Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024

Lord Sharpe of Epsom Excerpts

Tuesday 19th March 2024 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations laid before the House on 8 November 2023 be approved.

Relevant document: 4th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I beg to move that the House approves these regulations, which were laid before Parliament on 8 November 2023. The regulations seek to add Georgia and India to the list of safe countries of origin at Section 80AA(1) of the Nationality, Immigration and Asylum Act 2002, as inserted by Section 59 of the Illegal Migration Act 2023, once commenced.

The declaration of inadmissibility of asylum claims from EU nationals has been a long-standing process in the UK, also employed by EU states. Under Section 80A of the Nationality, Immigration and Asylum Act 2002, the Secretary of State must declare an asylum claim made by a national of an EU member inadmissible unless there are exceptional circumstances which mean that the Secretary of State ought to consider the claim. These provisions reduce pressure on our asylum system and allow us to focus on those most in need of protection, but EU states are not the only countries that are safe countries.

Once Section 59 of the Illegal Migration Act 2023 is commenced, these provisions will be expanded to include the inadmissibility of asylum and human rights claims from other states considered generally safe. The Section 80AA(1) list of safe countries of origin comprises the EU states as now and adds the other EEA states of Iceland, Norway and Liechtenstein, as well as Switzerland and Albania. Once Section 59 of the Illegal Migration Act 2023 is commenced, asylum and human rights claims from nationals of these countries will be declared inadmissible, unless it is accepted that there are exceptional circumstances that mean a claim ought to be considered in the UK.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, these regulations mark a step towards the implementation of the few parts of the Illegal Migration Act 2023 that have come into force since it received Royal Assent. The key sections on the duty to detain and remove asylum seekers arriving by small boat, among other provisions, have apparently been accepted as unworkable by the Government, at least for the time being.

The current list of safe countries of origin from which it is expected that, in general, people will not have grounds for asylum in the UK is set out in Section 80AA of the 2002 Act, as amended by Section 59 of the Illegal Migration Act, as was explained by the Minister. Historically, during the time in which the UK was part of the EU, the designation of safe countries of origin applied mostly to other EU and European Economic Area member states. Those countries remain on the list, with the more recent addition of Albania, and with Georgia and India now marking the first significant expansion of that list beyond the EU and the EEA.

We support these changes in principle, notwithstanding a few important questions. It is right that the Government go into some detail about how these changes would work in practice and how Indian and Georgian nationals, who under exceptional circumstances face harm or death, can still seek refuge in our country. The grant rate for Indian asylum seekers has stayed at under 10% in recent years, but for Georgia it has swayed between 15% and 30%. I understand that there are fewer applications from Georgia in numerical terms, but it would be useful to hear from the Minister how those successful applications translate into appropriate cases of exceptional circumstances in the future.

There is little detail on how exceptional circumstances would apply. The example tests for exceptional circumstances set out in the 2002 Act will not apply to India and only one—the ECHR test—will apply to Georgia. The Government have stated to the Secondary Legislation Scrutiny Committee that guidance will be published to caseworkers in due course. Do the Government mean to say that the guidance does not currently exist? How are decisions made now, before that guidance is in place?

As others, including the noble Lord, Lord German, have pointed out, given that the Home Office’s own policy notes on India speak of the existence of serious human rights abuses, including rape, torture and death—and, for Georgia, they note politically motivated prosecutions —it is vital that discretion can be exercised for individuals in those countries in appropriate circumstances.

I hope that the Minister can outline today how this guidance will work, whether it will be in place when these regulations come into force and whether it will be published. Can he also outline what is being done to improve returns rates for both Indian and Georgian nationals? The UK has migration returns agreements with both countries, but the current returns rate of Indian nationals seeking asylum stood at less than 7% in the year to September 2022. Can he outline what the returns rate is so far for Georgia, given that it has been a year since the bilateral returns agreement was signed? Depending on his answer to that question, and given the low rate of Indian national returns, can he outline what the Government are doing to improve returns rates for both countries? Finally, can he say how the introduction of this list impacts outstanding claims? Will it apply simply to new claims, or will it be retrospective? I look forward to his replies.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have contributed to this relatively short debate. These regulations, by themselves, do not introduce a new process or policy. It is not for us to debate today the safe country of origin inadmissibility provisions; those provisions have been a long-standing part of our asylum laws and have been expanded via the Illegal Migration Act 2023. These regulations seek to expand this list further to incorporate Georgia and India as generally safe. I acknowledge that, in considering whether it is appropriate to do so, questions have been asked today about how the list will be used.

