Nationality and Borders Bill (Tenth sitting)

Paul Blomfield Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

Late compliance with priority removal notice: damage to credibility

[Paul Blomfield (Sheffield Central) (Lab)]

I beg to move amendment 139, in clause 20, page 23, line 40, at end insert—

“(3A) For the purposes of subsection (3) ‘good reasons’ include, but are not limited to—

(a) evidence of post-traumatic stress,

(b) potential endangerment to the PRN recipient caused by collecting evidence for anything mentioned in subsection (1)(a) before the PRN cut-off date.

(3B) The Secretary of State must publish guidance including a non-exhaustive list of ‘good reasons’ within the meaning of subsection (3) within 30 days of this Act receiving Royal Assent.”

This amendment would illustrate potential interpretations of “good reasons” for late compliance and require the Home Secretary to publish a non-exhaustive list of potential “good reasons” to aid asylum decisions.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 154, in clause 20, page 23, line 40, at end insert—

“(3A) The Secretary of State or competent authority must accept that there are good reasons for the late provision of anything mentioned in subsection (1)(a) where—

(a) the PRN recipient’s protection or human rights claim is based on sexual orientation, gender identity, gender expression or sex characteristics;

(b) the PRN recipient is suffering from a mental health condition or impairment;

(c) the PRN recipient has been a victim of torture;

(d) the PRN recipient has been a victim of sexual or gender based violence;

(e) the PRN recipient has been a victim of human trafficking or modern slavery;

(f) the PRN recipient is suffering from a serious physical disability;

(g) the PRN recipient is suffering from other serious physical health conditions or illnesses.”

This amendment defines “good reasons” for the purposes of subsection (3).

Amendment 41, in clause 20, page 23, line 38, leave out

“, as damaging the PRN recipient’s credibility,”

This amendment would mean that – whilst late provision of information would still be taken into account – it would not necessarily be deemed as damaging the claimant’s credibility.

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[Paul Blomfield]

I will try to be brief, because the amendments cover ground similar to our previous discussion. Clause 20 seeks to damage the credibility of claimants producing evidence outside the time period dictated by a priority removal notice. There is a general point to make here. As we all know well, completing processes in time is not really the Home Office’s strong point. What is worrying is that the provision makes things worse. As Women for Refugee Women has pointed out:

“As well as causing harm to women in desperate need of safety, these clauses are likely to lead to greater unfairness in the system, an increasing number of incorrect decisions and ultimately therefore an increase in the backlog of asylum cases.”

That is something we all seek to avoid.

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[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Does the hon. Gentleman accept that not all the delays are down to the Home Office? In many people’s view, the thousands of judicial reviews that are done, the vast majority of which fail, are there to buy more time for the applicant possibly to come up with a reason for an article 8 application.

[Paul Blomfield]

There is an exception to every rule, so I am prepared to accept that not all the problems are down to the Home Office. We discussed that issue earlier. The fact that some people may seek to abuse the system does not mean that the system should be changed to focus on those cases. We should operate on the basis that everybody has a right to access and utilise the judicial processes that are available.

As I was saying, the backlog has risen at a time when the number of asylum applications for the year ending June 2021 fell. We know that is reflected across the system; it is not just a problem with asylum. In the relatively straightforward area of EU settled status, recent data from the Home Office in response to a freedom of information request showed that, in June, more than 26,000 EU citizens had been waiting for more than a year for a decision; more than 216,000 had been waiting for more than six months; and more than 680,000 had been waiting for more than three months.

The problem of delays is endemic in the Home Office, and there were no JRs involved in those numbers. In the asylum process, delay is not only seriously detrimental to the individuals, but—we have returned to this point a number of times, and will again—hugely costly to the taxpayer, so any measure that will exacerbate rather than correct the issue is unconscionable.

