Lanka, MLF applied for judicial review of his removal without notice. The Home Office conceded that he had been unlawfully removed and arranged for MLF to return to the UK. He has since been granted refugee status on the basis of evidence that post-dated his original appeal, including that which he had submitted during his judicial review proceedings.

If clause 43 was implemented in that case, it would have authorised the removal of MLF without notice. To avoid situations where people are wrongly removed and evidence is not considered properly, amendment 137 seeks to delete subsections (3) to (5) of new section 10A of the 1999 Act. That change would ensure that people are required to be given notice of removal directions and an opportunity to ask the court to issue an injunction preventing their removal while additional elements of their case are considered or in order to present fresh evidence to challenge an initial decision.

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

The shadow Minister has raised lots of sensible questions. I have one other brief question for the Minister, on new clause 28. He may not be able to answer it today, but I would like it clarified, if possible.

Proposed new section 10E to the 1999 Act that the new clause would add is supposed to apply when a person has applied for judicial review and the court has made a decision authorising the removal. To be clear, does that decision relate to the judicial review, or could it relate to any prior decision? That point will not affect lots of people, but it will be important. I appreciate that the Minister may not be able to answer immediately, but I hope we will get clarity on that in due course.

--- Later in debate ---

Government new clause 28 will ensure that migrants have ample time to access justice. The cumulative result will be a more efficient and streamlined removals process. I commend our amendment to the Committee.

[Bambos Charalambous]

We are not convinced by the Minister’s response and wish to press amendment 137 to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[Bambos Charalambous]

The Government will disagree to clause 44 and replace it with new clause 8, although I understand that new clause 8 has fundamentally the same principle as the clause. Clause 44 and new clause 8 will extend the length of time a foreign national offender can be considered for early removal from the last nine months to the last 12 months of their sentence if they become eligible for the scheme. The Opposition have concerns that increasing that time limit will lead to unfairness in accessing justice for foreign national offenders as well as leaving them with inadequate time to obtain access to legal representation.

In our already overpopulated and overworked prison system, foreign national offenders have limited access to legal support and resources even when compared with people detained in immigration detention centres. They have no access to mobile phones or the internet. In the limited time that they do have access to a phone, the contacts they can call are vetted by the prison and this process can take many weeks. Thus, acquiring adequate legal representation becomes near impossible. Time is of the essence to these individuals and increasing this early removal widow will only lead to exacerbating these difficulties.

Bail for Immigration Detainees produced a report in 2017 on the lack of legal advice available to prisoners, which found that only five of the 86 prison detainees surveyed had received independent advice about their immigration case. They found that detainees in prison are routinely denied access to basic information that might help their immigration case. Cuts to legal aid have only made this situation worse. The High Court earlier this year held that detainees in prison have suffered discriminatory treatment due to obstacles in getting legal advice—in particular, exemptions from legal aid eligibility.

Despite what high-profile recent Home Office failings might imply, when it comes to deportations the already heavily stacked deck is stacked against the deportee. Not having proper legal representation means that the detainees will almost certainly be denied the fundamental right to a fair hearing. It would mean that they could be deported to countries in which they face persecution, or it would be in breach of their human rights. We should not undermine that right by extending the length of time they have for removal. Charities such as Bail for Immigration Detainees are already stretched to breaking point trying to support these vulnerable individuals. Instead of limiting access to justice, the Government should work on increasing its efficiency so that foreign national offenders who have committed serious crimes are dealt with swiftly and those who have claims to remain are given a fair hearing.

Question put and negatived.

Clause 44 disagreed to.

Clause 45

Matters relevant to decisions relating to immigration bail

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

[Tom Pursglove]

For too long, individuals with no right to remain in the UK, including foreign criminals, have been gaming the system in order to get released from detention and frustrate their removal. We have seen individuals making asylum claims while in detention, but then delaying the resolution of that claim through their own deliberate actions, such as refusing to be interviewed. The current system incentivises non-compliant behaviour. By creating obstacles, bail is more likely to be granted due to the time it will take to resolve the claim and any subsequent appeals. It is not right that a person’s non-compliance enables their release.

Similarly, an individual may refuse to provide fingerprints for a travel document or may lie about their true nationality, thereby obstructing the returns documentation process. This again makes the prospect of removal more remote and increases the likelihood that bail may be granted. From an operational perspective, non-compliance is difficult to tackle and becomes much harder to counter once individuals are released from detention into the community, where they have the ability to abscond or continue with non-compliance. Therefore, eliminating the risk and impact of non-compliance is a key benefit that arises from the use of immigration detention if appropriate in the individual case.