The inadmissibility of asylum and human rights claims from nationals of safe countries aims to deter abuse of our asylum system from those who would seek to abuse it and do not need to seek protection in the UK. It will reduce pressure on the asylum system and allow us to focus on those most in need of protection. Treating asylum claims from EU nationals in this way is not new: it has been a long-standing process in the UK asylum system that is also employed by EU states. But EU states are not the only countries that are safe countries; therefore, it is right that these provisions have been expanded through the Illegal Migration Act 2023.

Once commenced, Section 59 of the 2023 Act introduces the new Section 80AA(1) safe countries of origin list, so that these provisions would apply not only to EU nationals but, as I mentioned in my opening remarks, to those from the other EEA states of Iceland, Norway and Liechtenstein, as well as Switzerland and Albania.

For a country to be added to the list of safe countries of origin, it must be assessed as safe as per the criteria set out in the new Section 80AA(3) of the 2002 Act, as inserted by Section 59 of the Illegal Migration Act. The test sets out that a country may be added to the list if

“(a) there is in general … no serious risk of persecution”

there for nationals of that country,

“and (b) removal … of nationals of that”

country

“will not in general contravene the United Kingdom’s obligations under the”

European Convention on Human Rights.

We do not draw conclusions on the general safety of a country based on information from single sources or isolated examples. Whether a country is safe for the purposes of inclusion in Section 80AA(1) is an assessment of whether the country in general is considered safe. Our assessments of the situation in the respective countries are set out in the relevant country policy and information notes, which I will come back to in more detail. Those are available on the GOV.UK website and are kept under constant review and updated periodically.

--- Later in debate ---

[Baroness D'Souza (CB)]

Is the Minister able to name the human rights organisation that has deemed the countries safe?

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not have that information. As I said, all the information we use is published on GOV.UK.

Regarding reporting from single sources, or drawing on isolated examples, these might not consider the situation in context or be reflective of the general situation, which is what we are required to consider. We consider evidence from a wide range of sources and source types, as I have said. We compare and contrast information across those sources to reach a balanced and, we believe, accurate view of the situation.

We recognise, of course, that groups such as Human Rights Watch and Amnesty International produce reports that are sometimes critical of human rights records. We also consider what sources are reporting as well as how, when and why they have reported. This assessment and the inclusion of these countries on the list will be regularly monitored and reviewed.

The noble Baroness, Lady D'Souza, asked about the ongoing investigations by Canada and the US into alleged Indian state involvement in various activities. We remain in close touch with our Canadian and US partners about what are very serious allegations. However, I am afraid it would be inappropriate to comment further during the ongoing investigations by their law enforcement authorities.

Even if a country is generally considered safe, it is acknowledged that there could be exceptional circumstances in which it may not be appropriate to return an individual in their particular circumstances. That is why the consideration of exceptional circumstances, incorporated into the safe country of origin inadmissibility provisions, will act as an appropriate safeguard. Where the Secretary of State accepts that there are exceptional circumstances why the person may not be removed to their country of origin in an individual’s particular circumstances, they will not be.

Once Section 59 of the Illegal Migration Act is commenced, a national of a Section 80AA(1) listed country who is subject to the duty to remove or power to remove would not be removed there if it is accepted that there are exceptional circumstances as to why they cannot be removed there. They will instead be removed to a safe third country. For all other nationals of Section 80AA(1) listed countries, if there are exceptional circumstances why their claim ought to be considered in the UK, it will be.

I will deal with a couple of specific questions in terms of published guidance—

[Lord Scriven (LD)]

I am sorry to interrupt the Minister in mid-flow. The exceptional circumstance rule is absolutely vital to understanding the operation of this statutory instrument. The Act refers only to two forms of exceptional circumstances: EU law or not signing up to the European Convention on Human Rights. Could he run through the Home Office’s view on exceptional circumstances for these two countries? What is expected to be in the operational notes, which he referred to?

