Nationality and Borders Bill (Tenth sitting)

Stuart C McDonald Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[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.

[Bambos Charalambous]

Clause 20 introduces the concept of a priority removal notice and, under subsection (3), specifies 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.

As we have made clear during the course of the Bill’s passage, the Government are trying to make it harder for refugees and asylum seekers to gain protection here in the UK. That is undeniable. The priority removal notices regime is part of a package of measures and provisions to achieve that end, both in deterring refugees from seeking protection and in making it more difficult for refugees admitted to the UK to be recognised as such.

One of those measures is directing decision makers, including judges, to doubt an applicant’s credibility if they fail to provide evidence under the strict conditions described in clauses 18 and 19. It is worth noting that the Home Office and the courts have always been able to consider the timing of a claim as a factor in determining credibility, and that might determine an appeal. None the less, clause 20 seeks to reduce the weight that is given to any evidence that is submitted after the cut-off period stipulated by the PRN.

According to the Immigration Law Practitioners’ Association:

“Rather than allowing decision-makers to sensibly consider whether the late provision of evidence is a reason to doubt its credibility, weighing all the evidence on the whole, the government proposes to strait-jacket decision-makers with a series of presumptions. The caveat that decision-makers will be allowed to use their own judgment if there is a ‘good reason’ why evidence was provided late does not mitigate these concerns.”

Indeed, there are many so-called bad reasons that evidence might be provided late that do not indicate dishonesty, and many more reasons that it may not be possible for someone to present all relevant information in support of their claim at the earliest opportunity. We have already heard in detail the problems felt by certain groups and individuals with this approach, such as LGBTQ asylum seekers and victims of torture, sexual or gender-based violence, or trafficking.

One long-standing concern for the sector, which we have yet to cover in detail, is failings within the asylum process itself, particularly poor-quality, shortened or inadequate interviews. The consequences of poor interviews conducted with an individual can be devastating in the moment and potentially have grave long-term effects, including the risk of being returned to persecution because the Home Office did not have the information it needed to make a fair and informed decision.

For the Home Office, asylum appeals have been rising steadily over the last decade, which points to the importance of protecting asylum appeals as a vital safeguard for the most vulnerable and to the fact that the Home Office often gets decisions wrong first time. More widely, a system that relies on the appeal process to correct its errors is inefficient, costly and inhumane. For that reason, we can describe the asylum system in the UK as broken, and we can point to the last 11 years of Conservative government as a reason for us having that broken system.

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Priority Removal Notices: Expediated Appeals

[Stuart C. McDonald]

I beg to move amendment 155, in clause 21, page 24, line 21, at end insert—

“(2A) The Secretary of State must accept that there are good reasons for P making the claim on or after the cut-off date 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 section 82A(2) of the Nationality, Immigration and Asylum Act 2002 (as inserted by this Bill).

If someone makes a protection claim after the PRN cut-off, then unless the Secretary of State is satisfied there are good reasons, she must certify the appeal right and it will be subjected to an expedited appeal straight to the upper tribunal. Tribunal procedure rules, then, must make provision for this. If it is in the interests of justice for an appeal not to be expedited, the tribunal may order that it is no longer subject to that process. This, too, prevents any onward appeal.

In the next debate I will set out our opposition to the clause as a whole, but amendment 155 sets out a situation where the Secretary of State must accept there has been a reasonable excuse, similar to before. It would surely be wrong to subject survivors of human trafficking, or gender-based violence or torture—to use but three examples—to an accelerated appeal, simply on the grounds that they were late making a claim in response to a PRN. We have heard very powerful reasons already today, including in Home Office guidance, why that can be an incredibly difficult process.

I suspect the Minister will again reject this amendment on the same grounds as before, but it is at least useful for him to state on record that these are the types of claimant that he envisages should not be pushed through any accelerated appeal process. I will listen carefully to what he has to say in that regard.

[Tom Pursglove]

I thank the hon. Gentleman for tabling amendment 155, which seeks to define good reasons for the purposes of proposed new section 82A(2) of the Nationality, Immigration and Asylum Act 2002. I appreciate the concerns this amendment is attempting to address but the Government must oppose it. The amendment would result in all individuals who meet any of the descriptors listed being exempt from the expedited appeal process, even where their reason for lateness may be completely unrelated and make redundant any need to submit a claim by the date specified in the PRN.

I acknowledge that the experiences and circumstances listed in the amendment can inform why a person has made an application late. However, the duty on the Secretary of State will see all and any reasons for lateness being considered. Guidance for decision makers will be published and made available when these measures come into force. For that reason, I invite the hon. Member to withdraw his amendment.

[Stuart C. McDonald]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Bambos Charalambous]

There is such welcome generosity from Conservative Members. The measures will do no such thing; all they will do is clog up the upper tribunal system, which I will address later.

The Bill’s system of penalisation includes curtailing appeal rights, as set out in clause 21. The clause creates an expedited appeal route for those who have been served with a priority removal notice and who have provided evidence or a claim after the PRN cut-off date. Most importantly, the right of the appeal will be limited to the upper tribunal.

According to the Law Society, the proposals would essentially result in single-tier appeals with increased pressure on judges and more appeals to the Court of Appeal, as well as undermining access to justice, which is crucial in asylum cases. The Government’s proposals on priority removal notices and expedited appeals risk impinging on people’s rights and access to justice. In many instances, asylum seekers are highly vulnerable and may experience difficulties when it comes to the legal intricacies of the asylum process—studying legal determinations, gathering evidence and preparing submissions for appeals, for instance.

It is also worth clarifying that when unfounded or repeat claims are made, accelerated procedures as part of the asylum process are necessary and important safeguards. The difficulty is that more complex cases—where there are legitimate reasons for evidence being provided at a later date, for example—may be included in those accelerated processes, with devastating consequences. The Committee has heard some of examples of that today.

The Committee heard from Adrian Berry of the Immigration Law Practitioners Association about clause 21 during our evidence session. It is worth revisiting his evidence and the severe concerns that he raised on 23 September. First, he spoke about the expedited appeal, which begins in the upper tribunal. Therefore those who introduce a claim for asylum and provide evidence after the cut-off date in a priority removal notice receive an expedited appeal and lose their right of appeal and a hearing in the first-tier tribunal. Secondly, he raised concerns that the upper tribunal hearing is final. There is no onward appeal to the Court of Appeal. That is wrong for a number of reasons.

Mistakes, unfortunately, do happen in asylum claims, but under the current provision, individuals would be left, in the words of Adrian Berry, “one shot” to appeal and correct the mistakes. The fact that the first instance tribunal decisions cannot be reviewed has serious implications for the rule of law. It also creates a wider time-pressured, accelerated decision-making process operating on the tribunal system, which is likely to have a negative effect on the quality of decisions made. That is well documented and an issue that we have touched on previously, but it is worth repeating for the benefit of the Committee.

Appeals have been rising for many years. Between 2016 and 2018, 57% of first-tier tribunal asylum appeals were dismissed. It was only 52% in 2019-20. The right of appeal is fundamental in protecting individuals’ rights and preventing potential miscarriages of justice.

I should like to cite an example to illustrate that point and wider concerns about the priority removal notices regime introduced in part 2. I will call my example AT, a Gambian national who unsuccessfully sought asylum in the UK. He was married to a Gambian woman who had been granted indefinite leave to remain in July 2016 as she was unable to return to Gambia. His wife was heavily pregnant with their child but their relationship had not been raised or considered by the Home Office as part of his asylum claim. He was given a “notice of liability to removal” and was detained after the notice period had ended. Before his detention, he was unsuccessful in securing an appointment with his solicitors.

During AT’s detention, his wife gave birth to their son—a British citizen. The Home Office refused AT’s human rights claim based on his family life, focusing on the late stage at which he raised it. He was removed from the UK before he could access legal advice and challenge that decision. His subsequent judicial review proceedings were successful and he was allowed to return to the UK to exercise his right of appeal to the first-tier tribunal against that decision. The Home Office subsequently conceded his article 8 family life claim, and granted him leave to stay in the UK with his wife and son. If the priority removal notice provisions of the Bill had been in force in this case, AT’s right of appeal, even after he had succeeded in a judicial review, would have been severely circumscribed. He would only have been able to appeal directly to the upper tribunal. The appeal would have been decided on an expedited basis and the tribunal would have been required to treat AT’s claim to a family life as lacking credibility. If the upper tribunal had found against him, he would have had no right of appeal to the Court of Appeal.