We must have an immigration system that encourages compliance. The purpose of clause 45 is to ensure that, so far as possible, appropriate weight is given to evidence that a person has not been co-operative with the immigration or returns processes without reasonable excuse when making immigration bail decisions. This is currently not explicitly referenced as one of the specific mandatory criteria for considering whether to grant immigration bail.

[Tom Pursglove]

I do not accept that depiction. We are requiring decision makers to take into account co-operation with removal proceedings and immigration processes when considering applications for immigration bail. We are mindful that non-compliance may already be considered, and that the tribunal takes such behaviour into account when deciding whether to grant bail. However, the intention behind the provision is that there be the same focus on evidence of non-compliant behaviour as there is on those factors already particularised and considered in every case. As we have always made clear, we do not detain indefinitely, and the clause will not mean that people will be detained solely due to non-compliance, as there must always be a realistic prospect of removal within a reasonable timescale.

[Bambos Charalambous]

We will oppose the clause. It makes it more difficult for individuals to get bail and leaves them stranded in immigration detention indefinitely.

The clause would require decision makers to consider previous failure “to cooperate with” certain immigration processes when considering whether to grant immigration bail. That is extremely vague and broad language. There is a risk of it being misconstrued and used to penalise those who use their legal rights to resist or appeal against immigration decisions made against them.

The Public Law Project has stated that if detainees are given the impression that any resistance to a decision of the Home Office may be held against them, it would increase unfairness and have a significant chilling effect on those bringing legitimate legal challenge. There is already an uneven playing field; the clause risks tipping things still further in the Home Office’s favour. The Home Office is expanding its powers of detention, while preventing independent judicial oversight of its decisions to detain.

Immigration detention is a harsh measure. It has no time limit and little judicial oversight, and should be used only when necessary and for the shortest time possible. The Government hold vulnerable people in prison-like immigration detention centres for periods ranging from days to several years. That includes people who have lived in the UK since childhood, people fleeing war and persecution, torture survivors and victims of human trafficking. Such vulnerabilities cannot be managed in detention and will no doubt be worsened by the prospect of bail being denied.

Since 2000, 49 people have died in immigration detention centres, and incidents of self-harm are now recorded at more than one a day. The Home Office’s immigration detention facilities are not fit for purpose, and narrowing the availability of immigration bail will only make the situation worse.

The uncertainty of indefinite detention is cruel not only for the detainee, but for family members waiting for them at home. Research by Bail for Immigration Detainees, which helps 3,500 detainees to apply for bail every year, shows that children of detainees are often British citizens, and suffer a range of physical and mental effects due to separation from their parent. Those are compounded by further, unexpected separation. For those children, cutting off the prospect of bail will lead to further mental ill health and suffering.

The majority of people in detention do not need to be there. More than 60% of people taken into detention are eventually released, their detention having served no purpose, at a cost of £76 million a year, according to Matrix Evidence research. BID has said that the Home Office repeatedly breaks the law and detains people unlawfully. In the past two years, the Home Office has paid out £15.1 million to 584 people whom it had detained unlawfully.

The clause will make it tougher for people to get bail and leave them trapped in detention for longer. The Government have committed to reducing detention, but this measure is counter to their own rhetoric. It means less justice for detainees, more harm for vulnerable refugees and more wasted costs for the taxpayer. That is why Labour opposes the clause.

[Stuart C. McDonald]

As I said in my intervention on the Minister, the decision has to be based on whether there is a reasonable prospect of imminent removal, and included in that is the question of the likelihood of the person absconding if bail is granted. If any historical non-compliance has any sort of relation to that question—if it is relevant—the tribunal will obviously already be able to take it into account. Today, the Minister is asking us to tell the decision makers to take into account historical non-compliance even where it has absolutely no bearing, in the decision maker’s view, on the fundamental question of whether someone should be interned. That is moving from weighing up those considerations in the question about removal to using detention almost as a form of punishment. It is completely unjustified, and I echo what the shadow Minister has said.

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

Nationality and Borders Bill (Eleventh sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Jonathan Gullis]

I appreciate your patience, Sir Roger, and of course I will.

I will wrap up quickly by saying that clause 37 tells people that if they enter this country illegally, it will count against them. That is exactly what we should be doing, and I look forward to seeing that progress. Ultimately, we have illegal economic migrants making the journey across the English channel from Calais. The French need to do more, and the threat from the Home Secretary of not sending the additional £54 million has clearly worked—suddenly, I have never seen so many videos and photographs of French activity on their shores to try to prevent the small boats from leaving. It is about time that the French stood up and did what was right, because it is British taxpayers’ money that is funding the additional support they need.

