Nationality and Borders Bill (Ninth sitting)

Stuart C McDonald Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[The Chair]

Good morning, ladies and gentlemen. Before we start, I ask Members to ensure that their electronic devices are either switched off or on silent. Members are encouraged to wear masks at all times, except when speaking, but I entirely accept that it is a matter of personal choice, and of necessity in some cases. I understand from the usual channels that we might sit past 5 o’clock. I put that on the record so that Members can adjust their diaries accordingly should that be necessary, although it may not be. The reason, as some Members might not understand, is that come 4 November at 5 o’clock, the guillotine comes down, which means that anything undebated in the Bill remains undebated in Committee, so it is necessary to pace the pitch backwards. We hope to get through all the work in a timely fashion, but we are putting down a marker. If Ms McDonagh is not available to take the Chair this evening, I shall. Hansard and the Doorkeepers have been informed as well.

Clause 14

Asylum claims by persons with connection to safe third State: inadmissibility

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move amendment 56, in clause 14, page 17, line 31, at end insert—

“(d) there are in law and practice—

(i) appropriate reception arrangements for asylum seekers;

(ii) sufficient protection against serious harm and violations of fundamental rights;

(iii) protection against refoulement;

(iv) access to fair and efficient state asylum procedures, or to a previously afforded refugee status or other protective status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention;

(v) the legal right to remain during the state asylum procedure;

(vi) a grant of refugee status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention for those found to be in need of international protection;

(e) it is safe for the particular claimant, taking into account their individual circumstances.”

This amendment modifies the definition of a “safe third State”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 18, in clause 14, page 17, line 33, leave out “5” and insert “3”.

This amendment is consequential on a later amendment about the definition of “connection”.

Amendment 19, in clause 14, page 17, leave out lines 35 to 38.

This amendment removes subsection (6), which states that a claimant whose asylum claim has been denied by virtue of their connection to a particular safe third State may be removed to any other safe third State.

Amendment 20, in clause 14, page 17, line 40, leave out “may” and insert “must”.

In cases where it is unlikely to be possible to remove the claimant to a safe third State, or in other exceptional circumstances, this amendment would require otherwise inadmissible claims to be considered under the immigration rules.

Amendment 21, in clause 14, page 17, line 41, leave out line 41 to line 2 on page 18 and insert—

“(a) in the absence of a formal, legally binding and public readmission agreement between the United Kingdom and the State to which the person has a connection;

(b) as soon as the proposed State of readmission refuses to accept the person’s return or if the person’s readmission has not been agreed within three months of the registration of their asylum claim, whichever is sooner;

(c) if, taking into account the claimant’s personal circumstances, including the best interests of any children affected by the decision, it is more appropriate that the claim be considered in the United Kingdom;

(d) in such other cases as may be provided for in the immigration rules”.

This amendment broadens the circumstances in which the Secretary of State must consider an asylum application, despite a declaration of inadmissibility.

Amendment 22, in clause 14, page 18, line 13, leave out line 13 and insert—

“(a) has been granted refugee status or another protective status in the safe third state that is inclusive of the rights and obligations set out at Articles 2 to 34 of the 1951 Convention”.

This amendment would strengthen the safeguards in place before a “connection” can be relied on for the purposes of inadmissibility.

Amendment 23, in clause 14, page 18, leave out lines 16 to 24.

This amendment changes the definition of a “connection” to a safe third State.

Amendment 24, in clause 14, page 18, leave out lines 35 to 37.

This amendment changes the definition of a “connection” to a safe third State.

Amendment 25, in clause 14, page 18, leave out lines 38 to 43 and insert—

“(6) For the purposes of this section, a “relevant claim” to a safe third State is a claim for refugee status or other protective status that is inclusive of the rights and obligations set out at Articles 2 to 34 of the 1951 Convention.”

This amendment changes the definition of a “relevant claim” to a safe third State.

Amendment 26, in clause 14, page 18, line 46, at end insert—

“80D Conditions for implementation of section 80B

(1) The Secretary of State may not make a declaration under section 80B(1) in relation to any State unless there are in place reciprocal arrangements with that State by which—

(a) that State has agreed to receive from the United Kingdom a person with a connection to it; and

(b) the United Kingdom has agreed to receive from that State a person who has made an asylum claim in that State who has a connection to the United Kingdom.

(2) For the purposes of subsection (1), any reciprocal arrangements must provide for the period within which a State is to receive a person from the United Kingdom; and any declaration made under section 80B(1) shall cease to apply if that period has passed and the person remains in the United Kingdom.

(3) The period to which subsection (2) refers must not be longer than 6 months from the date the asylum claim to which it relates is first made.