That case highlights some of the severe consequences of clause 21. Are Committee members, on all sides of the debate, happy to put speed over justice? That is what the Bill’s attempts to expedite appeals seeks to do, and without acknowledging the harm that that will cause. It risks people having their human rights violated as a result of a truncated appeals process for asylum claims.

Clause 21 has serious consequences for the rule of law, procedural fairness and the rights of individuals. It will inevitably lead to the wrong being decisions made that will then go unchallenged. Closing off avenues for appeals risks closing off access to justice. An incorrect decision can cost an individual their safety, security and livelihood. Therefore the clause presents an unacceptable risk of breaching the UK’s non-refoulement obligations under the refugee convention and the European convention on human rights. As such, the Opposition will oppose that clause 21 stand part of the Bill.

[Stuart C. McDonald]

I agree with everything the shadow Minister said. I want to speak in support of amendment 42, which would preserve onward rights of appeal in certain circumstances.

The overall danger of clause 21 is that it risks expediting appeal processes so that mistakes are made and people are denied justice. Given the dangers that are posed by speeding up such processes, it is all the more important that there is access to the supervisory jurisdiction of the higher courts in case errors are made. We are not talking about minor issues; these are matters of life and death. Assessments have been made about a risk of persecution. Errors will have catastrophic consequences for individuals concerned.

All tribunals make mistakes, so in such circumstances, it seems reckless not to have any right of appeal. I absolutely accept that there can be restrictions and that the grounds for such an appeal can be phrased in a way to try to prevent abuse, but to exclude it altogether goes way beyond what can be justified. Expedited appeals without any possibility of onward appeals creates a double danger of getting those decisions wrong. The fact that claims are made late does not remotely mean that they are necessarily without merit, nor does it mean that they can be decided any quicker than another claim and it should not automatically lead to accelerated appeals processes.

Again, I think that all this is missing the point. The tribunal was actually functioning pretty well. It is the Home Office that has to focus on getting its house in order, and the whole clause is completely misconceived.

Amendment 67 agreed to.

Amendments made: 68, in clause 21, page 24, line 28, after “be” insert “brought and”.

See the explanatory statement for Amendment 67.

Amendment 69, in clause 21, page 24, line 32, leave out from “is” to end of line 33 and insert

“to be continued as an appeal to the First-tier Tribunal and accordingly is to be transferred to that Tribunal”.—(Tom Pursglove.)

This amendment is a drafting amendment to clarify that where the Upper Tribunal is satisfied that it is in the interests of justice to do so it has power to order that an expedited appeal is instead to be heard subject to the usual procedure by the First-tier Tribunal.

Amendment proposed: 42, in clause 21, page 24, line 37, leave out subsection (2). —(Stuart C. McDonald.)

This amendment would protect the right to an onward appeal from an expedited appeal decision by the Upper Tribunal in certain cases.

Question put, That the amendment be made.

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[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

[Stuart C. McDonald]

I beg to move amendment 43, in clause 23, page 26, line 38, leave out subsection (2) and insert—

“(2) Where subsection (1) applies, the deciding authority must have regard to the fact of the evidence being provided late and any reasons why it was provided late in considering it and determining the claim or appeal.”

This amendment would remove the provision which states that “minimal weight” should be given to any evidence provided late.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 38, in clause 23, page 26, line 40, at end insert—

“(2A) Subsection (2) does not apply where—

(a) the claimant’s claim is based on their sexual orientation or gender identity; or

(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom.”.

This amendment would remove the direction to the deciding authority to give minimal weight to evidence provided late in cases where an asylum claim or human rights claim is based on issues of sexual orientation or gender identity; or where the claimant was under 18 when they arrived in the UK.

Amendment 131, in clause 23, page 26, after line 40, insert—

“(2A) The deciding authority must accept that there are good reasons why the evidence was provided late where—

(a) the claimant’s claim is based on sexual orientation, gender identity, gender expression or sex characteristics;

(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom;

(c) the claimant’s claim is based on gender-based violence;

(d) the claimant has experienced sexual violence;

(e) the claimant is a victim of modern slavery or trafficking;

(f) the claimant is suffering from a mental health condition or impairment;

(g) the claimant has been a victim of torture;

(h) the claimant is suffering from a serious physical disability;

(i) the claimant is suffering from other serious physical health conditions or illnesses.”

This amendment sets out the circumstances where the deciding authority must accept that there were good reasons for providing evidence late.

Amendment 44, in clause 23, page 27, line 13, at end insert—

“(6B) This section does not apply where the evidence provided proves that a claimant is at risk of persecution by the Taliban.”

This amendment would disapply Clause 23 (under which minimal weight is given to any evidence provided late) in respect of claimants who are at risk of persecution by the Taliban.

Clause stand part.

[Stuart C. McDonald]

The clause is similar in nature to clauses we have debated already, and most of the amendments address similar issues. It is about penalties for providing evidence after a specified cut-off date. Amendment 43 makes the point, again, that we regard it as legitimate to ask a decision maker to take account of the fact that evidence was provided late and the reasons for that, but it should not tell a decision maker what to conclude. We have also added our names in support of amendment 131, which seeks to ensure an acknowledgement of how difficult the process of the provision of evidence can be for certain categories of claimant, and the inappropriateness of fixing hard and fast deadlines.

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[Tom Pursglove]

I thank hon. Members for raising these important issues. We all recognise that young or particularly vulnerable claimants, sufferers of trauma such as sexual violence or ill-treatment on account of their sexual orientation or gender identity, and survivors of modern slavery or trafficking need to be treated with care, dignity and sensitivity. It is important that they are able to participate fully in the asylum process so that, in the case of a genuine applicant, their claim for protection can be recognised and their status settled at the earliest opportunity. That is in the best interests of the claimant and the overall functioning of the asylum system.

At the same time, we recognise that it may be harder for some people to engage in the process. That may be because of their past experiences, because of a lack of trust in the authorities or because of the sensitive and personal nature of their claim. That is why clause 16, together with clauses 17 and 23, provides for good reasons why evidence might be provided late. What constitutes “good reasons” has not been defined in the Bill, because to do so would limit the discretion and flexibility of decision makers to take factors into account on a case-by-case basis. It would be impractical to legislate for every case type where someone may have good reasons for not previously disclosing evidence in relation to their protection claim.

Good reasons may include objective factors such as practical difficulties in obtaining evidence—that may be where the evidence was not previously available, or where an expert report is not available. Good reasons may also include subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental health. Decision makers, including the judiciary, will be better placed to identify and assess those factors on an individual and case-by-case basis.

Amendment 43 would effectively remove the minimal weight principle; it would disapply the requirement for a decision maker to have regard to the principle that minimal weight should be given to late evidence for two categories of people. The amendments fail to take into account the fact that decision makers will have discretion in how they apply the principle that minimal weight should be given to late evidence, and that they may choose not to apply the principle in any given case. Clause 23 does not create a provision whereby decision makers are required to give late evidence minimal weight; they are required only to have regard to the principle, which they can choose to disregard.

Amendment 131 would place a statutory obligation on decision makers to accept that there are good reasons for late evidence where an individual’s claim is based on certain factors, or the individual falls into a particular category. That would apply to Home Office decision makers as well as the judiciary. Compelling a judge to accept good reasons for late evidence based solely on the grounds of the person’s claim raises significant issues and interferes with their fact-finding role. It also ignores the possibility that a claim may fall within a particular category or a person may identify as one of the listed categories, but their evidence may be late for unrelated reasons. The amendment would therefore create a blanket acceptance of late evidence in specific prescribed circumstances, and yet a vulnerable individual who did not fall within the specified groups might have late evidence and face a different test for whether or not they have good reasons. We feel that is unfair.

On amendment 44, this country has a proud history of welcoming with open arms those who require its protection. That includes circumstances where, as in Afghanistan, a significant change in circumstances means a sudden shift in a country’s security situation. Where evidence is brought late on account of such a change, that is clearly capable of falling within the “good reasons” consideration, so there is no need to make specific provision in relation to a fear of the Taliban.

[Stuart C. McDonald]

But what would happen in the hypothetical example I gave, where there was not good reason? The guy was a bit stubborn and did not think he should have to go through this process; he thought he should have had some automatic leave. I am still at a loss to understand what it means for the decision maker to have regard to the principle that minimal weight should be given to the evidence. I do not understand the expression. How does that work in the context of the hypothetical example I gave?

