Nationality and Borders Bill (Fourteenth sitting)
Debate between Craig Whittaker and Bambos Charalambous(3 years ago)
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Craig Whittaker
Clause 61 is one of six clauses drafted as placeholder clauses, as we have said. New clause 11 is intended to replace clause 61. The new clause makes changes to the Special Immigration Appeals Commission Act 1997 that are required to safeguard sensitive material. Current legislation allows for any immigration appeals and those judicial review challenges against exclusion, deportation or naturalisation and citizenship decisions to be certified so that they are heard by the Special Immigration Appeals Commission if certain criteria are met. Where a case is heard by the Special Immigration Appeals Commission, sensitive information can be relied upon to defend the decision which, if publicly disclosed, would be damaging to the public interest.
Not all immigration decisions can currently be certified, however. For example, a person refused entry clearance as an investor, or who is seeking to work or study in the UK, cannot have their judicial review challenge to that refusal decision certified for SIAC. In contrast, a person appealing a decision to refuse them asylum could have the appeal against the refusal of their claim certified. The effect of not being able to certify a decision is that where there is a judicial review challenge to that decision a range of sensitive information that might otherwise be used to defend that challenge cannot always be disclosed. That has the potential to be damaging to national security.
The new clause will extend the power to certify immigration decisions to cover those cases that carry no right of appeal and where a JR challenging the decision cannot currently be certified. That will ensure that the JR can be heard before the Special Immigration Appeals Commission. The test for certifying immigration decisions is not being changed by the new clause. It will still require the Secretary of State to certify that the decision being taken relies partly or wholly on information that, in her opinion, should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.
Bambos Charalambous
New clause 11, which replaces clause 61, significantly expands the jurisdiction of the Special Immigration Appeals Commission. On the face of it, this is a highly draconian measure that has been introduced at a very late stage in the Bill’s passage through Parliament, limiting the scrutiny. The new clause will enable SIAC to consider applications and set aside immigration decisions where the Secretary of State certifies that information on which her decision is partly or wholly based should not be made public on national security grounds, in the interest of the relationship between the UK and another country or otherwise in the public interest.
That means that information relating to the decision will not only not be made public; it will also not be provided to the person to whom the decision applies. If we unpick that, the cases to which the new clause applies include a decision of the Secretary of State concerning an entitlement to enter, reside in or remain in the UK, or a person’s removal from the UK. We are therefore talking about not only immigration decisions but nationality decisions. The extended powers in the new clause affect not just foreign nationals but British citizens, and do not concern merely migrants but residents. It is a huge expansion of power, and when combined with broad interpretations of the public interest, as mentioned, the power will put British citizens and others with the right to remain at risk of being excluded from the UK. They will also be left with no information regarding why that decision has been made, because the Government believe that it is in the public interest to withhold it from them.
The new clause is not limited to cases where a person’s entitlement to enter or stay in the UK is said to be in the interest of national security; it applies also to cases where the denial is authorised by information that the Secretary of State says is in the public interest—information that is kept from the person affected. How are any of those people, including the British citizens, able to defend themselves against expulsion, or even exile, in such circumstances? The power given to the Secretary of State is enormous, and in practice the measures will curb justice by allowing the Secretary of State to process appeals by SIAC, instead of normal processes, denying people their rights to a full case.
The sector has long expressed concerns about the powers and procedures of SIAC, but the Government are seeking to extend the powers even further. It follows that the wider escalation of the Home Office power in the Bill, which will have a devastating consequence for vulnerable people, will also provide the lead for others to promote and encourage similar draconian measures in their immigration and asylum systems. We are opposed to new clause 11, because it will significantly expand the powers of SIAC and put British citizens—and other people who have or seek an entitlement to enter, reside or remain in the UK—at risk of being excluded from the UK or of being treated as having no right to be here.
Craig Whittaker
Let me address a couple of points. Basically, the hon. Gentleman is asking whether SIAC involves a further erosion of civil liberties. The direct answer to that is no—if anything, it is quite the opposite. New clause 11 allows the specialist court the ability to consider all evidence relied on to ensure that cases may be both brought and properly defended. In addition, the special advocate system, the disclosure procedure used in such hearings and other safeguards are designed to provide individuals with substantial measures of procedural justice in their difficult circumstances when, in the public interest, material cannot be disclosed to them directly.
Question put and negatived.
Clause 61 accordingly disagreed to.
Clause 62
Tribunal charging power in respect of wasted resources
Question proposed, That the clause stand part of the Bill.
Bambos Charalambous
I will also speak to clause 63, because the two clauses seem to be interconnected.
We think that these provisions are unnecessary and should be removed from the Bill. The Government’s proposals in both clauses are unnecessary. The Bill requires the tribunal procedure committee to give the tribunal the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person, for
“improper, unreasonable or negligent behaviour”.
This broad formulation could have a chilling effect on the willingness of solicitors to take on difficult cases, for fear of risking personal financial liability. That may also extend to Home Office presenting officers who would similarly be liable under the measure.