(4) Notwithstanding subsection (3), the passing of the period shall not prevent the transfer of a person from the United Kingdom to another State in which the person has a family member and to which the person wishes to be transferred.

(5) The Secretary of State may not make a declaration under section 80B(1) in relation to any person who—

(a) has a family member in the United Kingdom;

(b) has been lawfully resident in the United Kingdom;

(c) has worked for or with any United Kingdom Government body or other body carrying out work for or sponsored by the United Kingdom Government; or

(d) has a family member who has been lawfully resident in the United Kingdom or worked with or for such a body.

(6) In this section—

“a family member” means a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece.”

This amendment would prevent the Secretary of State from rejecting asylum claims on the grounds that the claimant has a connection to a safe third State unless the UK has reciprocal arrangements with that State.

Clause stand part.

[Stuart C. McDonald]

It is a pleasure to serve under your chairmanship again, Sir Roger. I will speak to amendment 56 and the other amendments in the group, and against the clause, as currently drafted, standing part of the Bill. The clause allows the Secretary of State to declare asylum claims inadmissible on the grounds that she considers the person has a connection to a safe third state. That brings us to another provision in the Bill in relation to which we allege profound inconsistencies with the refugee convention—no doubt those will have been discussed when the Minister met with the United Nations High Commissioner for Refugees last week.

That inconsistency is one of the reasons why we believe the clause should not stand part of the Bill. Another reason is that we already know it does not work, because a version of this scheme has been in place in the immigration rules since the start of the year. It is incumbent on the Minister to provide the evidence that the provision has achieved anything remotely along the lines of what was intended. From the information that I have seen, it has achieved nothing of the sort.

Those immigration rules were put in place because, with the end of the transition period, the applicability of the EU’s Dublin rules came to an end. That created a significant problem for the Government as they had no replacement agreement in place with the EU under which individuals who would more appropriately have their asylum claim processed elsewhere could have their case transferred there. The clause is not a replacement for Dublin, but a dreadful, one-sided, pale imitation of it, and it is incompatible with the refugee convention.

The Dublin regulations were far from perfect but, first, they included important safeguards that are totally absent from the Government’s scheme, and they contained some restrictions on the grounds for transfer, whereas here the connection can be flimsy indeed, including mere transmit. Secondly, the Dublin rules are two-way. People could be transferred here from the EU or could remain here if they had connections to the UK, such as family, that made it appropriate for asylum claims to be considered in this country. Under the rules that the Government are offering, it is one-way only. The absence of such provision means that, unlike Dublin, this is not about responsibility sharing; it is about responsibility offloading.

The UK is failing to live up to its international obligations and hoping that somebody else will pick up the slack. More often than not, that will be a country that already supports larger numbers of refugees and processes far more asylum claims, including France, Germany, Belgium, the Netherlands, Italy and Greece—all highlighted by the Home Secretary at Second Reading.

Thirdly, the Dublin rules represented an agreed framework between member nations. Other countries had actually agreed in principle to take people back. In contract, the scheme set out in the immigration rules and in this Bill, as it stands, is a Home Office pipe dream. There are no agreements with our neighbours to take back those whose claims have been deemed inadmissible. In essence, the Home Office is suspending consideration of asylum claims for six months, even with no realistic prospect of removing more than an handful of people to have their claims considered by other countries. It simply adds another six months of limbo to these people’s lives, at a time when there is already a massive waiting time.

The latest figures I have read showed that something like 4,500 asylum seekers had been subject to the inadmissibility procedures since they came into effect in January. I think seven had ultimately been found inadmissible, and nobody had been removed. Those figures will have changed since then, and I look forward to receiving the updated figures, but what a disaster that represents. Freedom of information requests have confirmed that thousands of cases, including hundreds of Eritreans, Syrians and Afghans, have been served with inadmissibility notices, even though the Home Office knows that, for all intents and purposes, it will not be possible to remove them to so-called connected safe third states.

This is a waste of officials’ time, adds six months to the backlog and adds to, rather than resolves, the problems with the UK asylum system. I would ask the Minister, in responding, if he has calculated how much money the Home Office has spent supporting and accommodating people declared inadmissible only for the Home Office then to start assessing their claims six months down the line. As it stands, clause 14 should not form part of the Bill.

The amendments in this group prompt the Government to think about safeguards that could enable the clause to be consistent with the refugee convention, including restrictions and reciprocity. Amendment 26 tries to do that in a comprehensive but succinct way, while the other amendments probe more deeply into certain aspects of the clause as drafted.