[Tom Pursglove]

I will come back to that point and try to give the hon. Gentleman some further clarity, which I hope will be helpful. I will make the point again that, in the current circumstances that we find ourselves in regarding Afghanistan, people are not being removed there.

Of course, all the relevant information is taken into consideration when reaching decisions on individual cases. For example, if there is an assessment that a particular country is safe but for a particular individual there are grounds whereby it is not safe for them in their circumstances, that is reflected in the decisions that are taken.

To finish the point about amendment 44, it would create a system where those with a fear of the Taliban were treated differently from all other asylum seekers, no matter the risks they faced or the vulnerabilities of the individuals involved, simply on the basis of where they were from. That is discriminatory and cannot be right.

On the point about how decision makers can be told that they must apply minimal weight to evidence, clause 23 does not create a requirement for Home Office decision makers or the judiciary to give late evidence, following the receipt of an evidence notice or a priority removal notice, minimal weight. In protection and human rights claims, decision makers must have regard to the principle that minimal weight will be given to any late evidence, but they can consider the principle and determine that it should not be applied in a particular case.

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[Tom Pursglove]

I am not familiar with the review to which he refers, but the hon. Gentleman will appreciate that I have been in this role only for the past four weeks. However, I will go away and look into that.

I can only repeat the point that we will set out in guidance the relevant factors that will be taken into consideration when cases are determined. I would expect there to be sympathetic consideration of people’s individual circumstances. I have also made that point at the Dispatch Box when we have talked about the operationalisation of the policy. Of course, it is right that that information is established in full. With that, I encourage the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw his amendment.

[Stuart C. McDonald]

I am grateful to the Minister for his answer. At points, he did sound almost reassuring, but the problem is that he sounds reassuring when he says, essentially, “This clause will not have any effect,” suggesting that decision makers will be able just to have regard to all the circumstances on a case-by-case basis. That is what decision makers do anyway without the need for this myriad of statute provisions telling them what to think about a, b, c and the weight to be applied to evidence here, there and everywhere. While I take at face value his intention—I think we probably intend the same thing—that my Afghan example would not end up with conclusive evidence being disregarded because the man was stubborn or behaved in a stupid way because he was at risk, I still find the wording in the clause troubling. I hope the Home Office will think again.

In the meantime, we have pressed similar amendments to a vote, so I do not need to do so again. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 131, in clause 23, page 26, after line 40, insert—

“(2A) The deciding authority must accept that there are good reasons why the evidence was provided late where—

(a) the claimant’s claim is based on sexual orientation, gender identity, gender expression or sex characteristics;

(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom;

(c) the claimant’s claim is based on gender-based violence;

(d) the claimant has experienced sexual violence;

(e) the claimant is a victim of modern slavery or trafficking;

(f) the claimant is suffering from a mental health condition or impairment;

(g) the claimant has been a victim of torture;

(h) the claimant is suffering from a serious physical disability;

save-line2(i) the claimant is suffering from other serious physical health conditions or illnesses.”—(Bambos Charalambous.)

This amendment sets out the circumstances where the deciding authority must accept that there were good reasons for providing evidence late.

Question put, That the amendment be made.

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Accelerated detained appeals

[Stuart C. McDonald]

I beg to move amendment 45, in clause 24, page 28, leave out lines 9 to 11.

This amendment would remove the requirement for detainees to give their notice of appeal within 5 working days.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 46, in clause 24, page 28, line 22, leave out “may” and insert “must”.

This amendment would require (rather than merely empower) the Tribunal or the Upper Tribunal to cease to treat cases as accelerated detained appeals where it is in the interests of justice to do so.

Clause stand part.

Government new clause 7—Accelerated detained appeals.

[Stuart C. McDonald]

Clause 24 establishes a system of fast-track appeals for those in detention. The explanatory notes state that in 2019-20 it took almost 12 weeks on average for detained immigration appeals to progress from receipt in the first tier tribunal through to disposal, and the aim is for faster decisions in certain cases

“to allow appellants to be released or removed more quickly”.

That sounds almost benign, and who does not want appeals to take place as quickly as possible? But the key issue is whether they can be decided fairly within the timeframe set down in the clause. We are talking not about trying to take three or four weeks off the average time, but about reducing it by almost three quarters. Clearly, the Government believe that the tribunal is wasting a lot of time but I do not see any evidence for that, and I do not see any analysis of why that 12-week average exists.

Five days is an incredibly short timeframe in which to launch an appeal, particularly when a person is detained in an immigration detention facility, often in the middle of nowhere, and where the chances of securing proper legal advice and consultation in that time are incredibly slim. Amendment 45 would delete that requirement.

Amendment 46 would also mean that the tribunal would be required to stop treating an appeal as an accelerated appeal if it was in the interests of justice to do so. Again it is not clear to us why the tribunal should be empowered to continue an accelerated appeal when that is not in the interests of justice. More generally, the clause gives rise to the question of why the Secretary of State should have any say in which appeals can be disposed of expeditiously. Why is she not required just to assess the fairness of a case or give consideration to how complex a case is? Why not leave the tribunal to make those determinations? It would be far better placed to make that assessment.

As Members will know, in 2015 the Court of Appeal found similar rules to be unlawful and held that they created a system in which asylum and human rights appeals were disposed of too quickly to be fair. The Court said that the timetable was

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.

It also said that the policy did not appreciate the problems faced by legal representation obtaining instructions in such cases or the complexity or difficulty of many asylum appeals, and the gravity of the issues raised by them. I have absolutely no reason to think that the proposed policy is any better than that one.

The Government now intend to replace the entire clause with new clause 7, principally it seems to expand the categories of appeal that could be subject to the proposed procedure. My party opposes that expansion and opposes the clause.

[Bambos Charalambous]

We oppose the clause. It seeks the return of the detained fast-track system and to recreate it in primary legislation. The clause imposes a duty on the tribunal procedure rules committee to make rules for an accelerated timeframe for certain appeals made from detention that are considered suitable for consideration within that timeframe.

In the explanatory notes, an accelerated detained appeal is defined as being

“an appeal brought by an appellant who…received a refusal of their asylum claim while in detention…remains in detention under a relevant detention provision…is appealing a decision which was certified by the Secretary of State as suitable for an accelerated detained appeal”.

That system previously existed but was found to be illegal by the High Court in a landmark case brought by Detention Action. The system was found to be unfair as asylum and human rights appeals were disposed of too quickly to be fair. The Court of Appeal described the timetable for such appeals as

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.

It also emphasised, perhaps instructively for this Committee, that speed and efficiency must not trump justice and fairness—something of a feature of part 2 of the Bill. Indeed, hundreds if not thousands of cases have had to be reconsidered by the Home Office or the tribunal because they were unfairly rushed through the process that the Government now seek to recreate. Those cases include survivors of trafficking and torture and other individuals who, on the basis of a rushed and unfair procedure, will have been removed to places where they fear persecution or are separated from their families. There was no adequate system for ensuring that such people were removed from the fast track and given a fair opportunity to present their claims.

Despite that background, the Bill aims to create this unjust and ineffective procedure by reintroducing the detained fast-track process through this clause. It will put that same system, which was deemed unlawful in 2015, on a statutory footing, which will insulate it against future legal challenges.

The clause provides for the Secretary of State to certify a decision if she considers that an appeal would be disposed of expeditiously. It requires the tribunal procedure committee to introduce the following time limits: a notice of appeal must be lodged no later than five working days after the decision was received; the tribunal must make a decision no later than 25 days after the appeal date; and an application for permission to appeal to the upper tribunal must be determined by the first-tier tribunal not later than 20 working days after the applicant was given notice of the tribunal’s decision.

The clause would deny access to justice. First, five days is insufficient to prepare an appeal against a negative decision, particularly where the individual is detained and where their access to legal advice is poor and an individual’s wellbeing may be affected by their detention. For those detained in prison, the situation is even worse. For example, in a case in February of this year, the High Court declared the lack of legal aid immigration advice for people held under immigration powers to be unlawful. More widely, Home Office decision making is frequently incorrect or unlawful. As we know, half of all appeals against immigration decisions were successful in the year leading up to June 2019. It is therefore vital that people are able to effectively challenge decisions through the courts.