This is about stopping the illegal economic migrants who are funding criminality by putting money into the hands of criminal people-smuggling gangs. That is probably funding wider criminality in the United Kingdom, particularly drugs in our community, and therefore it is right that we stop them. Let us not forget that 70% of those making these illegal crossings are men aged between 18 and 35, whereas we want to be protecting women and children. We have done that in Afghanistan and with Syria: the safe and legal routes are the appropriate way of doing it.

Clause 37 is saying to those illegal economic migrants that we need to make sure they go through those safe and legal routes, or, as Baroness Scotland—the former Labour Minister, back in the years when the Labour party was electable—said, they should be claiming asylum in the first safe country they reach. There is nothing wrong with Greece, Italy or France. I am more than happy to holiday there, and I am sure anyone in mainland Europe would be more than happy to make such a place their home.

[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.

--- Later in debate ---

Assisting unlawful immigration or asylum seeker

[Bambos Charalambous]

I beg to move amendment 33, in clause 38, page 37, line 22, leave out subsection (2).

This amendment deletes the subsection which removes “and for gain” from section 25A(1)(a) of the Immigration Act 1971. Currently, under section 25A(1)(a), a person commits an offence if the person knowingly “and for gain” facilitates the arrival in the UK of an individual who the person knows, or has reasonable cause to believe, is an asylum seeker. This amendment preserves the status quo.

Following on from clause 37, clause 38 proposes to remove the words “and for gain” from section 25A of the Immigration Act 1971. Presently, under section 25A(1), it is an offence for a person knowingly and for gain to facilitate the arrival or entry, or attempted arrival or entry, of an asylum seeker into the UK. Clause 38 therefore seeks to broaden the section 25A offence to allow the Home Office to charge more people for facilitating the arrival of asylum seekers to the UK. Under the clause, someone acting purely altruistically to help an asylum seeker would be committing a criminal offence. It extends who could be convicted of the offence of knowingly facilitating the entry to the UK of an asylum seeker to individuals acting out of compassion for other people for no financial benefit.

As the Committee will know, the clause has received widespread criticism, and rightly so. I am not, for example, the first to observe that clause 38 would almost certainly have criminalised and prosecuted the likes of Sir Nicholas Winton for his life-saving actions in rescuing hundreds of children on the Kindertransport in 1939. Indeed, in July, when the Bill passed its Second Reading, many highlighted that clause 38 is so draconian that it could criminalise the Royal National Lifeboat Institution and its volunteers for helping those in danger at sea. If they were deemed to be facilitating asylum seekers’ arrival in the UK, they could face life imprisonment—life in prison for saving lives! I ask the Minister and this Committee: when did saving lives become a criminal offence?

These measures will criminalise friends, family members and individuals with humanitarian motives. The Minister’s predecessor, the hon. Member for Croydon South (Chris Philp), attempted to provide reassurance on Second Reading by claiming that the Government have

“no intention in this Bill to criminalise bona fide, genuine rescue operations”.—[Official Report, 20 July 2021; Vol. 699, c. 915.]

However, the Bill as it is currently written does not provide any similarly explicit reassurances.

The Refugee and Migrant Children’s Consortium is especially concerned about the clause and its impact on people who provide assistance to vulnerable young people seeking asylum. It is concerned that such measures must in no way serve to deter people from saving the lives of babies and children at sea, with tragic examples demonstrating the cost of there being no safe and legal routes to the UK for families fleeing persecution. The Opposition have repeatedly drawn attention to that in Committee.

For asylum seekers who assist each other in coming to the UK to claim asylum, the implications of this measure are incredibly serious. Clause 38 increases the penalty for this offence to life imprisonment. These increased sentences, as raised by Zoe Gardner of the Joint Council for the Welfare of Immigrants in one of the Committee’s evidence sessions, risk being used to prosecute asylum seekers themselves, not the smuggling gangs and members of international criminal gangs they are intended for.

For example, according to the National Crime Agency, there is evidence that asylum seekers can often be forced to carry out work without pay for smuggling gangs. In an investigation by The Independent newspaper, migrants reported traffickers taking their money for crossings to the UK, only to then demand that they work for free in order to make the journey, and that work includes being forced to steer vessels during dangerous crossings.

In The Independent investigation, one Yemeni man demonstrated how traffickers are aware that they can criminalise asylum seekers and refugees in this way. He described the power this gives them, in that a smuggler

“told me, ‘I can kill you here, no one will identify me and I will escape.’ He took videos of me and of my friends while we were preparing boats for other journeys. He said, ‘I could now accuse you of being a smuggler, you could be in jail.’ ”

This proves how the persecuted can be coerced and controlled by these criminals, and will in turn in effect become criminals themselves under the punitive policy making of the Home Office.