Amendment 26 would basically add a new clause into the Nationality, Immigration and Asylum Act 2002, alongside the Home Office clauses, to fix the failures highlighted. Subsections (1) to (3) would require that an arrangement is in place with the third country, so there is no mass service of inadmissibility notices on people who there is no prospect of removing. Subsection (1) would also address the absence of reciprocity by ensuring that the agreement is a reciprocal one, so the Home Secretary can operate an inadmissibility regime only in relation to countries that are able to send people here or transfer claims here as well. Thus, for example, people with a family connection to the UK are able to have their claims considered in this country, and other examples are given in the amendment. As it stands, people’s connections, such as with family—even their closest family members—as well as language, previous residence in the UK or working for UK entities, including the British Army, are all totally overlooked by the Government’s scheme.

The remaining amendments in this group probe in more detail how the Government will ensure various other vital protections are in place. They take into account the published legal opinion of the United Nations High Commissioner for Refugees on the concept of inadmissibility and some of the criticisms raised there. Amendment 56 seeks to ensure that the rights of asylum seekers will be fully protected in the country to which the Government are seeking to transfer the claim.

As it stands, the definition of a safe third state is really pretty pathetic. So long as your life and liberty are not at risk for a refugee convention reason and that some sort of asylum process is in existence, off you go. There could be an almost certain risk of human rights breaches, albeit falling short of a threat to life or liberty, and that would not matter. There could be a threat to life, but for a non-convention reason, and again it seems that it does not matter, and the country is still deemed safe.

The wording of the safe third state definition is troubling from all sorts of angles. For example, the clause states that a country is safe if “a person” can apply for refugee status and “a person” will not be removed in contravention of the convention, without specifically asking the question, “Will this individual that we want to declare inadmissible be at such a risk?” It is not robust enough either in what it requires for access to asylum and refugee procedures. It simply says that a person may apply and receive protection in accordance with unspecified principles of the convention.

As I read clause 14 just now, if I was at risk in a proposed country I had a connection to because of new autocratic rules or a ruler who decided they wanted capital punishment for people with red hair, it would still very likely meet the definition of a safe country, because my life would not be threatened for a convention reason—arguably, it could be a particular social group, but it is not clear—and if I had previously made a claim there and it had been refused, apparently I am connected enough to be required to go back there. If I am wrong about that, I look forward to the explanation of how that would apply in these particular circumstances.

Amendment 56 therefore surely sets out totally unobjectionable safeguards about which we can all agree, so that—not just on paper, but in practice—fundamental rights are going to be respected, there are appropriate reception arrangements for asylum seekers, there is access to fair and appropriate asylum procedures, and the full convention of refugees must be available if accepted as a refugee.

Amendment 19 again seeks information from Ministers about their intentions in relation to a new provision that allows them to deny an asylum claim on the basis of a connection to country A, but instead remove that person to country B, even when, it seems, there is no connection. I guess that is a foretaste of the debate we will have on clause 26, but this is an extraordinarily wide provision and it is not constrained by any assessment of the appropriateness or otherwise of the transfer in the circumstances of the individual person.

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

Does the hon. Gentleman accept that any country that meets the Copenhagen criteria, by virtue of being either a member of the European Union or an accession country, would be, by definition, a safe country?

[Stuart C. McDonald]

It almost certainly would, and it would meet the criteria in the Bill. However, that is not really the issue, because, as drafted, the definition of “safe country” goes way beyond who would meet those criteria in the EU. That is what I am driving at. Again, we struggle to see how clause 14 can be justified and how it can possibly be said to be appropriate or consistent with the convention. As the UNHCR put it:

“This would be a significant break from…international practice”.

Amendment 20 would simply mean that if there is no reasonable likelihood of removal to a third country in a reasonable period or there are exceptional circumstances that mean that the Home Secretary should consider the claim, then she “must” do so. As it stands, she “may” do so, but she also may not. Surely it is odd to want to give the Secretary of State the power not to consider a claim when she has decided that

“the claim should be considered”.

The amendment should probably also have taken out the reference to “exceptional circumstances”. After all, if the unexceptional circumstances suggest that the claim should be decided here, where is the logic in not doing that?

Amendment 21 sets out circumstances in which claims should, on any reasonable view, be processed here rather than attempts made to move them elsewhere. In short, if there is not an agreement with a third country that will allow for the transfer of cases, the Home Office should just get on with considering it. If the third country refuses the transfer or does not reply in three months, the Home Office should, again, just get on with considering the case. And if in the circumstances, including the best interests of any children affected, it is better for the claim to be decided here, the Home Office should get on and do it.

Amendments 18 and 22 to 24 take us to the current definition of “connection” to be introduced into law by clause 14. Amendments 23 and 24 remove from the Bill two circumstances in which it is currently said that a connection is sufficient for the purpose of the inadmissibility regime. Amendment 24 would remove what is termed “condition 5”, which is so vague as to be almost incomprehensible and allows the Secretary of State to decide that a connection has been established in an almost unlimited number of scenarios. There is reference to “the claimant’s particular circumstances” but no explanation of what is meant by that.

