Draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2023

Kevin Foster Excerpts

Wednesday 1st March 2023 General Committees

[The Minister for Immigration (Robert Jenrick)]

I beg to move,

That the Committee has considered the draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2023.

It is a pleasure, as always, to serve under your chairmanship, Sir Robert. The instrument was laid before Parliament on 2 February. It deals with two important issues. First, I will touch on the deprivation provisions. Maintaining our national security and keeping the public safe are of paramount importance to the Government, and that is why deprivation of citizenship when it is conducive to the public good is deployed for those who pose a threat to the UK or whose conduct involves very high harm.

The power to deprive an individual of their British citizenship has existed in law for over a century, since the British Nationality and Status of Aliens Act 1914; it is currently found in section 40 of the British Nationality Act 1981. When passing deprivation measures in the Nationality and Borders Act 2022, the House agreed that in cases when the Secretary of State intends to make a deprivation order without prior notification, on the grounds that it is conducive to the public good, an application must be made to the Special Immigration Appeals Commission, which will consider the Secretary of State’s reasons not to give notice.

To implement that process, we first made amendments to the Special Immigration Appeals Commission Act 1997 in November last year. Those amendments gave the Lord Chancellor the power to amend procedure rules in relation to those applications. Using that power, we now intend to make the necessary amendments to the Special Immigration Appeals Commission (Procedure) Rules 2003. That will set clear guidelines for the Secretary of State and the Special Immigration Appeals Commission when dealing with applications under the new process.

The instrument will specify the information that must be included in applications and make provision for the Secretary of State to vary or withdraw an application. It also confirms that

“the Secretary of State is the only party to proceedings”,

and makes provision for the Secretary of State to appeal a determination of the Special Immigration Appeals Commission. The instrument also sets out that the Special Immigration Appeals Commission must give a determination within 14 days of receiving the application or its variation. That reflects the fact that the Secretary of State might have to act very swiftly in the interests of national security.

The instrument is the final stage in implementing the safeguards relating to section 10 of the Nationality and Borders Act, which the House agreed to during the passage of the Act.

[Kevin Foster (Torbay) (Con)]

The Minister has given an excellent explanation of the safeguards in the process, which will be enhanced by the instrument. Does he recall some of the scaremongering during the Nationality and Borders Act debates about how there would somehow be no oversight of how the deprivation provisions would be used? Actually, this is about dealing with some of the worst threats to our national security—who may literally be in war zones, where it is impossible to serve a notice on them.

[Robert Jenrick]

I certainly do. I pay tribute to my hon. Friend, who was my predecessor and played a critical role in the passage of the Nationality and Borders Act. He is right to say that the suggestions made during the passage of that Act were spurious and wrong and also that the power will be used in the most judicious way to tackle some of the gravest threats to our national security. Examples might include an individual who our security services have reliable evidence is a secret agent acting against the interests of the United Kingdom, whose passport and citizenship we would want to remove, but who—for obvious reasons—we might struggle to locate. Therefore, we would have to use this special procedure to remove their citizenship at short notice.

As I hope I have made clear in my opening remarks, my hon. Friend is also right to say that the special procedure comes with a very clear safeguard: before the Secretary of State issues any of these notices, it will go before a specialist tribunal judge, who will make a statement on the case saying it is clearly correct and valid.

I turn to credibility statements, the second element covered by the statutory instrument. Sections 19 and 22 of the Nationality and Borders Act 2022 create additional behaviours that should result in an asylum or human rights claimant’s credibility being damaged. That includes a requirement for decision makers to consider the late provision of evidence without good reason in response to an evidence notice or a priority removal notice as behaviour that should be damaging to a claimant’s credibility.

As part of the suite of measures being introduced to encourage the timely provision of evidence in support of asylum and human rights claims, sections 19 and 22 of the Nationality and Borders Act establish a new requirement in the procedure rules of both the Special Immigration Appeals Commission and the Immigration and Asylum Chamber. When judges dispose of asylum and human rights decisions, and when credibility issues arise, they must include in their decisions a statement of how they have taken into account all the potential credibility-damaging behaviours.

The changes to the procedure rules of the Special Immigration Appeals Commission effectively secure what judges are already required to do according to current case law. However, this instrument and the creation of new procedure rules will make it abundantly clear what judges are required to do, and that will ensure that there is clear and efficient decision making in these important matters. I commend the draft rules to the Committee.

--- Later in debate ---

[Robert Jenrick]

I have not heard any suggestion that there are insufficient judges. This type of case would be heard by the most experienced judges in SIAC, as the right hon. Lady would expect, given that these are some of the most complex cases that will ever come before them.

[Kevin Foster]

The Minister will obviously be aware that these decisions are taken on the basis of extensive files and evidence. On disapplying the notice requirement, for example, there is still a full appeals process so that if someone feels that the decision is incorrect, they can appeal it. To be clear, there are plenty of opportunities for oversight and ensuring that the decisions are proportionate and fair. As the Minister rightly said, this is done only in the most serious cases.