Of course, the prosecution of victims for the crimes of their perpetrators is something that the refugee convention, drafted 70 years ago, considers. Article 31 of the convention is intended to protect refugees from prosecution for irregular entry because refugees are, by definition, forced into dangerous and risky situations during their flight. This is something the Government are deliberately trying to wash their hands of—and to do what? To pursue a reckless policy that will prosecute those who are demonstrably not criminals, but genuine asylum seekers and refugees.

It is worth considering whether clause 38 is indeed workable. As we know, clause 37 is likely to be unenforceable and clause 38 is equally, if not more, outrageous. In relation to our international law obligations, there does not appear to be any consideration of how this clause and the new expanded criminal offences in clauses 37 and 38 will be compatible with the duty of a ship to attempt to rescue persons in danger at sea. For example, article 98(1) of the United Nations convention of the law of the sea provides that every state shall require ships

“to render assistance to any person found at sea in danger of being lost”,

and

“to proceed with all possible speed to the rescue of persons in distress”.

More interestingly in relation to clause 38, paragraph 2.1.10 of the annex to the international convention on maritime search and rescue 1979—the SAR convention—explicitly obliges

“that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.”

With these rules in mind, it appears that the UK cannot legally prohibit vessels from rescuing asylum seekers at sea, and I urge the Minister to consider the Opposition’s amendment 33, which will preserve the status quo.

--- Later in debate ---

[Tom Pursglove]

I am grateful to the hon. Members for Enfield, Southgate and for Halifax for providing the opportunity to explain the difficulties involved in securing convictions for an odious crime that targets and exploits vulnerable people and allows organised criminals to thrive.

Gain can be obtained in many ways, but cannot always be proved to the evidential standard required for a successful prosecution: for example, money transfers made by other family members abroad or made cash in hand, promises of servitude by the asylum seeker or others, or the provision of assistance in the facilitation act, such as by avoiding paying a fee by agreeing to steer a small boat. It is right that all available evidence should be considered and all relevant behaviour taken into account in investigating a serious offence. We are, at present, limited by what is an unrealistic evidential requirement that does not take account of the reality of how international organised crime operates.

In amending the offence, we are mindful of the excellent work of those acting from humanitarian motives both now and in the past. I understand fully hon. Members’ concerns that the wrong people will be drawn into the investigative and judicial process. We are therefore retaining the defence available to organisations whose aim is to assist asylum seekers and who do not charge for their services. I also recognise the bravery of volunteers working for the RNLI and lifeboat crews who undertake vital work in protecting lives at sea.

I will set out my intention to amend this clause on Report to ensure that organisations such as the RNLI, those directed by Her Majesty’s Coastguard, and individuals who fulfil their obligations in rescuing those in distress at sea may continue as they do now. We also intend to ensure that this provision does not prevent those responsible for vessels from complying with their obligations if they discover stowaways on board as they journey to the UK. I understand that some members of the Committee would prefer to have those amendments ready to debate now, but the issues are complex and we must ensure that we do not inadvertently provide loopholes to be exploited by criminal gangs who will look for any means to avoid prosecution.

The effect of amendment 33 is that, by retaining the constraint and having to prove the offence was committed again, we will only rarely be able to respond to and deter those committing the offence and will continue to place an unrealistic burden on our law enforcement officers and prosecutors. I therefore ask the hon. Gentleman to withdraw the amendment, although I hope he will be reassured that I intend to table on Report an amendment to address the crux of the issues that he raised. I hope that hon. Members across the House will feel able to support the amendment that I intend to table.

[Bambos Charalambous]

I heard what the Minister said, but Second Reading was back in July and there has been plenty of time to table an amendment. What could be achieved by his amendment can easily be achieved by voting for this one, so I wish to press our amendment.

Question put, That the amendment be made.

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.

--- Later in debate ---

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.

--- Later in debate ---

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.

--- Later in debate ---

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.

Nationality and Borders Bill (Ninth sitting)

Bambos Charalambous Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[Stuart C. McDonald]

It almost certainly would, and it would meet the criteria in the Bill. However, that is not really the issue, because, as drafted, the definition of “safe country” goes way beyond who would meet those criteria in the EU. That is what I am driving at. Again, we struggle to see how clause 14 can be justified and how it can possibly be said to be appropriate or consistent with the convention. As the UNHCR put it:

“This would be a significant break from…international practice”.

Amendment 20 would simply mean that if there is no reasonable likelihood of removal to a third country in a reasonable period or there are exceptional circumstances that mean that the Home Secretary should consider the claim, then she “must” do so. As it stands, she “may” do so, but she also may not. Surely it is odd to want to give the Secretary of State the power not to consider a claim when she has decided that

“the claim should be considered”.