The detained fast track is unjust. It is also unnecessary. As the Public Law Project and Justice have pointed out, the tribunal has adequate case management powers to deal with appeals expeditiously in appropriate cases and already prioritises detained cases. The Home Secretary should not be trying to force the hand of the independent tribunal procedures committee to stack the cards in her favour in appeals against her decisions. The Bill does not learn the lessons of the past and seeks to resurrect an unworkable system of accelerated detained appeals. The clause proposes that the appeals process be fast-tracked. I am very worried that provisions in part 2 of the Bill will therefore disadvantage the most vulnerable.

By allowing the Home Secretary to accelerate appeals when she thinks they would be disposed of expeditiously, the clause is clearly unjust. Once again, it also seems to violate the refugee convention. As my hon. Friend the Member for Warwick and Leamington (Matt Western) said on Second Reading:

“It is more than regrettable that the convention appears now to be held in such little regard by this Government.”—[Official Report, 19 July 2021; Vol. 699, c. 769.]

For those reasons, we will oppose that the clause stand part.

[Tom Pursglove]

I understand the motivation behind amendment 45. However, the Government oppose the amendment, as it is contrary to our policy intention and would undermine the effective working of the accelerated detained appeals process.

The period of five working days strikes the right balance, achieving both speed and fairness. The detained fast-track rules put in place in 2003 and 2005 allowed only two days to appeal. The 2014 rules set the same time limit. The current procedure rules allow a non-detained migrant 14 days to lodge their appeal against a refusal decision.

On amendment 46, I can assure hon. Members that it is not necessary, as the Bill already achieves the objective sought. The Government’s aim is to ensure that cases only remain in the ADA where it is in the interests of justice for them to do so. The consideration of what is in the interests of justice is a matter of judicial discretion. Where a judge decides that it is not in the interests of justice to keep a case in the ADA process, we would expect that they would use their discretion to remove the case. The current wording of the Bill—“may” rather than “must”—is consistent with the drafting of the rules that govern all appeals considered in the immigration and asylum chamber.

For these reasons, I invite the hon. Member for Enfield, Southgate to withdraw the amendments. On the detained fast track and wider points about the Government’s intentions, although the courts upheld the principle of an accelerated process for appeals made in detention, we have considered the legal challenges to the detained fast track carefully. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. All Home Office decisions to detain are made in accordance with the adults at risk in detention policy and reviewed by the independent detention gatekeeper. Changes made to the screening process, drawing on lessons learned, will enable us to identify appellants who are unsuitable for the accelerated detained appeals route at the earliest opportunity. Suitability will be reviewed on an ongoing basis and the tribunal will have the power to transfer a case out of the accelerated route if it considers that that is in the interests of justice to do so.

The timescales proposed for the accelerated route are longer than under the previous detained fast track. Appellants will have more time to seek legal advice and prepare their case. We are confident that the new route will provide sufficient opportunity to access legal advice. I am also conscious that Members are interested in what happens in the eventuality that a migrant misses the deadline to appeal a refusal decision. Provided that there are no other barriers to return, removal will be arranged. It is open to a migrant and/or their legal representatives to submit an appeal after the deadline and ask a judge to extend the time and admit the appeal late.

On new clause 7, the Government are committed to making the asylum appeals system faster, while maintaining fairness, ensuring access to justice and upholding the rule of law. In particular, it is right that appeals made from detention should be dealt with quickly, so that people are not deprived of their liberty for longer than is necessary. New clause 7 sets out a duty on the tribunal procedure committee to make rules for the provision of an accelerated detained appeals route. That will establish a fixed maximum timeframe for determining specific appeals brought while an individual is detained.

Currently, all immigration and asylum appeals are subject to the same procedure rules. Appeals involving detained appellants are prioritised by Her Majesty’s Courts and Tribunals Service but there are no set timeframes. It often takes months for detained appeals to be determined, resulting in people being released from detention before their appeals are concluded.

Changes to procedure rules are subject to the tribunal procedure committee’s statutory consultation requirements and procedures. However, the Government’s intent is to ensure that straightforward appeals from detention are determined more quickly. Under a detained accelerated process all appellants will benefit from a quicker final determination of their immigration status, spending less time in limbo, and getting the certainty they need to move forward with their lives sooner.

Those whose appeals are successful will have their leave to remain confirmed earlier than if the standard procedure rules had been followed. Meanwhile those with no right to remain will be removed more quickly, as they can be detained throughout the process, which reduces the risk of absconding.

The courts have been clear in upholding the principle that an accelerated process for asylum seekers while detained, operated within certain safeguards, is entirely legal. I made that point earlier. We have considered the legal challenges to the previous detained fast track carefully and we are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. We will ensure, through regulations and guidance, that only suitable cases will be allocated to the accelerated route. Cases will be assessed for whether they are likely to be able to be decided fairly within the shorter timeframe, and individuals will be screened for vulnerability and other factors that may impact their ability to engage fairly with an accelerated process.

As an additional safeguard, the clause makes it clear that the tribunal can decide to remove cases from the accelerated route if it considers it is in the interests of justice to do so. The new accelerated detained appeals route will contribute significantly to the timeliness with which appeals are decided for those in immigration detention. It will allow us to swiftly remove from the country people found not to need protection, while those with valid claims can be released from detention more quickly.

[Stuart C. McDonald]

I am grateful to the Minister for his response. I still have serious concerns about the provisions in the clause, particularly the short timeframe of five days to launch an appeal, and particularly when it could be the Secretary of State who has decided somebody has to go through that process. If she gets that decision wrong, by the time there is any ability to apply to the tribunal to move away from the fast-track process, it could be too late. In that case, a removal attempt will have been made, and a vulnerable person who was unable to contact a solicitor in time is completely without any chance of rectifying what the Secretary of State has done.

I maintain my opposition to what is proposed. I think that the safeguards fall way short, but I do not see any point in putting my amendment to a vote, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

I will now put the question that clause 24 stand part. I understand that the Government will vote no.

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[Tom Pursglove]

I am grateful to my right hon. Friend for his intervention. It is fair to say that I am very mindful of the enormous risks that we are finding people taking in trying to cross the channel at the moment. We have debated the matter extensively in this Committee up to this point, and no doubt that debate will continue. I am very concerned to hear about the situation that he has described. I have asked to be updated, and to be kept updated as to the progress of the operation to try to find the individuals who, it would seem, have been lost at sea. Of course, we send our thoughts and best wishes to those who are caught up in that terrible tragedy, and we hope for the best for them. This absolutely and without question underlines the gravity of the risks that people are taking by getting into small boats and trying to cross the English channel to get to the United Kingdom.

The Bill contains a suite of measures designed to protect those in genuine need while breaking the business model of criminal gangs who profit from people trafficking and exploit vulnerable people for their own gain. Our aim is to disincentivise people from seeking to enter the UK by dangerous means, facilitated by those criminal smugglers, with a clear message that those who arrive via an irregular route may be eligible to be transferred to and processed in another safe country not of their choosing.

[Stuart C. McDonald]

Is schedule 3 confined to applicants who arrive via irregular and dangerous routes, or could it be applied, in theory, to pretty much anyone who is claiming asylum?

[Tom Pursglove]

If I may, I will set out the detail that underpins schedule 3 in the course of my remarks.

Clause 26 is designed to be part of a whole-system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise. Under current policy, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative and, in some cases, unfounded article 3 human rights claims.

Consequently, schedule 3 will also introduce a presumption that specified countries are safe, because of their compliance with obligations under article 3 of the European convention of human rights.

--- Later in debate ---

[Stuart C. McDonald]

The Minister has scuttled over the idea that the Government are keen to abide by their international obligations. The UNHCR is absolutely clear that the clause rides a coach and horses—I paraphrase slightly—through the convention. Can he say a little bit more about how he possibly believes that this is consistent with what the refugee convention provides?

[Tom Pursglove]

I am actually meeting the UNHCR tomorrow, and I am obviously looking forward to that meeting. No doubt we will cover a range of topics during that discussion and engagement, which I most certainly value. I repeat to the hon. Gentleman the point that I have now made several times in relation to the provisions in the Bill: we believe that they are compliant with our international obligations. I have made that point previously and will continue to make it.

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[Stuart C. McDonald]

The Minister keeps referring to safeguards in the Bill and consideration of individual applicants’ safety, but none of that is in schedule 3, which does not require a finding of inadmissibility or a connection with the state. There is no consideration of the reasonableness of the transfer. The country might not even be a signatory to the refugee convention or offer refugee protection or the chance to secure the full rights that refugees are entitled to. Will he talk us through the safeguards?

[Tom Pursglove]

I would argue that I have already set out those safeguards.