Amendment 23 takes out “condition 2”, so that a connection can be provided only by proper and full-blown refugee status in accordance with the convention, and not a substandard or pale imitation of it. Amendment 22 puts the full-blown refugee status as a possible connection in the clause.

Amendment 25 is similarly motivated. In short, if the making of an asylum claim in another country is to establish the connection necessary for an inadmissibility declaration, it must be the case that the protection status offered in that other country to a refugee is fully compatible with the 1951 UN refugee convention. Again, it is absolutely not enough for a substandard asylum regime to be in place, and it would be outrageous for the UK Government to say otherwise and to be seen to be tolerating the watering down of refugee rights across the globe.

All these amendments provide ways to fix the flaws in the scheme. We could also have tabled other amendments to fix the inability of anyone to challenge inadmissibility decisions on any grounds. The Government say that this is all about deterring onward movements from France and other neighbours, but the clause is drafted in a way to allow removal to any old regime, regardless of how they treat asylum seekers and refugees. That is not remotely good enough, so the Minister must accept the flaws in the drafting and engage with the UNHCR on changing them.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I speak in support of the Scottish National party amendments and against clause 14 standing part. Once again, we are faced with a draconian, punitive clause that we the Opposition believe risks putting vulnerable people in danger and depriving them of the protection that they deserve under international law. I will begin by setting out what clause 14 does. Again, I thank the many sector organisations that have helped us to analyse the likely impacts of the clause.

Clause 14 puts in the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through a safe country or if they have a connection to a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the United Kingdom’s asylum system for a “reasonable period”—currently defined as six months by Home Office policy—while the UK seeks to transfer them to “any other safe country”.

Before getting to the extremely problematic moral and legal aspects of clause 14, I want to draw hon. Members’ attention to the unworkable practical aspects of it. Members know that the current regime is unworkable even as it stands because the UK Government do not have returns agreements with European Union member states, namely the “safe third countries” that refugees are most likely to have passed through. With the huge backlog and delays currently in the system, it is truly impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.

Any Member who is familiar with dealing with asylum cases will be only too familiar with cases that have dragged on for years and seemingly been lost in the system, and the many refusal cases that are overturned on appeal. The current system is not working and by adding extra time to it before a case can even begin suggests a huge increase in the processing backlog. As an ex-lawyer, I know that justice delayed is justice denied, and therefore I have grave reservations about the time stipulations in the clause.

To put the Government’s actions so far into greater context, it is worth noting that in the first six months after implementation of the inadmissibility provisions of the immigration rules—they are echoed in the statutory provisions we are currently considering—the asylum claims of more than 4,500 people were put on hold by the issuance of notices of potential inadmissibility. Incredibly, the UK sought to transfer only seven of those cases—seven out of 4,500. Surely that demonstrates that the concept of inadmissibility is deeply flawed, and that attempts to enforce it by statute, as currently envisaged in clause 14, are equally flawed.

To make matters even worse, the inadmissibility rules set out in clause 14 have a far broader reach than anything that has gone before. First, let us consider the clause’s reference to a “safe third country”. The clause creates a disturbingly low standard for when a state would be considered safe for a particular claimant. The criteria are that their

“life and liberty are not threatened there by reason of their race, religion, nationality, membership of a particular social group or political opinion.”

That state must be one from which “a person” will not be removed in breach of a non-refoulement obligation under the refugee convention or the European convention on human rights, and that “a person” may apply for refugee status there and, if recognised, receive protection in accordance with the refugee convention. According to clause 14, therefore, a country could still be considered safe even if the applicant had been, or perhaps continues to be, at real risk of being subjected to human rights violations in that country which either fall short of threats to life or liberty, or to which they were not exposed for reasons of a refugee convention ground.

Equally worrying is that, according to clause 14, although that safe state must be one in which in general a person “may” apply for refugee status and receive protection

“in accordance with the Refugee Convention” ,

it is not clear from the terms of the Bill that that possibility needs to be available to the particular applicant. Given the reference in the Bill to “a person”, it appears that it may be sufficient that, in general, there is the “possibility” of applying for refugee status in that state. That is hardly reassuring. In fact, it means that the supposed “safe” third country might not be at all safe for any particular individual. That surely makes a mockery of the term “safe” as commonly understood.

In addition, in order to be found to have a connection to a safe third state, the particular applicant need not have had a reasonable opportunity to access refugee status there. It is worth examining that in more detail. The terms of the clause imply that although the state would have to be one in which, in general, the possibility existed for a person to apply for refugee status, an individual claimant could be found to be inadmissible because they had received nothing more than protection against removal, in violation of the refugee convention or article 3 of the ECHR, or had made or had a reasonable opportunity to make a “relevant claim” for such protection in that state.