The amendment should probably also have taken out the reference to “exceptional circumstances”. After all, if the unexceptional circumstances suggest that the claim should be decided here, where is the logic in not doing that?

Amendment 21 sets out circumstances in which claims should, on any reasonable view, be processed here rather than attempts made to move them elsewhere. In short, if there is not an agreement with a third country that will allow for the transfer of cases, the Home Office should just get on with considering it. If the third country refuses the transfer or does not reply in three months, the Home Office should, again, just get on with considering the case. And if in the circumstances, including the best interests of any children affected, it is better for the claim to be decided here, the Home Office should get on and do it.

Amendments 18 and 22 to 24 take us to the current definition of “connection” to be introduced into law by clause 14. Amendments 23 and 24 remove from the Bill two circumstances in which it is currently said that a connection is sufficient for the purpose of the inadmissibility regime. Amendment 24 would remove what is termed “condition 5”, which is so vague as to be almost incomprehensible and allows the Secretary of State to decide that a connection has been established in an almost unlimited number of scenarios. There is reference to “the claimant’s particular circumstances” but no explanation of what is meant by that.

Amendment 23 takes out “condition 2”, so that a connection can be provided only by proper and full-blown refugee status in accordance with the convention, and not a substandard or pale imitation of it. Amendment 22 puts the full-blown refugee status as a possible connection in the clause.

Amendment 25 is similarly motivated. In short, if the making of an asylum claim in another country is to establish the connection necessary for an inadmissibility declaration, it must be the case that the protection status offered in that other country to a refugee is fully compatible with the 1951 UN refugee convention. Again, it is absolutely not enough for a substandard asylum regime to be in place, and it would be outrageous for the UK Government to say otherwise and to be seen to be tolerating the watering down of refugee rights across the globe.

All these amendments provide ways to fix the flaws in the scheme. We could also have tabled other amendments to fix the inability of anyone to challenge inadmissibility decisions on any grounds. The Government say that this is all about deterring onward movements from France and other neighbours, but the clause is drafted in a way to allow removal to any old regime, regardless of how they treat asylum seekers and refugees. That is not remotely good enough, so the Minister must accept the flaws in the drafting and engage with the UNHCR on changing them.

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

I speak in support of the Scottish National party amendments and against clause 14 standing part. Once again, we are faced with a draconian, punitive clause that we the Opposition believe risks putting vulnerable people in danger and depriving them of the protection that they deserve under international law. I will begin by setting out what clause 14 does. Again, I thank the many sector organisations that have helped us to analyse the likely impacts of the clause.

Clause 14 puts in the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through a safe country or if they have a connection to a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the United Kingdom’s asylum system for a “reasonable period”—currently defined as six months by Home Office policy—while the UK seeks to transfer them to “any other safe country”.

Before getting to the extremely problematic moral and legal aspects of clause 14, I want to draw hon. Members’ attention to the unworkable practical aspects of it. Members know that the current regime is unworkable even as it stands because the UK Government do not have returns agreements with European Union member states, namely the “safe third countries” that refugees are most likely to have passed through. With the huge backlog and delays currently in the system, it is truly impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.

Any Member who is familiar with dealing with asylum cases will be only too familiar with cases that have dragged on for years and seemingly been lost in the system, and the many refusal cases that are overturned on appeal. The current system is not working and by adding extra time to it before a case can even begin suggests a huge increase in the processing backlog. As an ex-lawyer, I know that justice delayed is justice denied, and therefore I have grave reservations about the time stipulations in the clause.

To put the Government’s actions so far into greater context, it is worth noting that in the first six months after implementation of the inadmissibility provisions of the immigration rules—they are echoed in the statutory provisions we are currently considering—the asylum claims of more than 4,500 people were put on hold by the issuance of notices of potential inadmissibility. Incredibly, the UK sought to transfer only seven of those cases—seven out of 4,500. Surely that demonstrates that the concept of inadmissibility is deeply flawed, and that attempts to enforce it by statute, as currently envisaged in clause 14, are equally flawed.

To make matters even worse, the inadmissibility rules set out in clause 14 have a far broader reach than anything that has gone before. First, let us consider the clause’s reference to a “safe third country”. The clause creates a disturbingly low standard for when a state would be considered safe for a particular claimant. The criteria are that their

“life and liberty are not threatened there by reason of their race, religion, nationality, membership of a particular social group or political opinion.”