The Government are clear that we must consider all options to break the business model of people smugglers and prevent people from putting their lives at risk by making perilous journeys from safe countries. Changes in schedule 3 are a key component of the wholescale system reform that we are committed to undertaking to prevent irregular migration. For those reasons, I ask hon. Members not to press amendment 159.

On schedule 3, the Government have been clear that the fastest route to safety is to claim asylum in the first safe country reached. We must dissuade all those considering making dangerous journeys to the UK to claim asylum. We are working closely with international partners to fix our broken asylum system and are discussing how we could work together in the future.

--- Later in debate ---

[Tom Pursglove]

No, I am going to make some progress because I am conscious that we have still got some way to go.

Schedule 3 aims to reduce the draw of the UK by working to make it easier to remove someone to a safe country where their claim will be processed. It amends existing legal frameworks to support our future objective to transfer some asylum claims to a safe third country for processing. The Bill contains a suite of measures designed to protect those in genuine need while breaking the business model of criminal gangs who profit from people trafficking and exploit vulnerable people for their own gain. We aim to disincentivise people from seeking to enter the UK by dangerous means facilitated by these criminal smugglers with a clear message that those arriving via an irregular route may be eligible to be transferred to another safe country not of their choosing to be processed.

[Stuart C. McDonald]

I just do not understand why the Minister tries to suggest that the provision will apply only to people who are not in genuine need. The Government do not know that because they are not looking at the cases before removing them to a third country. How is he circumscribing those who will be subject to this procedure, which we utterly oppose? How can he keep on saying that it will apply only to those who do not have genuine need?

[Tom Pursglove]

Schedule 3 is designed to be part of a whole system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise. Under current policy, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative, and in some cases unfounded, article 3 human rights claims. Consequently, schedule 3 will also introduce a presumption that specified countries are safe, due to them being compliant with their obligations under article 3 of the ECHR. Claimants will be required to present strong evidence to overturn that presumption to prevent removal. This will support the aim to swiftly remove individuals who have no basis to remain in the UK by preventing unnecessary delays where speculative article 3 claims are made prior to removal to safe countries.

Schedule 3 will also provide the Secretary of State with a power to add countries to the safe list—that is in addition to the already held removal power. This will ensure that the list of safe countries remains accurate. The schedule also ensures that rights of appeal are not afforded to asylum seekers on the basis of removal to safe countries nor to clearly unfounded human rights claims, thus preventing unnecessary appeals for unsubstantiated claims.

We are committed to upholding our international obligations, including under the 1951 refugee convention. That will not change. While people are endangering lives making perilous journeys, we must fix the system to prevent abuse of the asylum system and the criminality associated with it. Our aim is that the suite of measures contained within this Bill, including those within schedule 3, will disincentivise people from making dangerous journeys across Europe to the UK and encourage people to claim asylum in the first safe country they reach.

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for proposing new clause 18, which introduces new schedule 2. I agree wholeheartedly with the importance of ensuring the safety of those who are removed from the UK to third countries. However, we cannot support the proposals, which seek to limit our ability to remove individuals to a safe country. This Government have made our position clear throughout today’s debate: people should claim asylum in the first safe country that they reach. That is the fastest route to safety. I would like the Committee to consider each of the conditions in new schedule 2 in turn.

--- Later in debate ---

This is an absolutist policy, but there are loopholes. For a policy to work effectively, there must be no exceptions. There is also no end point. Where do the Government plan to end their deterrent policy? As there is no end point, we may get so far down the policy of offshoring that we cannot unwind it, creating a deeply unfair and inefficient system. If there is any chink in its armour, the whole thing will collapse. If it collapses, it will be a political embarrassment for the Government and the legislation will not achieve its aims and objectives. For those reasons, we oppose clause 26.

[Stuart C. McDonald]

I will speak briefly in support of amendment 159, new clause 18 and new schedule 2.

I echo everything the shadow Minister said. This is a terrible clause. I echo in particular all that he said about Australia. I take a tiny crumb of comfort from the fact that the Minister, despite the Home Office’s having adduced evidence in relation to the Australian example, did not mention it during his speech. Perhaps the Home Office is learning that it should run a million miles from the Australian offshoring scheme, because it was awful.

I did not recognise the clause from what the Minister said. He kept referring to safeguards and asserting that it was absolutely consistent with our international obligations. My reading of schedule 3 and clause 26 is the polar opposite. Schedule 3 drives a coach and horses through the principle that people cannot be removed while they have a claim outstanding. It allows removal to anywhere if some very basic safeguards are met. The person might have no link to the country to which they are removed—they might have been nowhere near it. It is clearly nothing to do with responsibility sharing between states. Like clause 14, it is just about offloading responsibility.

We are not saying that no one can ever be removed to have a decision made on their claim elsewhere. While not perfect, the Dublin scheme allowed for the transfer of a claim and the removal of a claimant in appropriate circumstances and with appropriate safeguards. We have set out the criteria that would put in place similar safeguards in new clause 18 and new schedule 2. They include a formal, legally binding and public readmission agreement with the state; a requirement that the person has a connection with the country in question; that it is reasonable in the circumstances for the person’s case to be considered there; and that all the requirements and safeguards that we said should have been in place around clause 14 are present, such as the proper implementation of the full refugee convention, protection against harm, access to fair and efficient asylum processes, and so on.

Again, all those protections are informed by the UNHCR’s public commentary on and critique of the Bill. I appreciate that the Minister expressed sympathy for what we are trying to achieve, but I suspect that when he has his discussions with the UNHCR, it will urge him to go further and to adopt some of these safeguards.

There are huge differences between what we propose in new schedule 2 and what appears in schedule 3. The absence of so many crucial safeguards in the latter shows why the clause should not form part of the Bill. Schedule 3 does not even require a finding of inadmissibility or a connection with the state. There is no consideration of the reasonableness of the transfer. The country might not even be a signatory to the refugee convention, offer refugee protection, or offer the chance to secure the full rights to which refugees are entitled under the convention.

To use the UNHCR’s own words:

“Transferring asylum-seekers or recognised refugees to territories with which they have no prior connection and without an individualised consideration of safety, access to fair and efficient asylum procedures and to international protection, or reasonableness is at odds with international practice and risks denying them the right to seek and enjoy asylum, exposing them to human rights abuses and other harm, delaying durable solutions to forced displacement, and encouraging onward movement. To transfer asylum-seekers and refugees to countries that are not parties to the Refugee Convention, and without any expectation, let alone commitment, that they will provide a fair asylum procedure and treatment in line with the Refugee Convention would be an abdication of the United Kingdom’s responsibilities under international law towards refugees and asylum-seekers under its jurisdiction.”

That is the UNHCR’s commentary on schedule 3. That is why we have tabled our new schedule, new clause and amendment, and I hope that the Minister will—not today, obviously—give that further thought.

We know that this is essentially about offshoring. We oppose the clause and the schedule because we are completely and utterly opposed to that concept. It is unlawful, unethical and, as the experience in Australia shows, it does not work. As the shadow Minister highlighted, it did not discourage arrivals by boat. The Kaldor Centre for International Refugee Law went into great detail on that in its submission to the Committee, which is absolutely spot on. It highlighted the humongous cost and, more than anything else, the humanitarian disgrace that those camps represent. Doctors Without Borders has talked about

“some of the worst mental health suffering we have ever encountered in our 50 years of existence, including in projects that provide care for torture survivors.”

Finally, on amendment 159, it is good that the Minister has said that children would not be subject to that procedure. However, as the shadow Minister said, there are still various categories of vulnerable people who must be removed from the scope of the clause and schedule. If the Home Office insists on taking that terrible step, surely to goodness it will not subject pregnant women, disabled or sick people, torture victims, victims of trafficking or gender-based violence, LGBT people or the young and old to that procedure. Perhaps the Minister could accept that amendment, just to give us a tiny crumb of comfort.

[Tom Pursglove]

I will briefly pick up on a few points that have been raised during the debate on clause 26. The Government argue that the suite of measures are intended to have a deterrent effect. The measures under the clause are just one part of system-wide reforms that make clear our position that individuals must claim asylum in the first safe country they reach. I recognise that there are fundamental differences of opinion in the Committee about some matters, but we argue that that is the fastest route to safety.

I want to clarify the situation. Although we are, of course, working with our international partners to meet our joint challenges, I assure Committee members that we are not working with Denmark to open an offshore detention centre. It is important to be clear on that point.