Furthermore, we need to look at the use of the term “connection” in clause 14. The clause makes it clear that the mere presence in a safe state where it would have been reasonable to expect the applicant to make a “relevant claim” would be sufficient to establish a “connection”. That in turn would be enough to trigger inadmissibility. Overall, the use of the term “connection” is nothing short of Orwellian. The framing of that term suggests that it could be an otherwise unelaborated connection—in other words, in the claimant’s particular circumstances, it would have been hypothetically reasonable for them to have gone to a given state to make such a claim, even if they had never been there.

--- Later in debate ---

[Tom Pursglove]

It is fair to say that the Committee had an extensive debate about this issue last week in relation to earlier clauses. I would refer the hon. Member to the comments read out in the Committee from a previous Bill Committee under the last Labour Government, where the principles we are talking about here were very firmly established and endorsed. They have underpinned the approach that has been taken on these matters under successive Governments in this country, and we continue to believe that they are applicable.

I wholeheartedly agree with the importance of the UK continuing to meet its obligations under the refugee convention, including through the rights that we provide to refugees in the UK. I understand the spirit of amendment 56 in defining a safe third state in a way that ensures that an individual removed to that country is provided with adequate protection and their individual rights as a recognised refugee under the refugee convention. However, the definition of a safe third state as set out in clause 14 already ensures that the principles of the refugee convention should be met if we are to remove an individual to that country.

[Stuart C. McDonald]

The term “the principles of the refugee convention” is vague. What do the Government mean by that?

[Tom Pursglove]

As we have repeatedly made very clear during the passage of the clauses we have already debated, our obligations are being properly upheld through the provisions of this Bill. We believe that the Bill is fully compliant, and I maintain that that remains the case. The approach is not new; it has been part of our previous legislation on safe countries. We will only ever return inadmissible claimants to countries that are safe, so I do not agree that the amendment is necessary.

--- Later in debate ---

[Tom Pursglove]

The hon. Gentleman says from a sedentary position that it is not a convincing argument. The bottom line is that we are not removing people to Afghanistan based on the current circumstances. I think that is the right approach.

The ability to return an individual declared inadmissible to any safe country, and not just the safe third country they have a connection to, has formed a part of our inadmissibility process since the changes to our immigration rules in December 2020. In seeking to remove that ability, amendment 19 would remove a provision that Parliament has already been provided an opportunity to scrutinise.

[Stuart C. McDonald]

We all know that there is no scrutiny with these things in any real sense, but that is not a justification for the change. On what possible grounds can a connection with a country A justify removal to country B? What is the point?

[Tom Pursglove]

Again, we have had extensive debates in Committee about the approach that the Government are seeking to take on these matters. We have to stop these dangerous, unacceptable crossings of the channel. We believe that the deterrent effect is very important.

Amendments 18 and 22 to 25, taken together, seek to narrow the meaning of whether we consider an individual to have a connection to a safe third country, and therefore whether it is appropriate to consider them inadmissible. 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, rather than making dangerous and unnecessary onward journeys to the UK.

We already have in place a well-established process, should it become clear that an individual cannot be returned to a safe country or if after a reasonable period no return agreement has been possible. Where that is the case, the individual’s asylum claim will be considered in the UK. The Bill provisions will not change that. Therefore, I do not agree that amendments 20 and 21 are required.

Agreements by a safe third country to accept an asylum seeker may not always be via a reciprocal arrangement. I believe it is right to also seek returns on a case-by-case basis where appropriate.

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[Tom Pursglove]

The simple reality is that we will not return people to countries where to do so would put them in danger, or where their rights would not be respected and upheld. That is a perfectly correct approach to take, and entirely in line with what people would expect.

[Stuart C. McDonald]

rose—

[Tom Pursglove]

I will give way, but I am very conscious that I want to make some progress.

[Stuart C. McDonald]

I absolutely accept that that is the Minister’s intention. He is not going to remove people; he is going to do all he can not to remove people to unsafe countries. The problem is: what about the next Minister responsible for immigration? As drafted, this definition of safe third state allows his successor to remove somebody to a place where they are at risk of serious human rights abuses, albeit falling short of a threat to life and liberty—it could be torture or whatever else, just as long as it is not a convention ground. I accept that the Minister is going to do the right thing, but we need a Bill that has proper constraints on the next Minister to come along, and that is not clear.

[Tom Pursglove]

The provisions, as drafted, define safe countries as states where people would not be at risk of persecution or a breach of their article 3 ECHR rights. The provisions are considered and consistent with our obligations under the refugee convention. An individual will have an opportunity to raise specific ECHR claims against removal under schedule 3 provisions.

