Nationality and Borders Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it is important to see this Bill in its broader context, particularly in the light of the Judicial Review and Courts Bill, which is currently proceeding in the other place. Together, the two Bills make a group of changes that cumulatively are more significant than the sum of their parts, and the consequences need to be considered together to examine the proportionality, fairness and wisdom of both Bills.

I shall give an example of the reforms made by the two Bills. Say that a gay man has fled from an oppressive, homophobic regime and has arrived in the UK. On presenting himself to immigration authorities to claim asylum, he is too ashamed to admit his homosexuality because of homophobia in his home country and within his own family. He therefore declines to raise his homosexuality as a ground for asylum. Instead, he raises a more general claim that he is unsafe, without giving specific evidence of his vulnerability. His asylum claim is refused, with the Home Office deciding that he could safely live in another part of the country where the regime has a weaker stronghold. He is therefore liable to be removed from the UK.

There are two options available to the Home Office under these Bills, both of which place the asylum seeker in a weaker position of protection and safety. Option one is that the Home Office could issue the refugee with a priority removal notice under Clause 19 of the Nationality and Borders Bill. This would require him to provide a statement, along with evidence, about why he should not be removed. Under Clause 24 of the Bill, the refugee is entitled to only seven hours of legal advice to assist him to set out his reasons and his evidence for remaining in the UK. Under Clause 21, if the refugee does end up admitting his homosexuality but after the cut-off date, any evidence provided by him on this matter must be treated as having minimal credibility by the Home Office unless he can provide good reasons. Based on this credibility rule, the Home Secretary might certify his claim as “clearly unfounded”. Under Clause 27, where the Home Secretary certifies a claim as “clearly unfounded”, the refugee’s right of appeal is entirely abolished. He could not appeal inside or outside the UK, although he could seek a separate judicial review of his decision.

Even if the Home Secretary declines to find the claim “clearly unfounded”, Clause 22 of the Bill will kick in. This provides for expedited immigration appeals, whereby any appeal made by the asylum seeker will go straight to the Upper Tribunal, rather than the First-tier Tribunal. If a person loses in the Upper Tribunal, there is no right to appeal to the Court of Appeal or the Supreme Court. Therefore, if the Upper Tribunal makes the wrong decision, the man is again at risk of removal. A series of procedural changes therefore increases the risk of an adverse decision against a legitimate asylum seeker.

In the second option, if the Home Secretary does not issue a priority removal notice under the Nationality and Borders Bill, she may nevertheless issue a removal notice under existing legislation. In addition, if the Home Secretary does not require an expedited appeal under Clause 22 of the Bill, the case will also be dealt with using this second option. If the Home Office does not uphold the individual’s claim for asylum, he can appeal to the First-tier Tribunal. However, if the First-tier Tribunal makes an error of law when deciding on the case and the Upper Tribunal refuses permission to hear an appeal despite the error of law, Clause 2 of the Judicial Review and Courts Bill will mean that the individual could not ask the High Court to overturn this error of law, because this clause abolishes the so-called Cart judicial reviews that used to be available in these circumstances. Therefore, the same consequences follow as for option one. The asylum seeker is liable to be removed to a country where he could suffer inhumane treatment because of the weakened procedural procedures between these two Bills.

Taken together, the two Bills weaken the UK’s compliance with international asylum laws and reduce natural justice and procedural fairness for those who need it most and at the time they need it most.