The assumption behind the measures in clause 20 and related causes is that those trapped in the system are to blame, as was echoed in the exchange we just had. Blaming others is a common approach of the Government on a wide range of issues such as covid, where GPs are the lightning rod for discontent, and Brexit, where we blame everybody going other than those who negotiated the deal. That ignores the reality that those trapped in the system want decisions to be expedited as soon as they can. They want to move on with their lives. Those who are successful want to take the opportunity to work and contribute to our society.

We need more resources from the Home Office to tackle the backlog. It is welcome that there has been some acknowledgement of that. I saw that the permanent secretary said at the Home Affairs Committee last month that the Home Office is planning to almost double the number of caseworkers, which is extremely positive. It is delayed recognition of where the problem might lie, but they should not be seeking to undermine applicants, which subsection (3) of clause 20 does by specifying 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. We come again to this issue, which we debated in relation to an earlier clause, of good reasons.

As there is no explanation before us, either in the legislation or in the explanatory notes, of what might constitute good reasons, amendment 139 seeks to help the Government, in a collegial spirit, by inviting the Secretary of State to publish a framework that allows the consideration of the effect of post-traumatic stress and potential endangerment on the provision of evidence. I do not think that any of us could object to the idea that post-traumatic stress and potential endangerment would be good reasons, so I will be interested to hear the Minister explain, if in fact he does not embrace the amendment, why that is the case, because we go on to suggest that he might also publish the other factors that would be seen to be good reasons.

The clause serves to shift from a presumption of guilty until proven innocent, again echoing an earlier discussion, back to our legal system’s norm of innocent until proven guilty. As it stands, unamended, it is not in the spirit of the law or of British values, and it should not be in the Bill.

[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.

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[Mr Goodwill]

I am sure the Opposition understand that when someone is given a police caution when they are about to be arrested they are told, “It may harm your defence if you do not mention when questioned something you later rely on.” Is the clause not basically about the same principle being applied to immigration cases?

[Paul Blomfield]

rose—

[Tom Pursglove]

I will take an intervention from the hon. Member for Sheffield Central.

[Paul Blomfield]

I am trying to explore the contradiction in what the Minister has just said. He said that the Government intended to produce guidance that set out what good reasons were subsequent to the legislation, but he cautioned against requiring good reasons, because that would exclude some people from justice. Would he square that circle for me?

[Tom Pursglove]

We think that the appropriate place to be clear about these matters is in the guidance, rather than the Bill. As I say, I would expect decision makers to take into account all the relevant factors at play in an individual case when making decisions relating to it. Rather as we have discussed in relation to other clauses and amendments, there is flexibility in certain circumstances, where good reasons can be shown as to why evidence would not be produced sooner. We recognise that people may be in difficult circumstances and that issues arise in their lives. We want the system to be responsive to that and to take proper account of it, which is why we are proposing to proceed as we are doing.

To return to the point that I was making on amendment 139, it would perpetuate the issues that the clauses are designed to address to the detriment of genuine claimants, undermining their usefulness. Amendment 139 would also introduce a requirement to publish guidance on good reasons within 30 days of the Bill receiving Royal Assent. That is an arbitrary deadline and it is not necessary to include it on the face of the Bill. As I have indicated, good reasons will be set out in published guidance for decision makers and will be made available when the measures come into force.

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[Tom Pursglove]

I can confirm that it will refer to children. To conclude my remarks, I respectfully invite the hon. Member for Sheffield Central to withdraw the amendment.

On clause 20, the unnecessary provision of late evidence, statements and information delays justice for those with genuine claims, and wastes valuable resources. Clause 20 will work in parallel with clauses 18 and 19 to support the new priority removal notice. Its focus is on encouraging persons liable to removal or deportation to provide at the earliest opportunity any information or evidence in support of their protection or human rights claim, or, for potential victims of modern slavery, in relation to a decision by the competent authority. Where information or evidence is provided on or after the cut-off date, as set out in the priority removal notice and without good reason, it is right that that should be taken into account as damaging to the person’s credibility. I hope that the Committee will agree to the clause standing part of the Bill.