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Article 1(A)(2):well-founded fear

[Stuart C. McDonald]

I beg to move amendment 152, in clause 29, page 30, leave out subsection (2) and insert—

“(2) The decision-maker must first determine whether there is a reasonable likelihood that—

(a) the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and

(b) if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—

(i) they would be persecuted for reason of the characteristic mentioned in subsection (a), and

(ii) they would not be protected as mentioned in section 31.”

This amendment would remove the “balance of probabilities” phrase from the Bill and would maintain the status quo.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 48, in clause 29, page 30, line 45, leave out subsections (2) and (3).

This amendment would remove the requirement for the decision-maker to assess, on the balance of probabilities, whether a claimant’s fear of persecution is well-founded.

Amendment 132, in clause 29, page 30, line 45, leave out

“, on the balance of probabilities”

and insert

“whether there is a reasonable likelihood that”.

Amendment 133, in clause 29, page 31, line 1, leave out “whether”.

Amendment 134, in clause 29, page 31, line 5, leave out paragraph (b) and insert—

“(b) if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—

(i) they would be persecuted for reason of the characteristic mentioned in subsection (a), and

(ii) they would not be protected as mentioned in section 31.”

The amendment would maintain the status quo and bring the bill back in line with UNHCR standards and UK jurisprudence.

Clause stand part.

[Stuart C. McDonald]

The clause makes fundamental changes to important aspects of what it means to be a refugee under the convention. It seeks to require that important elements of the claim are to be established on the balance of probabilities before the decision maker goes on to make an overall assessment of real risk. Previously an overall assessment of the reasonable degree of likelihood of persecution was applied.

We regard this as a hugely dangerous and possibly very confusing clause. It fails to take into account the challenge of evidence and facts that arise many thousands of miles away, or facts to which only the claimant’s testimony can speak to. If, for example, a claim is made on the grounds that a person is LGBT, it can be hugely challenging to prove that to the standard of the balance of probabilities. As the UNHCR has explained:

“Some claimants, because of the shame they feel over what has happened to them, or due to trauma, may be reluctant to identify the true extent of the persecution suffered or feared.”

Similar issues will arise with many other groups that we have already spoken about this morning.

What is proposed is really dangerous. If a decision maker is certain, for example, that LGBT people in general are at risk of persecution on return to a particular country, and even if that decision maker thinks that there is a reasonable likelihood that this particular applicant is LGBT, that would no longer be enough to justify an award of refugee status.

[Mr Goodwill]

The hon. Gentleman is absolutely right that it is very difficult to prove some of these things. It is also difficult to disprove them. Is he aware that asylum seekers from places such as Uganda may well claim to be gay when they are not because they see that as the route to getting a good result quickly?

[Stuart C. McDonald]

I am not aware of the evidence of that, so I cannot comment. At the end of the day we are talking about people who are at risk. We are not talking about a road traffic case, a minor bump or the small claims court. We are talking about people whose lives are at risk, or they are at risk of serious harm and persecution. That is why we have to be very, very careful about requiring evidence beyond the standard that is internationally accepted.

Let us say that a decision maker is certain that LGBT people in general are at risk of persecution on return to a particular country. Even though the decision maker thinks there is a reasonable likelihood that a particular applicant is LGBT, that will not be enough to secure refugee status. The decision maker could be 49% certain that the applicant is LGBT and 100% certain that an LGBT person returned to a particular country will be tortured and killed, but that 1%—that tiny little bit of doubt—means that the balance of probabilities threshold will not be met, and that case will be rejected. The implications are huge.

Amendment 152 seeks to maintain the status quo. Let us not mess with a long-established principle, and let us be very, very careful that we are not denying refugee status to people who we know should be awarded it.

[Tom Pursglove]

I thank hon. Members for tabling the amendments. I agree about the importance of the UK carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under article 1A(2) of the refugee convention. However, we do not agree with the amendments, which, when considered together, will leave decision makers with a lack of clarity on how to consider whether a claimant has a well-founded fear of persecution.

Clause 29 is currently drafted to introduce a clear, step-by-step process for decision makers considering whether an asylum seeker has a well-founded fear of persecution. Currently, there is no clearly outlined test as such. While there is case law, policy and guidance, the current approach leads to a number of different elements being considered as part of one overall decision. The reforms that the Government want to introduce create distinct stages that a decision maker must go through, with clearly articulated standards of proof for each. I am confident that hon. Members will agree that that will lead to clearer and more consistent decisions. That is desirable for all involved.

The amendments include what is already in subsection (4) of clause 29, and it is unclear how they are proposed to fit with subsections (3) and (5). That therefore creates a lack of clarity and defeats the clarificatory purpose of the clause. As identified by hon. Members, clause 29 also raises the standard of proof for one element of the test to the balance of probabilities. Whether an asylum seeker has a characteristic that causes them to fear persecution, also referred to as a convention reason, will be tested to the balance of probabilities.

[Stuart C. McDonald]

There is one further issue that I did not raise earlier. The Minister has spoken about whether an appellant has a convention characteristic. How does the clause deal with imputed characteristics—that is, when a person is not LGBT but is perceived to be, or a person who does not have a political opinion but is treated and thought of as having such an opinion? That is quite an important concept and it seems to be absent.

[Tom Pursglove]

Obviously, we are clear that our proposal is entirely consistent with our obligations under the convention. However, I will happily write to the hon. Member with further detail on that point. It is important to give clarity, and I am keen to do so.

At the clause’s core, we are asking claimants to establish that they are who they say they are and fear what they say they fear, to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts—namely, more likely than not. Surelyit is reasonable that claimants who are asking the UK for protection are able to answer those questions.

We have looked carefully at the difficult situations from which many claimants come and the impact on the kinds of tangible evidence they may be able to provide as a result of that. We consider that our holistic approach to making decisions, which includes a detailed and sensitive approach to interviewing as well as referring to expert country guidance, allows all genuine claimants an opportunity to explain their story and satisfy the test. The raising of the standard of proof for this distinct element of the test is appropriate to ensure that only those who qualify for protection under the refugee convention are afforded protection in the United Kingdom.

[Stuart C. McDonald]

On the hypothetical example that I gave, if a decision maker is 49% certain that somebody is LGBT or that their membership of a political party meant that they would definitely be persecuted on return, is the Minister not uncomfortable that that small shortfall from 50% would mean that their whole claim would be rejected, given the consequences?

[Tom Pursglove]

On the concerns around LGBTQ+ individuals, we have acknowledged that it may be more difficult to prove such claims compared with individuals making applications based on other convention reasons. We already have specific asylum policy instruction on considering such claims, which sets out in detail how caseworkers should fully investigate the key issues through a focused, professional and sensitive approach to questioning. As part of the operationalisation of the programme, we will seek to update the training and guidance provided to decision makers. That will concentrate on interviews, to ensure that they are sufficiently detailed to enable claimants to meet the standard. I hope that gives the hon. Member some reassurance. I will of course write to him on his earlier point.

The second element of the test—whether the claimant would be persecuted if returned to their country of origin or their country of former habitual residence—remains at the reasonable degree of likelihood standard of proof. The subjective element—the future fear—is naturally harder for the claimant to demonstrate. Consequently, a lower standard of proof is appropriate.

Responses to the public consultation as well as recent reports from non-governmental organisations have warned of the effects that the clause will have on those with certain protected characteristics, including those with LGBT+ claims. The Committee should be assured that we have considered that carefully, and there are several ways in which we will ensure that such individuals are not disadvantaged by the change. It is worth reflecting on the points I made and the explanation I set out in response to the hon. Member’s intervention. In the light of those points, I hope he will agree to withdraw the amendment.

[Stuart C. McDonald]

I am grateful for the offer of a letter, but I am not remotely reassured about the new higher standard, which will lead to marginal cases being sent away to persecution, torture and all sorts of terrible consequences. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

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article 1(a)(2): reasons for persecution

[Stuart C. McDonald]

I beg to move amendment 49, in clause 30, page 31, line 47, leave out “both” and insert “either”.

This amendment would mean that – in order to be defined as a particular social group for the purposes of the Refugee Convention – a group would only have to meet one (not both) of the conditions set out in subsections 3 and 4.