The immigration tribunals already have all the case management, costs and referral powers that they need to control their own procedure. Giving new powers to immigration tribunals without establishing a basis in evidence for them is not warranted. The clauses will therefore make it harder for lawyers acting for people with immigration cases to do their job in immigration tribunal hearings.
Immigration law practitioners fulfil a key role in enabling access to the courts and therefore access to justice, so that a person who is the subject of an immigration decision may make their case properly and seek vindication. Lawyers, both solicitors and barristers, play an important role in facilitating the smooth functioning of the asylum process, helping their clients to navigate the system and providing an additional layer of filtering against meritless cases.
All lawyers have a responsibility to uphold the rule of law and are strictly regulated by several bodies to ensure that they act to the highest professional standard. As a former lawyer myself, I am aware of the rigorous regulatory regime of the Solicitors Regulation Authority, which includes duties to the court and duties of integrity. Solicitors also act in the best interests of their client, and that is vital in ensuring effective access to justice. Those who provide services to people seeking asylum in England and Wales are also likely to be doing so on a legal aid basis, for which the Legal Aid Agency provides a further means of scrutiny and oversight.
In acting for people subject to immigration control, among other things, immigration lawyers work with clients who may lack funds and legal aid entitlements; whose documents may be incomplete, missing or badly translated; and whose statements as to their past experiences may be hard to secure, on account of the ill treatment they have suffered in their country of origin.
In addition, much is at stake in immigration proceedings. A person subject to immigration control who loses their case may be subject to expulsion from the UK and face a risk of harm in their country of origin. They may be separated from their family, or may lose the life they have built up in the UK over many years, leaving their lawyer in the position of making difficult but arguable points on their behalf. The proposals in clauses 62 and 63 of the Bill will only make that task harder.
Labour shares the concerns of the Immigration Law Practitioners’ Association and the Law Society that immigration lawyers are being needlessly targeted by the new costs orders and charge orders, which are not necessary and do not apply in other areas of law. Immigration tribunal judges already have all they need by way of case management powers, costs powers and referral powers. Making the task of immigration lawyers harder prejudices access to justice, and has not been shown to be necessary by the evidence.
Craig Whittaker
Does the hon. Gentleman not agree that costs orders will only be made where representatives have been badly behaved and unreasonable without justification? In those circumstances, it is right that a representative should be required to pay wasted costs.
Bambos Charalambous
I will come on to that topic, but those powers already exist, and I do not think that further regulation of this type—forcing the tribunals committee to supply this information—is the correct way of going about this.
Craig Whittaker
Thorough consideration has been given to the impact of clause 64 and what it adds to existing requirements under immigration rules and wider provisions. We have also taken into account the views of stakeholders. After further reflection, we have decided to remove the clause from the Bill in its entirety. As a stand- alone provision, that will not impact on the wider measures in the Bill. Consequently, clause 64 requires an amendment to remove reference to it, which is the purpose of Government amendment 81.
Bambos Charalambous
This might seem innocuous but my concern is that it may be a power grab by the Secretary of State because the clause contains some quite strong measures on what the Secretary of State can do in relation to other parts of legislation. Can the Minister reassure me that my fears are not borne out by the consolidation measures in clause 65?
Craig Whittaker
I can assure the hon. Gentleman that clause 65 was taken from the “Windrush Lessons Learned Review”, which is why it is in the Bill.
Nationality and Borders Bill (Fourteenth sitting)
Debate between Craig Whittaker and Bambos CharalambousTuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
Craig Whittaker
Clause 61 is one of six clauses drafted as placeholder clauses, as we have said. New clause 11 is intended to replace clause 61. The new clause makes changes to the Special Immigration Appeals Commission Act 1997 that are required to safeguard sensitive material. Current legislation allows for any immigration appeals and those judicial review challenges against exclusion, deportation or naturalisation and citizenship decisions to be certified so that they are heard by the Special Immigration Appeals Commission if certain criteria are met. Where a case is heard by the Special Immigration Appeals Commission, sensitive information can be relied upon to defend the decision which, if publicly disclosed, would be damaging to the public interest.
Not all immigration decisions can currently be certified, however. For example, a person refused entry clearance as an investor, or who is seeking to work or study in the UK, cannot have their judicial review challenge to that refusal decision certified for SIAC. In contrast, a person appealing a decision to refuse them asylum could have the appeal against the refusal of their claim certified. The effect of not being able to certify a decision is that where there is a judicial review challenge to that decision a range of sensitive information that might otherwise be used to defend that challenge cannot always be disclosed. That has the potential to be damaging to national security.
The new clause will extend the power to certify immigration decisions to cover those cases that carry no right of appeal and where a JR challenging the decision cannot currently be certified. That will ensure that the JR can be heard before the Special Immigration Appeals Commission. The test for certifying immigration decisions is not being changed by the new clause. It will still require the Secretary of State to certify that the decision being taken relies partly or wholly on information that, in her opinion, should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.