[Paul Blomfield]

I am afraid that I am unconvinced by the Minister’s response, so I wish to press amendment 139 to a vote.

Question put, That the amendment be made.

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[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.

[Paul Blomfield]

Similarly, I want to ask a couple of questions of the Minister on why the opportunity has not been taken to go beyond the provisions in the clause, because there is a real problem with access to legal aid. Research by Refugee Action has shown that, since the changes introduced in 2012, it has been much more difficult to secure legal aid. There is also a vast difference in provision across the country, with provision concentrated in metropolitan areas such as London and Birmingham, and not in dispersal areas, where it is particularly difficult to access legal aid. Refugee Action’s report recommended that the Government should commit to ensuring that everybody in the asylum system who is eligible for legal aid representation has access to it. What are the Government proposing in respect of that?

If the clause is about ensuring that issues are resolved at the appropriate stage, why are the Government not extending legal aid to all stages of the process? If cases are successfully resolved at an earlier stage, surely it is to everybody’s benefit.

[Tom Pursglove]

I will try to respond to the various points that have been raised as best as I am able. I will, of course, happily feed through the views that have been expressed to Ministry of Justice colleagues who have direct responsibility for legal aid within their portfolio.

On the initial point about the seven hours, it is worth saying that the power we are proposing will allow the Lord Chancellor to amend the number of hours of advice available under the clause. The Lord Chancellor will have to lay affirmative legislation to ensure that Members of this House and the other place have full sight of the proposed changes. That power is necessary because the priority removal notice is a new process and, as with all new operational processes, it will take time to bed in. We must be able to change the number of hours to ensure that the purpose of the clause works how we intend in practice. Providing individuals with access to free legal advice ahead of their potential removal from the UK is clearly important. That is why we are making that commitment in the Bill.

I was asked what this extension of legal aid will cost. The estimates are in the region of £4 million to £6 million, so it is a significant increase to meet the need resulting from the new measures we are introducing. If, at the end of the seven hours, more advice is needed—and there are circumstances which dictate that—there is legal advice available for asylum claims and appeals.

[Tom Pursglove]

Yes. That provision is made precisely for those in receipt of a PRN. I was making a point about the extension. It is worth making the point that, if people find that they require further advice at the end of the seven hours, any individual needing more legal advice on an immigration matter can apply for in-scope legal aid, such as for asylum advice or through the exceptional case funding scheme, subject to passing the relevant means and merits tests. I will make sure that colleagues in the Ministry of Justice are aware of the points raised today on legal aid more generally within the immigration and asylum system.

There was a question about access to justice in dispersal areas. The hon. Member for Bermondsey and Old Southwark asked where information about legal aid provision is provided. My understanding is that it is published online, so it is readily accessible to people. As hon. Members would expect on the issue of dispersal areas, the MOJ monitors the market capacity and works with the Home Office to ensure supply in dispersal areas. If the hon. Member for Sheffield Central wants to write to me with specific concerns on that matter in his community, I would be glad to look at those and make sure that they are considered by Ministers appropriately.

[Paul Blomfield]

I will take the Minister up on his offer, but I want to press him on another point. He talks about legal aid being made available for the new provision for a priority removal notice. However, the Home Secretary has the opportunity to issue a priority removal notice, but is not required to do so—it might not be done in all cases. There will potentially be people who are served with a notice of removal who have never received a priority removal notice. They will not have the opportunity to access the seven hours of free legal aid. What is the justification for that?

[Tom Pursglove]

The hon. Member is seeking to extend the provision we are proposing in the Bill. We are very clear that the clause makes the legal advice available to those who have been served with priority removal notices. We do not propose to extend the offer beyond that. However, I will make sure that his concerns are flagged with ministerial colleagues in the Ministry of Justice.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23

Late provision of evidence in asylum or human rights claim: weight