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

Stephen Kinnock Excerpts

Wednesday 10th January 2024 General Committees

[Stephen Kinnock (Aberavon) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Bardell. As the Minister has explained, these regulations mark another step toward implementation of the few parts of the Illegal Migration Act 2023 that have actually 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, having apparently been accepted as unworkable by the Government, at least for the time being—but, maybe that is a debate for another day. 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. 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 EEA.

The Opposition are broadly supportive of these changes in principle, notwithstanding a few important questions. The Minister’s answers would be much appreciated. As he kindly explained, the context of these changes includes a recent increase in the number of asylum claims from nationals of those two countries. More often than not, these claims are rejected by the Home Office. For Indian nationals, the grant rate has not exceeded 10% in recent years. It follows that a general presumption against asylum claims from such individuals is a reasonable approach for the Government to take. However, there remains a significant minority of claims that are ultimately successful, particularly with respect to Georgia, where the grant rate has fluctuated between 15% and 30%. As such, it is important that Ministers make clear to decision makers in the Home Office the kind of circumstances in which it is likely to be considered appropriate for exceptions to be made to the otherwise automatic declaration of claims as inadmissible. As yet, this has not been made as clear as we would like.

As ever, a helpful report on these regulations by the Secondary Legislation Scrutiny Committee cites the Home Office’s own country policy and information notes as recognising, in the case of India, that there are risks:

“Human rights abuses including rape, torture, and deaths in custody are reported to be widespread and conducted with impunity. Excessive force by security forces in areas of conflict are also reported, including extra-judicial killings, rape, torture, arbitrary detention, kidnappings and destruction of homes”.

In Georgia, the relevant note recognises:

“High-profile government opponents and managers of media channels opposed to the government may be subjected to…politically-motivated prosecution”

and detention with a politically biased judiciary. The Home Office currently takes a nuanced approach that recognises that, in spite of a relatively low grant rate for Georgian and Indian asylum seekers overall, there remain situations where discretion can, should and must be exercised for certain individuals.

Following the entry into force of these regulations, it is important that Home Office decision makers are provided with updated guidance at the earliest possible opportunity to reflect the addition of those countries to the section 80AA list and, crucially, the kind of circumstances in which an exception to the requirement to declare claims inadmissible should be made. Can the Minister confirm whether or not such up-to-date guidance has been published by the Home Office for the decision makers? If the guidance has not yet been published, would he give a clear indication of when the Department will do so?

It should also be noted that what marks Georgia and India out from many other countries of origin for asylum seekers is the fact that, in both cases, the UK has a bilateral agreement on migration returns. A broad agreement with India on a range of migration-related issues, including the return of people “in an illegal situation” was announced in May 2021, and has thus been in place for some time. The impact of this agreement on the actual number of returns has been less than Ministers may have been hoping for. In the 12 months to September 2023, there were 4,710 asylum claims from Indian nationals. During the same period, however, the number of asylum-related returns was a paltry 302. How does the Minister explain the still relatively low number of returns, particularly of failed asylum seekers, to India since the agreement with India came into effect? Secondly, does he recognise that the addition of India to the list of safe states in section 80AA will make it all the more important for the Governments of both countries to identify and address any barriers to such returns, if the intended effects of these regulations are to be seen in practice? If so, can he tell us what specific actions are being taken in this regard?

With respect to Georgia, a bilateral agreement in the form of a treaty was laid before Parliament in February 2023. That agreement relates specifically to the readmission of persons residing without authorisation and is thus somewhat narrower in scope than the agreement with India. Can the Minister tell us what assessment the Government have made of the agreement’s impact on the level of returns from the UK to Georgia, both in terms of the overall number of asylum-related returns and the percentage of failed asylum seekers who were returned, both before and after the agreement came into effect?

Another significant area of uncertainty relates to whether the addition of any new countries, such as India and Georgia, to the section 80AA list will affect the decision-making process for claims that predate these regulations. The House of Lords Secondary Legislation Scrutiny Committee asked the Home Office the entirely reasonable question of whether the inadmissibility rules will be applied to such claims retrospectively. The Committee received no answer to that question, which I must therefore put to the Minister today. What impact, if any, will the addition of these two countries to the section 80AA list have on outstanding asylum claims that predate the entry of these regulations into force?