That state must be one from which “a person” will not be removed in breach of a non-refoulement obligation under the refugee convention or the European convention on human rights, and that “a person” may apply for refugee status there and, if recognised, receive protection in accordance with the refugee convention. According to clause 14, therefore, a country could still be considered safe even if the applicant had been, or perhaps continues to be, at real risk of being subjected to human rights violations in that country which either fall short of threats to life or liberty, or to which they were not exposed for reasons of a refugee convention ground.

Equally worrying is that, according to clause 14, although that safe state must be one in which in general a person “may” apply for refugee status and receive protection

“in accordance with the Refugee Convention” ,

it is not clear from the terms of the Bill that that possibility needs to be available to the particular applicant. Given the reference in the Bill to “a person”, it appears that it may be sufficient that, in general, there is the “possibility” of applying for refugee status in that state. That is hardly reassuring. In fact, it means that the supposed “safe” third country might not be at all safe for any particular individual. That surely makes a mockery of the term “safe” as commonly understood.

In addition, in order to be found to have a connection to a safe third state, the particular applicant need not have had a reasonable opportunity to access refugee status there. It is worth examining that in more detail. The terms of the clause imply that although the state would have to be one in which, in general, the possibility existed for a person to apply for refugee status, an individual claimant could be found to be inadmissible because they had received nothing more than protection against removal, in violation of the refugee convention or article 3 of the ECHR, or had made or had a reasonable opportunity to make a “relevant claim” for such protection in that state.

Furthermore, we need to look at the use of the term “connection” in clause 14. The clause makes it clear that the mere presence in a safe state where it would have been reasonable to expect the applicant to make a “relevant claim” would be sufficient to establish a “connection”. That in turn would be enough to trigger inadmissibility. Overall, the use of the term “connection” is nothing short of Orwellian. The framing of that term suggests that it could be an otherwise unelaborated connection—in other words, in the claimant’s particular circumstances, it would have been hypothetically reasonable for them to have gone to a given state to make such a claim, even if they had never been there.

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Provision of evidence in support of protection or human rights claim

[Bambos Charalambous]

I beg to move amendment 36, in clause 16, page 20, line 8, at end insert

“, subject to subsection (1A)”

This amendment is consequential to the amendment which would remove the ability to serve an evidence notice on certain categories of person.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 37, in clause 16, page 20, line 8, at end insert—

“(1A) The Secretary of State may not serve an evidence notice on a person—

(a) who has made a protection claim or a human rights claim on the basis of their sexual orientation or gender identity;

(b) who was under 18 years of age at the time of their arrival in the United Kingdom;

(c) who has made a protection or human rights claim involving sexual or gender-based violence; or

(d) is a victim of modern slavery or trafficking.”

This amendment would remove the ability to serve an evidence notice on certain categories of person.

Amendment 153, in clause 16, page 20, line 8, at end insert—

“(1A) The Secretary of State must not serve an evidence notice on a person—

(a) who has made a protection claim or a human rights claim on the basis of sexual orientation, gender identity, gender expression or sex characteristics;

(b) who was under 18 years of age at the time of their arrival in the United Kingdom;

(c) who has made a protection or human rights claim on the basis of gender-based violence;

(d) who has experienced sexual violence;

(e) who is a victim of modern slavery or trafficking;

(f) who is suffering from a mental health condition or impairment;

(g) who has been a victim of torture;

(h) who is suffering from a serious physical disability;

(i) who is suffering from other serious physical health conditions or illnesses.”

This amendment would prevent the Secretary of State from serving an evidence notice on certain categories of people.

[Bambos Charalambous]

We are extremely worried about the implications of clause 16 and its possible effects on vulnerable people. We tabled these amendments because we wish to further understand the Government’s intention with regard to certain particularly vulnerable groups. We believe that the impact of this clause, if it remains unamended, will further retraumatise vulnerable people.

As the Committee will know, clause 16 provides for an evidence notice to be issued to a claimant requiring them to provide evidence in support of their claim before a specified date. If they fail to do so, the provision of evidence will be deemed to be “late” and the claimant will be required to provide a statement setting out their reasons for providing that evidence “late”. The consequence for not complying with the evidence notice without good reason is that a decision maker may give minimal weight to the evidence. Apart from potentially impacting on a claimant’s credibility, the late provision of evidence in respect of evidence notices, under clauses 16 and 17, and priority removal notices, under clauses 18 and 20, may prejudice the weighting that a decision maker may give to the evidence. As we will see later, clause 23 states:

“Unless there are good reasons why the evidence was provided late, the deciding authority must, in considering it, have regard to the principle that minimal weight should be given to the evidence.”

It is unclear what “minimal weight” or, indeed, a decision maker having “regard to” this principle would mean in practice.