I am confident that the measures in place are appropriate and sufficiently robust. We know it may not always be appropriate to apply inadmissibility to all claimants. Any oral or written representations from a claimant about why inadmissibility processes should not be applied in their case, including any connections they may have to the UK, will be considered ahead of any removal to a safe third country. However, if an individual has family in the UK, there are family reunion routes available. These amendments should not be used to circumnavigate those provisions. For those reasons, I do not support the suggested addition of proposed new section 80D in the Nationality, Immigration and Asylum Act 2002, under amendment 26, and I invite hon. Members not to press it to a Division.

Turning to the clause overall, an increasing number of people are risking their lives to get to the UK, using unseaworthy vessels, putting at risk not only their lives but those of the UK Border Force and rescue services. Those routes are often facilitated by criminal gangs, seeking to arrange those dangerous journeys for profit. We are determined to make the use of small boats to cross the channel an unviable option for reaching the UK. We are determined to send a clear signal that it is unacceptable for individuals to travel through multiple safe countries to then claim asylum in the UK.

To stop people risking their lives on those dangerous crossings, reduce the unsustainable pressure on the asylum system and protect those most in need, we must be clear that many of those coming to the UK by irregular means will not be admitted into our asylum system. Inadmissibility is a long-standing process, designed to prevent secondary movements across Europe, and these measures are being introduced to support that. People should claim asylum in the first safe country they reach, rather than make dangerous journeys to the UK to claim asylum here.

--- Later in debate ---

[Tom Pursglove]

Again, I refer back to the point that has been raised, which is that we will not return individuals to countries where they would be unsafe as a consequence. Of course we would look at cases on an individual basis and at the concerns that have been raised. If there are concerns, it is important that they are properly taken into account. I am confident that the approach we are taking addresses that issue.

We know, however, that it may not always be appropriate to apply inadmissibility to all claimants. For example, we will not apply those procedures to unaccompanied asylum-seeking children. The introduction of the clauses on inadmissibility aims to strengthen our position on inadmissibility, further disincentivise people from making those dangerous journeys, and encourage them to claim asylum in the first safe country they reach. Those who fear persecution should claim asylum in the first safe country they reach. Parliament has already had an opportunity to scrutinise the measures when they were placed in the immigration rules in December 2020.

[Stuart C. McDonald]

I just do not think that the significant legal questions that have been asked have been answered appropriately, and there are all sorts of questions about the safeguards around the description of a safe third state, so I want to press amendment 56 to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[The Chair]

In his opening remarks the hon. Gentleman referred in some depth to clause 16 in addition to speaking to the amendment. I have no problem with that whatever, but I remind the Committee that you cannot have two bites of the cherry. In the light of the line that has been taken, I suggest that we treat this as a stand part debate as well. If anyone has anything to say, now is the chance.

[Stuart C. McDonald]

May I confirm, Sir Roger, that there are two groups of amendments to this clause?

[The Chair]

Absolutely.

[Stuart C. McDonald]

Thank you, Sir Roger. In relation to the first group, we fully support the shadow Minister and amendments 36 and 37, which would limit the range of applicants who might face those notices, including children survivors of trafficking and those who need protection because of gender-based violence or sexual orientation. Amendment 153 simply excludes a number of additional groups of people, including those suffering from mental ill health. The shadow Minister explained exactly why it can be very difficult to demand disclosure by certain deadlines from certain applicants. The same arguments apply in relation to our amendments. If we go down this route, there must be a recognition that disclosure of evidence for some can be an incredibly difficult process. How will that be taken into account?

[Paul Blomfield]

Taking account of your suggestion, Sir Roger, I wanted to make a few comments, although my hon. Friend the Member for Enfield, Southgate made a substantial contribution. We need to pay close attention to this clause and those that follow it, because they cut across a basic principle of English and Scottish law: the presumption of innocence until proven guilty. Underlying the clauses is an assumption of disbelief—everybody is playing the system. Of course, there are people who do, but we do not design our justice system on that assumption, nor should we design the asylum system on that basis.

Instead, we should look at the practical application, because as I said when I spoke to clause 10, we need to understand the journeys taken by those seeking refuge in our country as they flee persecution and conflict, and understand the trauma that led them to uproot themselves from their homes and the trauma that they experience on their journeys. That should give the Government serious pause for thought.

Clauses 16, 17 and 23 prejudice the system against survivors of violence, including sexual and gender-based violence, and reduce access to refugee protection. Clause 16 permits the Home Secretary to serve an evidence notice on a person who has made a protection of human rights claim, forcing them to provide evidence before a specified date. That needs to be looked at in terms of the consequences set out in clause 23 diminishing the weight of their evidence. We are returning to a theme here, because this is in conflict with the Home Office’s own asylum policy, which recognises that there are many good reasons why women who have survived sexual and other gender-based violence would be late in applying for asylum or in submitting evidence.