[Lord Sharpe of Epsom (Con)]

I was just about to get to that.

These regulations seeks to add India and Georgia to the list of countries in Section 80AA(1) of the Nationality, Immigration and Asylum Act 2002, as I have already said. They are not about the inadmissibility provisions, which already rely on the exceptional circumstances safeguard.

Section 80A already applies to EU nationals. Only when Section 59 of the Illegal Migration Act is commenced will the safe country of origin list be actionable in terms of its application to the revised inadmissibility provisions at Section 80A of the 2002 Act and to the removal provisions at Sections 4 and 6 of the Illegal Migration Act.

Section 80A(4) of the Nationality, Immigration and Asylum Act 2002 sets out some examples of what may constitute exceptional circumstances in that context. Section 6(5) of the Illegal Migration Act sets out the same examples, but these are not exhaustive, nor do they purport to be. They will not be relevant in some cases. Exceptional circumstances are not defined nor limited in legislation, but will be considered and applied on a case by case basis where appropriate. When we commence and implement the wider Section 59 measures, we will provide updated guidance to assist caseworkers in their consideration of exceptional circumstances and the wider provisions.

The noble Lord, Lord Ponsonby, asked me to go into a bit more detail on Georgian asylum applications and grant rates. I am happy to do so. In 2023, there were 1,071 applications—23% fewer than in the year before, but more than four times higher than in 2019. For cases where decisions were made, the grant rate at initial decision was 12%—based on 24 grant decisions out of a total of 205. That was lower than the grant rate of 23% the year before, but higher than the 8% in 2019. Where withdrawals, which numbered 621, were included as part of the decision total, the grant rate was only 3%, compared to 5% the year before and 2% in 2019. The grant rate for Georgians is far below the average grant rate across all asylum claims. We should note that the number of Georgian applications with an outcome in each year before 2023 was low—120 cases in 2022 and 88 in 2019. I apologise for that blizzard of statistics, but I hope it answers noble Lords’ questions.

I hope that I have satisfactorily explained the Government’s position on the inclusion of both Georgia and India in the Section 80AA(1) list of safe countries of origin. I beg to move.

[Lord German (LD)]

My Lords, if I were to ask the House to consider whether the five questions I posed have been answered in sufficient detail, I would probably have a negative answer. It is my view that we have tried to find a rationale for a workable procedure. We do not have the sort of information we would need in order to make a proper judgment. That was what the Select Committee advising this House decided. We were asked to test this out because they did not have the information to do so. I do not think we are much wiser.

It was pretty fundamental for us to know the sources of information on which the Government made their decision. If I were asked what a reasonable, workable system might be, I would say that there are people who could be safely returned. I am in favour of returning those who have no right to be here. Equally, as we have heard from the noble Baroness, Lady D’Souza, there are people who would definitely be in trouble if they were returned. These are not just individuals but groups of people. We would like to understand and know where people who, because of the group they are in, would be unsafe in going back to India and Georgia. This would aid the balance of decision-making. All the time we have talked about it being for the individual to make it clear that they believe they have exceptional circumstances, not for the Government to understand it. The danger is that people get used to what these circumstances are. If, for example, you are a Dalit and know that you are likely to be persecuted, or if you were politically active in Georgia and caused some uproar, you will soon be testing this out as an individual within a group of people. It strikes me as being unhelpful to put all those individuals who are in that circumstance through costly court and other procedures one at a time to make sure that it works.

Guidance was fundamental to the view of the Select Committee that advised us. All we know from this discussion so far is that the guidance is to be updated, but we do not know what it is. I and the noble Lord, Lord Ponsonby, asked about retrospection. Will this apply to people who have the right to have their case heard, or will it apply only to people who have come in subsequently? We did not get an answer to that question either. I would put it down as an all bar one answer to the queries that we have put so far. We are having this discussion in the Rwanda Bill and these discussions will be ongoing. If this House continues to be without the information upon which we can judge whether the procedure that the Government are adopting is correct, then the Government are in for a bumpy ride for the very few months they may have left to make these decisions.

This is a matter which we will return to and one with unanswered questions. I beg leave to withdraw my amendment.