Bambos Charalambous
New clause 11, which replaces clause 61, significantly expands the jurisdiction of the Special Immigration Appeals Commission. On the face of it, this is a highly draconian measure that has been introduced at a very late stage in the Bill’s passage through Parliament, limiting the scrutiny. The new clause will enable SIAC to consider applications and set aside immigration decisions where the Secretary of State certifies that information on which her decision is partly or wholly based should not be made public on national security grounds, in the interest of the relationship between the UK and another country or otherwise in the public interest.
That means that information relating to the decision will not only not be made public; it will also not be provided to the person to whom the decision applies. If we unpick that, the cases to which the new clause applies include a decision of the Secretary of State concerning an entitlement to enter, reside in or remain in the UK, or a person’s removal from the UK. We are therefore talking about not only immigration decisions but nationality decisions. The extended powers in the new clause affect not just foreign nationals but British citizens, and do not concern merely migrants but residents. It is a huge expansion of power, and when combined with broad interpretations of the public interest, as mentioned, the power will put British citizens and others with the right to remain at risk of being excluded from the UK. They will also be left with no information regarding why that decision has been made, because the Government believe that it is in the public interest to withhold it from them.
The new clause is not limited to cases where a person’s entitlement to enter or stay in the UK is said to be in the interest of national security; it applies also to cases where the denial is authorised by information that the Secretary of State says is in the public interest—information that is kept from the person affected. How are any of those people, including the British citizens, able to defend themselves against expulsion, or even exile, in such circumstances? The power given to the Secretary of State is enormous, and in practice the measures will curb justice by allowing the Secretary of State to process appeals by SIAC, instead of normal processes, denying people their rights to a full case.
Bambos Charalambous
I will also speak to clause 63, because the two clauses seem to be interconnected.
We think that these provisions are unnecessary and should be removed from the Bill. The Government’s proposals in both clauses are unnecessary. The Bill requires the tribunal procedure committee to give the tribunal the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person, for
“improper, unreasonable or negligent behaviour”.
This broad formulation could have a chilling effect on the willingness of solicitors to take on difficult cases, for fear of risking personal financial liability. That may also extend to Home Office presenting officers who would similarly be liable under the measure.
The immigration tribunals already have all the case management, costs and referral powers that they need to control their own procedure. Giving new powers to immigration tribunals without establishing a basis in evidence for them is not warranted. The clauses will therefore make it harder for lawyers acting for people with immigration cases to do their job in immigration tribunal hearings.
Immigration law practitioners fulfil a key role in enabling access to the courts and therefore access to justice, so that a person who is the subject of an immigration decision may make their case properly and seek vindication. Lawyers, both solicitors and barristers, play an important role in facilitating the smooth functioning of the asylum process, helping their clients to navigate the system and providing an additional layer of filtering against meritless cases.
All lawyers have a responsibility to uphold the rule of law and are strictly regulated by several bodies to ensure that they act to the highest professional standard. As a former lawyer myself, I am aware of the rigorous regulatory regime of the Solicitors Regulation Authority, which includes duties to the court and duties of integrity. Solicitors also act in the best interests of their client, and that is vital in ensuring effective access to justice. Those who provide services to people seeking asylum in England and Wales are also likely to be doing so on a legal aid basis, for which the Legal Aid Agency provides a further means of scrutiny and oversight.
In acting for people subject to immigration control, among other things, immigration lawyers work with clients who may lack funds and legal aid entitlements; whose documents may be incomplete, missing or badly translated; and whose statements as to their past experiences may be hard to secure, on account of the ill treatment they have suffered in their country of origin.
In addition, much is at stake in immigration proceedings. A person subject to immigration control who loses their case may be subject to expulsion from the UK and face a risk of harm in their country of origin. They may be separated from their family, or may lose the life they have built up in the UK over many years, leaving their lawyer in the position of making difficult but arguable points on their behalf. The proposals in clauses 62 and 63 of the Bill will only make that task harder.
Labour shares the concerns of the Immigration Law Practitioners’ Association and the Law Society that immigration lawyers are being needlessly targeted by the new costs orders and charge orders, which are not necessary and do not apply in other areas of law. Immigration tribunal judges already have all they need by way of case management powers, costs powers and referral powers. Making the task of immigration lawyers harder prejudices access to justice, and has not been shown to be necessary by the evidence.
Craig Whittaker
Does the hon. Gentleman not agree that costs orders will only be made where representatives have been badly behaved and unreasonable without justification? In those circumstances, it is right that a representative should be required to pay wasted costs.
Bambos Charalambous
I will come on to that topic, but those powers already exist, and I do not think that further regulation of this type—forcing the tribunals committee to supply this information—is the correct way of going about this.
Craig Whittaker
Thorough consideration has been given to the impact of clause 64 and what it adds to existing requirements under immigration rules and wider provisions. We have also taken into account the views of stakeholders. After further reflection, we have decided to remove the clause from the Bill in its entirety. As a stand- alone provision, that will not impact on the wider measures in the Bill. Consequently, clause 64 requires an amendment to remove reference to it, which is the purpose of Government amendment 81.
Bambos Charalambous
Am I right that the Government will vote against the clause?