Let me quote the Home Office’s policy:

“There may be a number of reasons why a claimant, or dependant, may be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family ‘honour’, or fear of family members or traffickers, or having been conditioned or threatened by them…Those who have been sexually assaulted and or who have been victims of trafficking may suffer trauma that can impact on memory and the ability to recall information. The symptoms of this include persistent fear, a loss of self-confidence and self-esteem, difficulty in concentration, an attitude of self-blame, shame, a pervasive loss of control and memory loss or distortion.”

That policy—the policy of the Home Office—states that

“disclosure of gender-based violence at a later stage in the asylum process should not automatically count against their credibility.”

Yet that is precisely what the Government are trying to do in these clauses, in conflict with their own policy.

The Women for Refugee Women charity, which does extraordinary work supporting those fleeing gender-based violence, says:

“because there are so many legitimate reasons for why a woman who has survived gender-based violence may submit evidence late, we do not think there is a way in which these evidence notices can be implemented fairly in respect to these highly vulnerable individuals.”

Let me return to the Home Office’s own assessment of the proposals, which found that the Bill’s

“policies could indirectly disadvantage protected groups”,

such as

“children, disabled people and people who are vulnerable for reasons linked to other protected characteristics—including but not limited to gender reassignment, pregnancy and maternity, sexual orientation and sex.”

That disadvantage, which the Home Office has identified, to vulnerable people and victims of huge trauma and violence will be hardwired into our law by these clauses, so I urge the Government to withdraw them.

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[Tom Pursglove]

I will develop my remarks a little further. I will come back to some of the points raised in the debate, but to start with I want to get through the rationale behind our thinking on the various amendments before the Committee.

Amendment 37 also fails to fully understand the remit of clause 16. The evidence notice applies solely to evidence in support of protection and human rights claims. The new slavery and trafficking information notice, covered in clause 46, will require a person to provide any information relevant to their status as a victim of modern slavery or trafficking.

On amendment 153, the Government take their responsibility towards those seeking international protection seriously. We recognise that particularly vulnerable claimants and survivors of modern slavery need to be treated with care, dignity and sensitivity. Individuals may be particularly vulnerable as a result of their age, their health, the experiences they have lived through or a range of other factors. It is because these factors can be so wide ranging that I am resisting this amendment.

Clause 16 and the new evidence notice will require those who make a protection or human rights claim to provide evidence in support of their claim before the date specified in the evidence notice. This clause works in parallel with clauses 17 and 23. Where evidence is provided late, claimants will be required to provide reasons for that. Where there are no good reasons for the late provision of evidence, this should result in damage to the claimant’s credibility, and decision makers must have regard to the principle that little weight should be given to that evidence.

By introducing a statutory requirement to provide evidence before a specified date, clause 16 will contribute to the swift resolution of protection and human rights claims, enabling decision makers to consider all the evidence up front and, where appropriate, grant leave. However, we recognise that it may be harder for some people to engage in the process. That may be as a result of trauma they have experienced, 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, allows for good reasons why evidence might be provided late. As I say, what constitutes good reasons has not been defined in the Bill. 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.

[Stuart C. McDonald]

Nobody is arguing for an exhaustive list, but if we are all agreed that these are examples of good reasons, why not include them as a non-exhaustive list, just to make sure that these people are protected?

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[The Chair]

I have had no notification that amendment 153 is going to be pressed to a vote, but, in the spirit of the Committee’s operation, if the hon. Gentleman wishes to move it perhaps he would like to say so now.

[Stuart C. McDonald]

I thank you for your indulgence, Sir Roger.

Amendment proposed: 153, in clause 16, page 20, line 8, at end insert—

“(1A) The Secretary of State must not serve an evidence notice on a person—

(a) who has made a protection claim or a human rights claim on the basis of sexual orientation, gender identity, gender expression or sex characteristics;

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

(c) who has made a protection or human rights claim on the basis of gender-based violence;

(d) who has experienced sexual violence;

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

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

(g) who has been a victim of torture;

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

(i) who is suffering from other serious physical health conditions or illnesses.”—(Stuart C. McDonald.)

This amendment would prevent the Secretary of State from serving an evidence notice on certain categories of people.

Question put, That the amendment be made.

Division 15

Ayes: 7

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Labour: 5
Scottish National Party: 2

Noes: 9

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Conservative: 9

[Stuart C. McDonald]

I rise to speak to amendment 27, in clause 16, page 20, line 9, leave out “requiring” and insert “requesting”.