We are therefore extremely concerned that this clause and the others alongside it may potentially compound discrimination faced by people with protected characteristics. It is well established that people with different traumatic experiences may find it more difficult to disclose on demand their experiences of persecution, especially if they lack effective access to legal advice. Indeed, the Government’s message about legal aid to PRN recipients is insufficient amid the broader gutting of legal aid for the immigration sector since the legal aid cuts in 2013. This on its own is reason to doubt that individuals are likely to receive adequate legal support in terms of submitting evidence.

The situation may be compounded for people with protected characteristics. For example, women who have experienced sexual and/or gender-based violence may find it particularly difficult to disclose information about their experiences. The Home Office itself acknowledges the particular difficulties that LGBTQI+ asylum seekers may have in substantiating their claim or providing full disclosure, including experiences of discrimination, hatred, violence and stigma.

The stipulation about late evidence in clause 16 also has profound implications for the victims of trafficking and modern-day slavery. Frontline anti-trafficking organisations have previously highlighted how lack of identification is compounded because victims of trafficking are often unaware that there is a system to protect people who have experienced exploitation. The Government’s own guidance on the national referral mechanism provides that

“Victims may not be aware that they are being trafficked or exploited, and may have consented to elements of their exploitation, or accepted their situation.”

It is highly concerning that an individual could potentially be punished for failing to give evidence on time, in that such late disclosure might affect the credibility and/or weighting given to their evidence, which in turn would adversely affect their chances of a protection or human rights claim succeeding. It is clear that this is likely to lead to compounding of the discrimination experienced by certain groups, and make it harder for them to make the best possible case for themselves.

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[Tom Pursglove]

I do not accept the hon. Gentleman’s latter point. I would expect there to be extensive training for decision makers on guidance when it is issued. Again, I make the point that the approach we are adopting is intended to be responsive to individual circumstances, and cases should be considered on a case-by-case basis. That is the entire approach we are taking here.

The shadow Minister, the hon. Member for Enfield, Southgate, raised the issue of refoulement, and I just want to be clear on this point. Again, individuals will not be removed if there is a risk of refoulement, and the provisions are drafted to ensure this.

On the point made by the hon. Member for Bermondsey and Old Southwark about legal aid, it is generally not available to individuals who are seeking advice or assistance with citizenship applications or on nationality matters. That is because it is not an issue within scope of the legal aid scheme—in other words, it is not an issue that Parliament has expressly provided for in statute as something for which legal aid can be provided.

For any issue where legal aid is not available, individuals can apply for exceptional case funding. The test for this is whether, without legal aid, an individual’s human rights might be breached. The only group of people who can routinely receive advice on nationality and citizenship are separated migrant children, as that is provided for in statute. We will come on to later clauses in which the legal aid provisions in this Bill, which relate to priority removal notices, will no doubt be debated as part of our consideration.

The hon. Gentleman also asked me whether a child rights impact assessment has been carried out on clauses 16 to 23. As part of our obligations under the public sector equality duty, equality impact assessments have been completed in respect of these clauses, and those assessments incorporate a consideration of the impacts on children.

[Bambos Charalambous]

Having looked at the amendments, I think amendment 153 is more substantive than my amendments 36 and 37. On the understanding that the spokesperson for the Scottish National party, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, will be pressing amendment 153 to a vote, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[The Chair]

I remind the Committee that this will also be considered a clause stand part debate.

[Bambos Charalambous]

As with clause 16, the Opposition are deeply concerned that clause 17 will contribute to a culture of disbelief that will harm vulnerable people who deserve our support. We will oppose the clause because we do not believe there is any way that it can be amended to be more reasonable. Clause 17 builds on the false premise established by clause 16 that evidence given after a certain date lessens the weight and, in turn, the credibility of the claimant. Clause 17 would extend that to the possible use of evidence in appeals.

Before I go further, I would like to draw the Committee’s attention once again to the startling statistics I referred to in the debate on clause 16. I do not believe they can be stated enough to illustrate the fallacy inherent in the culture of disbelief being pushed by the Government. Let me state again for the record: the proportion of successful asylum appeals allowed in the year up to March 2021 was 47%, and that has been steadily increasing over the past decade.

That is in a context where legal aid has been decimated. The Home Office is notoriously floundering with delays and a sclerotic process within the context of the hostile environment encouraged by the Government. If with those factors, nearly half of appeals are successful, how on earth can the Minister think it is fair to introduce another arbitrary hurdle for vulnerable people? What kind of civilised society implies that people who have escaped the most horrific situations imaginable are likely to be acting in bad faith? Clause 17, along with clause 16, will shame us and UK values if it reaches the statute book.