I have a short but important point to make. The clause concerns the definition of a particular social group, which is an important concept in refugee law and has been crucial to its ongoing relevance across many decades. The clause is controversial because it makes an important change to how a particular social group is defined. In the House of Lords case of the Secretary of State for the Home Department v. Fornah, a long-standing argument about whether the tests in subsection (3) of the clause should be cumulative or alternative was addressed and it was decided that there was no need to meet both of those conditions; one or the other would suffice. However, in the Bill, the Government have decided to change that approach. It now demands that both conditions are met, and that seems to contradict established case law in this country. I simply ask the Government to explain why they have taken a more restrictive approach.

[Tom Pursglove]

Clause 30 aims to clarify an area where there has been a degree of contradiction and confusion. There is a clear mismatch between how the concept of “particular social group” is set out in current legislation, Government policy and in some tribunal judgments, against the interpretation taken in some case law. That is unhelpful for all those working in and engaging with the asylum system, and who most of all want clarity and consistency. Defining how key elements of the convention should be interpreted and applied is vital in creating a robust system that can generate consistency and certainty, which ultimately will drive efficiency. I trust that members of the Committee will agree with that principle. The historical confusion demonstrates perfectly why what we are doing in this clause is so important and is a desirable law reform.

I cannot agree to the change proposed by the hon. Gentleman. First, it is important to state that the conditions set out in the clause reflect current Government policy; it is not a change. The amendment would mean that a group need only meet one of the conditions to be considered as a particular social group. That significantly broadens the scope of who may be covered by the convention. It would erode the concept that people deserve and need protection based on fundamental characteristics that go to the core of who they are, such as their faith or sexuality. It proposes instead to broaden the definition to cover potentially transient factors that can perhaps be changed, but that fundamentally misunderstands the very basis of what it means to be a refugee, as envisaged by the refugee convention, and why we have a system to offer protection. I hope my explanation has reassured colleagues across the Committee, and I urge the hon. Gentleman to withdraw the amendment.

The hon. Gentleman has mentioned established case law on the correct definition of “particular social group”, so I will say something briefly about that. As with many of the key concepts of the refugee convention, case law has developed over the years on how to apply the term “particular social group” for the purpose of considering whether a claimant has a convention reason. Despite significant judicial interest in the interpretation of “particular social group” in case law, there is no established case law on the point. There is, however, conflicting tribunal-level case law and obiter comments by the House of Lords in the case of Fornah. Consequently, the clause seeks to provide clarity on the UK’s interpretation of a particular social group, to ensure that it is applied consistently among decision makers.

[Stuart C. McDonald]

I agree with the Minister that we need clarity, but there are two different ways of providing clarity: we can either combine the requirements or use them as alternatives. I say that we should provide clarity by using them as alternatives. That is how the House of Lords interpreted the convention in the case of Fornah, and that is what the tribunal did recently as well, so I wish to press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Stuart C. McDonald]

I beg to move amendment 157, in clause 34, page 33, line 20, at end insert—

“(1A) Subsection (1) shall not apply to any refugee—

(a) whose claim for asylum is on the basis of sexual orientation, gender identity, gender expression or sex characteristics;

(b) whose claim for asylum is on the basis of gender-based violence;

(c) who has experienced sexual violence;

(d) who is a victim of modern slavery or trafficking;

(e) who is suffering from a mental health condition or impairment;

(f) who has been a victim of torture;

(g) who is suffering from a serious physical disability;

(h) who is suffering from other serious physical health conditions or illnesses.”

This amendment would exempt certain groups from subsection (1).

[The Chair]

With this it will be convenient to consider amendment 158, in page 33, line 34, at end insert—

“(2A) Subsection (2) shall not apply to any refugee—

(a) whose claim for asylum is on the basis of sexual orientation, gender identity, gender expression or sex characteristics;

(b) whose claim for asylum is on the basis of gender-based violence;

(c) who has experienced sexual violence;

(d) who is a victim of modern slavery or trafficking;

(e) who is suffering from a mental health condition or impairment;

(f) who has been a victim of torture;

(g) who is suffering from a serious physical disability;

(h) who is suffering from other serious physical health conditions or illnesses.”

This amendment would exempt certain groups from subsection (2).

[Stuart C. McDonald]

The clause relates to article 31 of the convention, which provides refugees with immunity from certain penalties. It is an important protection that the Government are seeking to limit by, in my view, reinterpreting and undermining article 31, and setting out expectations of where and when individuals should claim that go beyond the letter and spirit of the convention.

The amendments take us back to this morning’s discussion about why it was especially inappropriate to place these requirements and expectations on particular groups, including victims of trafficking, sexual violence and torture. They are designed to pose a question to the Minister: why is he seeking to strip such groups of their immunity from penalties that the refugee convention provides?

[Tom Pursglove]

Again, I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for all their hard work in this area and in producing these amendments. As they will know, the provisions they are seeking to amend are crucial to the Government’s intention to uphold the first safe country of asylum principle. In this respect, these clauses are designed to deter dangerous journeys across Europe by no longer treating migrants who come directly to the UK and claim without delay in the same way as those who do not. I am sure they will agree that we must do everything in our power to stop people putting their lives in the hands of smugglers and making extremely perilous journeys across the channel.

Amendments 157 and 158 would apply to clause 34, which is closely related to clause 10 in that it sets out the UK’s interpretation of certain criteria within article 31(1) of the refugee convention. The criteria in article 31 provide the basis for the legal framework we are using to differentiate within clause 10. The intention of the amendments is to seek statutory carve-outs from differentiation for a wide range of cohorts.

I absolutely understand where this is coming from. I would like to reassure hon. Members that the powers in clause 10 do not compel the Secretary of State to act in a certain way, and leave discretion to impose or not impose conditions as appropriate, depending on the individual circumstances. We will of course set out our policy in immigration rules and guidance in due course. The policy will be exercised with full respect to our international obligations and will most certainly be sensitive to certain types, some of which are referenced in the amendment, such as having been trafficked.

I would note that blanket carve-outs are an attractive option to ensure protection of the most vulnerable, but ultimately I do not believe it would appropriate to do this in the way amendments 157 and 158 seek. In reality, blanket carve-outs would simply encourage people coming by small boat to claim they belonged to an exempted cohort. Most importantly, this would of course prevent us from protecting those people who do genuinely have those characteristics. By creating this perverse incentive, it would also undercut the entire purpose of the policy to serve as a deterrent. Indeed, people could then simply continue to make dangerous journeys to the UK and not claim in the first safe country because they know they can avoid group 2 refugee status simply by saying that they are LGBT+ or have a mental health condition.

For all these reasons, I invite the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East not to press their amendments.

[Stuart C. McDonald]

Obviously, we maintain a fundamental opposition to the whole scheme proposed by this clause and clause 10. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald]

I beg to move amendment 50, in clause 34, page 34, line 1, leave out paragraph (b) and insert—

“(b) in subsection (3), after (b), insert—

“(ba) entry in breach of a deportation order, entry without leave, remaining in the United Kingdom without leave, or arriving in the United Kingdom without entry clearance under section 24 of the 1971 Act”;

(c) in subsection (4), after (c), insert—

“(ca) entry in breach of a deportation order, entry without leave, remaining in the United Kingdom without leave, or arriving in the United Kingdom without entry clearance under section 24 of the 1971 Act””.

This amendment would mean that individuals who committed these offences (and the other offences set out in section 31 of the Immigration and Asylum Act 1999) would be able to use the defence set out in section 31 of that Act, even if the offence was committed in the course of an attempt to leave the UK.

Again, I want to prompt the Government—perhaps optimistically—for their thinking on the compatibility of these provisions with the convention. The amendment would mean that individuals charged with certain offences could still rely on defences provided by the convention, even if the offence was committed in the course of an attempt to leave the UK. It is important that the Government explain clearly why they think that removing that possibility is consistent with the convention. To be honest, I am struggling to understand the Government’s reasoning.

[Tom Pursglove]

Amendment 50 is extensive. I thank the hon. Member for the considerable thought he has put into the amendment, which would list the illegal entry, arrival without clearance and remaining in the UK without leave offences as subject to the statutory defence against prosecution. However, the express statutory defence under section 31 of the Immigration and Asylum Act 1999 has never applied to the existing offences referred to in amendment 50. We do not consider the new arrivals without entry clearance offence needs to be referred to expressly for the same reason. Where relevant in a particular case, the Crown Prosecution Service will take into account the UK’s obligations under article 31 of the refugee convention.