Under this amendment, evidence notices would “request” (rather than “requiring”) the provision of supporting information for a protection or human rights claim.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 28, in clause 16, page 20, line 14, leave out “must” and insert “may”.

This amendment would remove the obligation for applicants to provide supporting information for a protection or human rights claim.

Amendment 40, in clause 18, page 22, line 4, leave out “requiring” and insert “requesting”.

Under this amendment, priority removal notices would “request” rather than “require” the recipient to provide information.

[Stuart C. McDonald]

We have had an extensive debate on these clauses, so I can be brief. Amendment 27 would cast the evidence notices that we have just debated in the form of a request, rather than a requirement. Amendment 28 would mean that an explanation for late evidence could be provided, rather than it being mandatory, so that we were explaining these rights and responsibilities instead of imposing inappropriate penalties. Amendment 40 would provide for similar changes to the priority removal notices instituted by clause 18.

The previous debate was essentially about whether those notices should extend to various groups of people, but in this group of amendments we are attempting to challenge the principles behind them.

Like other hon. Members, we agree that this is just a rehash of the one-stop process, which will achieve little and risk harm to claimants who need refugee protection. It is a distraction from the real issues that the Home Office needs to get a grip of. People who are at risk of persecution are generally desperate to provide evidence if they can, and if they are aware of and understand the processes that they are involved in. There is no advantage to them in providing evidence late, but there are often very good reasons why that happens. On the other hand, if evidence is provided late, it is still ultimately going to have to be looked at; if it proves someone is a refugee, it will have to be recognised, so it is time for the Home Office to get on with fixing the real problem in the asylum system, which is the appalling delays and backlogs in that system. That is why we have tabled these amendments. However, rather than putting them to a vote, I beg your leave to withdraw them, Sir Roger. I will vote against the clause standing part instead.

[The Chair]

That is unusual. The amendment cannot be withdrawn, because it has not been moved.

Question put, That clause 16 stand part of the Bill.

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Asylum or human rights claim: damage to claimant’s credibility

[Stuart C. McDonald]

I beg to move amendment 39, in clause 17, page 20, line 22, at end insert—

‘(1A) For subsection (1) substitute—

In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or human rights claim, a deciding authority shall take into account any behaviour to which this section applies.”

This amendment would mean that – whilst attempts to conceal information, mislead, or delay the processing of a claim would still be taken into account – it will be for the deciding authority to assess what impact this has on the claimant’s credibility.

Section 8 of the Asylum and Immigration 2004 is hugely controversial, both on a point of principle and in its practical effect. It tells decision makers, whether at the Home Office or an independent judge, that if an applicant behaves in a certain way that must be taken as damaging their credibility. Clause 17 adds to the list of behaviours.

Amendment 39 would take us back to the point of principle by saying it is not for Parliament to tell decision makers, judges of fact, what to think about evidence that they have seen and we have not. Are the Government saying that they do not trust them to do their job properly? If we take a step back, the clause would represent the Home Office using legislation to tell decision makers what to think about evidence, in a dispute that it is party to itself. In that light, it is an outrageous principle.

The amendment would mean that those decision makers are asked to take into account the behaviour, rather than being told what to think about it. It is up to them to decide what they should read into late provision of evidence. What if the late provision of evidence is not the claimant’s fault? What if the lawyer made the mistake? What if a medical expert took too long to finalise a report? Ultimately, decision makers have to decide whether the person is at real risk of persecution. If late evidence provides compelling proof of that, they need to be recognised as refugees. Again, get on with fixing decision-making times and quality. From the point of view of principle, we should leave decision makers to weigh up the evidence themselves, without direction from legislators. It is as simple as that.

[The Chair]

I remind the Committee that this will also be considered a clause stand part debate.

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[Tom Pursglove]

Thank you, Sir Roger. I want to pick up on a couple of other points that were raised in responding to amendment 39. I should clarify that clauses 17 and 23 do not apply to consideration of modern slavery referrals. Claims are considered holistically, and credibility is not by itself determinative of a claim. It is important to emphasise that point. The hon. Member for Enfield, Southgate raised the case of Gloria. Obviously, I am mindful of talking about individual cases because of the difficulties associated with that, as I am sure that he will appreciate, but clauses 17 and 23 do not prevent someone from providing late evidence. Late evidence will still be considered in full. Where there are good reason for lateness, a person’s credibility will not be damaged and clause 23 will not apply. I wanted to provide clarity on that point. With that, I ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw amendment 39, and that the Committee agree that clause 17 stand part of the Bill.

[Stuart C. McDonald]

As a point of principle, I object to Parliament telling decision makers what to think, but having made my point I am happy to leave it there for now, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That clause 17 stand part of the Bill.