All the arguments that apply to clause 16 apply once again. As Ministers well know, there are many reasons why people who are escaping sexual abuse, gendered violence, torture and trauma cannot produce evidence by a particular date. Well-known psychological processes, such as dissociation, PTSD and denial of sexual trauma, militate against the so-called efficient delivery of evidence. That is before we get to the dysfunctional lack of legal aid and advice available, and the broken nature of the asylum system as a whole, as we discussed with reference to clause 16. Again, the Government seem to want to blame their own failings on vulnerable people, and scapegoat them for 11 years of a broken asylum system.

I will give an example of how unfair clause 17 is, and why someone’s credibility is in no way contingent on their ability to provide evidence by an arbitrary date. The example, concerning someone I will call “Gloria”, is a real case that was described to me by the excellent organisation Women for Refugee Women.

Gloria and her husband were supporters of the Opposition political party in the Democratic Republic of the Congo. When the Government started to suspect that her husband was talking to journalists about human rights abuses, they targeted both him and Gloria. Gloria was raped by soldiers and taken to prison. Upon release, she and her husband fled the Congo, but they were forced back into the DRC and targeted by the Government again. Gloria was violently raped again by several soldiers and held in a detention centre from where she was trafficked to the UK.

When she arrived here, Gloria was detained in a house and forced to have sex with several men for weeks, until a cleaner helped her to escape. This woman encouraged her to claim asylum, but Gloria was too scared to talk about her traffickers in the interview, so she could not explain why she had not claimed asylum earlier. Her male interpreter at the interview did not speak Lingala fluently and got angry with her when she tried to clarify points. She had no mental health support so was unable to discuss the extreme sexual violence she had experienced, and her lawyer never explained to her that the experience of being trafficked was relevant to her claim.

Gloria was refused asylum and taken to Yarl’s Wood, which she found highly traumatic, given her previous experience of incarceration in the DRC. She was released from Yarl’s Wood and then came to seek help from Women for Refugee Women, as she was homeless. She joined one of the organisation’s creative projects and, over time, began speaking about her story. Gloria now has a positive reasonable grounds decision and is preparing further submissions for a fresh asylum claim. Under clauses 16 and 17, Gloria could be prohibited from presenting evidence of the violence that she faced, with the ultimate risk of being returned to her persecutors. Gloria continues to suffer from post-traumatic stress disorder, depression and suicidal thoughts.

Surely when hearing of cases such as Gloria’s, Ministers must pause and realise that provisions such as clause 17 are inappropriate. Worse than that, calling into question the credibility of people who are traumatised is severely harmful. As discussed with reference to clause 16, the ultimate risk of undermining the credibility of applicants and denying the validity of their evidence is refoulement and is in contradiction of the refugee convention.

The one-stop process being proposed in the group of clauses that include clause 17 would force traumatised women to raise all the reasons why they need protection at the outset. If they fail to do so, their credibility could be damaged, according to the clause. It is worth stating again that, as with clause 16, this goes directly against the Home Office’s guidance, which states that late disclosure should not automatically prejudice a woman’s credibility.

As highlighted, moreover, many women do not realise that their experiences of gendered violence may constitute an asylum claim. Poor legal advice compounds that problem, so women do not raise these experiences in their initial claim. Clauses 16, 17 and 23 will result in more women being wrongly refused protection and so becoming liable for detention.

Clauses 16, 17 and 23 create a mechanism that forces people to produce relevant evidence by a fixed date. If that deadline is missed, the evidence could be given “minimal weight”, which will impact on a decision maker’s assessment of an applicant’s LGBT+ status and/or whether they have a well-founded fear of persecution. That would be acutely detrimental to LGBT+ people because of the difficulties in gathering and providing evidence that helps to 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 not only in their countries of origin, but in the UK. Further, it can be an enormous challenge, if not impossible, to obtain supporting evidence from former partners, friends or family members in their country of origin, who can be too afraid to write a witness statement. For trans people specifically, many are unable to access healthcare in their countries of origin and to receive timely support in the UK, and, again, struggle to offer supporting evidence as a result.

If LGBT+ people get evidence such as letters from those who can testify to their sexual orientation or gender identity, proof of membership of LGBT+ organisations or photos at Pride, it may not be until they are more comfortable and confident in being open about their sexual orientation or gender identity, and therefore easily after any deadlines for evidence are imposed by the Home Office.

Clauses 17, 20 and 23 direct or encourage decision makers, including immigration judges on appeal, to exclude evidence or reject the credibility of a claimant. That exclusion or rejection is arbitrary. It is not on the basis of the decision maker’s assessment of the relevance or probity of the evidence or truthfulness of the claimant. It is not on the basis of any individual assessment of all the relevant material and circumstances.