Another effect of amendment 50 would be to reverse our clause 34(4) and reintroduce a defence from prosecution for those transiting through the UK having entered illegally and intending to go and claim asylum elsewhere, such as Canada or the USA. I disagree that the statutory defence should extend to those who have tried to exit the UK without first seeking asylum, but I reassure hon. Members that that does not mean that every asylum seeker who tries to exit the UK will be prosecuted. We are targeting for prosecution those migrants where there are aggravating factors involved—for example, causing danger to themselves or others, including rescuers; causing severe disruption to services such as shipping routes or closure of the channel tunnel; or where they are persons who have previously been removed from the UK as failed asylum seekers.

We have of course been very clear that people seeking protection must claim in the first safe country they reach. That is the fastest route to safety. In the same way that we will not tolerate smugglers exploiting vulnerable people to come to the UK when a claim could easily be made in another safe country, we will also not tolerate those migrants who transit through the UK, having previously travelled through European countries, to reach other places. They must claim in the first safe country they reach. For those reasons, I invite the hon. Member to withdraw his amendment.

[Stuart C. McDonald]

It is useful to have that on the record. I will go away and give it some further thought. We maintain our fundamental opposition to the whole scheme, but, in the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 ordered to stand part of the Bill.

Clause 35

Article 33(2): particularly serious crime

[Stuart C. McDonald]

I beg to move amendment 51, in clause 35, page 34, line 1, leave out sub-paragraph (i).

Under this amendment, persons receiving certain prison sentences in the UK shall be presumed (as at present) but not automatically deemed (as proposed in the Bill) to have committed a particularly serious crime.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 53, in clause 35, page 34, line 21, leave out “12 months” and insert “four years”.

Under this amendment, persons shall be deemed to have committed a “particularly serious crime” if they receive a prison sentence of more than four years in the UK (as opposed to two years at present, or 12 months as proposed in the Bill).

Amendment 52, in clause 35, page 34, line 24, leave out sub-paragraph (i).

Under this amendment, persons receiving certain prison sentence outside the UK, or persons who could have received such a sentence had they been convicted in the UK, shall be presumed (as at present) but not automatically deemed (as proposed in the Bill) to have committed a particularly serious crime.

Amendment 54, in clause 35, page 34, line 27, leave out paragraphs (b) and (c) and insert—

“(b) in paragraph (b), for “two years” substitute “four years”;

“(c) in paragraph (c), for “two years” substitute “four years””.

Under this amendment, persons shall be deemed to have committed a “particularly serious crime” if they receive a prison sentence of more than four years outside the UK (as opposed to two years at present, or 12 months as proposed in the Bill), or if they could have received such a sentence had they been convicted in the UK.

Clause stand part.

[Stuart C. McDonald]

The amendment is a probing one. The basic point is that if someone is at risk of persecution, we must be incredibly careful when creating gaps, loopholes and exceptions that would still see that person subject to removal to the very place where they would be at risk. The convention creates and recognises very specific exceptions to the fundamental principle of non-refoulement.

If someone is a danger to security here or has committed a particularly serious crime, they constitute a danger to the community. The amendment challenges the attempts in the clause to broaden the scope of the exceptions so that persons are automatically deemed and not just presumed to have committed a serious offence if they are sentenced to one year in prison, rather than two years. We have particular concerns about the circumstances where the crime has been committed overseas. How do the Government intend to be sure about the safety and appropriateness of prosecution, conviction and sentence?

Nobody is saying that refugees should not face appropriate punishment for their crimes, but the danger is that those sentenced to one year or more face an additional punishment that puts them at risk of persecution, torture and death. That is way beyond what is merited by the crime. The withdrawal of refugee rights should not be done in anything other than the most serious circumstances. We fear that the clause goes beyond what the convention envisages.

[Bambos Charalambous]

I just wish to add to the points made by the SNP spokesperson. The whole UK criminal justice system is based on having magistrates courts that deal with the less serious offences, which have a maximum sentence of up to 12 months, and we then have the Crown court, which deals with the more serious offences, with a sentence above 12 months. Defining something as serious with 12 months’ imprisonment seems to be contrary to other aspects of our judicial system.

Labour also has concerns about people who have been trafficked who may have been forced to commit offences. They may have been convicted of a criminal offence as a result of their trafficking, whether that is because of drugs, prostitution or another such offence that might attract a penalty above 12 months. We have some concerns about the redefinition and I wonder whether the Minister can clarify what might happen to someone who has been trafficked, has committed an offence and has received a sentence of 12 months. Would the clause apply to them, because that does raise concerns about it? I do not know whether he will be able to assist in that regard.

--- Later in debate ---

[Tom Pursglove]

My right hon. Friend puts the matter in a way that only he can. To raise the definition to a level that captures only crimes that have resulted in a sentence of four years or more imprisonment would be reckless, and would undermine the aims of the new plan for immigration to build a fair but firm immigration system. It would clearly send the wrong, and dangerous, message that the UK welcomes and rewards serious offenders. I do not believe that the people of the UK want that. The amendments would mean that individuals who commit some of the most serious crimes would continue to receive the generous benefits of refugee status in the United Kingdom. Their continued presence in the UK could also lead to avoidable reoffending. The Government would not be upholding their responsibility to protect the public of the United Kingdom by supporting the amendments.

The hon. Member for Enfield, Southgate queried the process for a person who has been trafficked. I can confirm that such a person will be tested under the second limb for whether they amount to a danger to the community. With regard to offences committed overseas, section 72(3)(c) of the Nationality, Immigration and Asylum Act 2002 contains a provision to ensure that any convictions abroad would result in a sentence of 12 months or above in the UK for a similar offence.

In the light of those points, I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will withdraw the amendment, and that the Committee agree that the clause stand part of the Bill.

[Stuart C. McDonald]

It is useful to have that on the record. I do not think that all the points were addressed, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.

Clause 36

Interpretation of Part 2

[Stuart C. McDonald]

I beg to move amendment 55, in clause 36, page 35, line 14, at end insert—

“‘protection in accordance with the Refugee Convention’ means a legal status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention”.

This amendment would define – for the purposes of Part 2 of the Bill – what constitutes protection in accordance with the Refugee Convention.

[The Chair]

With this it will be convenient to discuss amendment 135, in clause 36, page 35, line 27, at end insert—

“‘protection in accordance with the Refugee Convention’ means a legal status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention.”

This amendment would clarify the meaning of “protection in accordance with the Refugee Convention” and ensure that it includes the positive rights and obligations necessary to ensure durable and humane solutions, and not merely protection against refoulement.

[Stuart C. McDonald]

Certain very important provisions in the Bill refer to a state providing protection in accordance with the convention. In particular, it is incredibly important to the inadmissibility provisions in justifying removal to so-called safer countries. We need to define it, and we would do so through amendment 55 by referencing all the rights set out in the refugee convention. We thereby seek to ensure that the standards of that convention have been fully upheld. The amendment poses the question to the Government of whether they are a champion of the full range of rights in the convention, or are requiring people to claim asylum in countries where little more than lip service is paid to it, and nothing more than a protection against refoulement is provided. That is the issue at stake, in a nutshell.

[Bambos Charalambous]

In order to save time—I know that we have had a very long day—I will bear in mind that the wording of amendment 135 is almost identical to that of the amendment tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. He did it justice when speaking to it, and we will support it.

[Tom Pursglove]

I thank hon. Members for tabling the amendments. I have listened carefully to the arguments that they have put forward. I agree about the importance of the United Kingdom continuing to meet its obligations under the refugee convention, including through the rights that we provide to refugees. The amendments to clause 36 relate to the inadmissibility provisions set out in clause 14. I understand the spirit of the amendments in wishing to define protection in accordance with the refugee convention where we may seek to remove an individual to a safe country. However, clause 14 as drafted ensures that the principles of the refugee convention should be met if we are to remove an individual to that country.

If individuals have travelled via, or have connections to, safe countries where it is reasonable to expect them to have claimed asylum, they should do so. They should not make unnecessary and often dangerous onward journeys to the UK; however, if they do, we will seek to remove them to a safe country. We will only ever return inadmissible claimants to countries that are safe and where the principles of the refugee convention are met. For those reasons, I cannot support the amendments, and I ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw amendment 55.

[Stuart C. McDonald]

Again, it is useful to have that on the record. The Minister defends the clause as it is by referencing the protection that clause 14 provides on the principles of the refugee convention, but when I asked him what that meant earlier I was not remotely satisfied by the answer. It is another clause that is completely undefined, so I wish to press amendment 55 to a vote.

Question put, That the amendment be made.