Nationality and Borders Bill (Sixteenth sitting)

Debate between Stuart C McDonald and Bambos Charalambous

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Stuart C. McDonald]

First, that was not a fair interpretation of the new clause: it was certainly not advocating for an unlimited number of people to have access to that route. Nevertheless, it is surprising that we are expected to be encouraged about family reunion at a time when this very Bill is proposing to strip the overwhelming majority of asylum seekers and refugees of those family reunion rights. At the end of the day, the issue is one we will have to revisit on Report. In the meantime, I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.

New Clause 48

Six month time limit for determining asylum applications

“(1) The Secretary of State must make regulations providing for—

(a) a six month time limit for determining applications for asylum; and

(b) an officer of Director level or above to be required to write to the Home Secretary a letter of explanation on a quarterly basis in the event of any failure to meet the six month time limit.

(2) The Secretary of State must report to Parliament any failure to meet the six month time limit.”—(Bambos Charalambous.)

Brought up, and read the First time.

[Bambos Charalambous]

I beg to move, That the clause be read a Second time.

This new clause could be a silver bullet to solve a lot of the ills in the immigration and asylum system. We believe that, were it to be adopted, it would have many beneficial social and financial effects. It would obviate the need for some of the other clauses we have proposed, such as lifting the ban on working. The new clause would undo a host of negative consequences that arise because of the current endemic delays in the asylum system, which are creating huge social and financial costs.

During the course of this Committee, we have heard testimony from people trapped inside the system for years. We have heard about the toll on mental health and the re-traumatising of people who have fled abuse and torture. We have heard about the way in which being trapped in limbo prevents integration and how being banned from working enforces poverty. None of these negative effects would exist if our six-month time limit for processing cases were adopted. Furthermore, costs to the taxpayer, such as those currently spent on long-term accommodation and subsistence benefits, would all be hugely reduced.

Let us not be under any illusion: the current asylum system is broken. According to the House of Commons Library, as of June 2021 the total “work in progress” asylum case load consisted of 125,000 cases—57,000 of those were awaiting an initial decision at the end of 2020.

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[Bambos Charalambous]

I will not press new clause 52 to a vote, but I do hope that the Government will keep monitoring the system and provide the protection for young Hongkongers that I outlined. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 53

Electronic monitoring: conditions and use of data

“(1) Schedule 10 to the Immigration Act 2016 is amended as follows.

(2) In paragraph 2, in sub-paragraph (3)(a), leave out ‘must’ and insert ‘may’.

(3) In paragraph 2, in sub-paragraph (3)(b), leave out ‘by virtue of sub-paragraph (5) or (7)’.

(4) In paragraph 2, after sub-paragraph (3) insert—

‘(3A) If immigration bail is granted to a person subject to an electronic monitoring condition, the electronic monitoring condition shall cease to apply on the day six months after the day on which immigration bail was granted to the person, unless sub-paragraph (3B) applies.

(3B) This sub-paragraph applies if the Secretary of State or the First-tier Tribunal (as the case may be), when granting immigration bail to the person, has directed that the electronic monitoring condition shall not cease to apply in accordance with sub-paragraph (3A).

(3C) But the Secretary of State or the First-tier Tribunal (as the case may be) shall not make a direction under sub-paragraph (3B) unless the Secretary of State or the First-tier Tribunal (as the case may be) is satisfied that there are very exceptional circumstances which make the continued application of the electronic monitoring condition necessary in the interests of—

(a) public protection; or

(b) national security.’

(5) In paragraph 2, after sub-paragraph (7) insert—

‘(7A) Sub-paragraph (3)(a) does not apply to a person who is granted immigration bail by the First-tier Tribunal if the Tribunal considers that to impose an electronic monitoring condition on the person would be—

(a) impractical, or

(b) contrary to the person’s Convention rights.

(7B) Where sub-paragraph (7) or (7A) applies, the First-tier Tribunal must not grant immigration bail to the person subject to an electronic monitoring condition.’

(6) In paragraph 4, after sub-paragraph (2) insert—

‘(2A) The Secretary of State must not process any data collected by a device within the meaning of sub-paragraph (2) which relates to the matters in sub-paragraph (1)(a) to (c) except for the purpose of, and to the minimum extent reasonably necessary for, determining whether P has breached a condition of his bail.

(2B) In sub-paragraph (2A), “processing” has the same meaning as in section 3(4) of the Data Protection Act 2018.’”.—(Stuart C. McDonald.)

This new clause would place certain safeguards and restrictions on use of electronic monitoring.

Brought up, and read the First time.

[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

New clause 53 is really just to probe the Government on a new issue that has started to arise this year: the significant increase in the use of the GPS monitoring of certain people on bail for immigration purposes, largely foreign national offenders awaiting deportation. I am not for a moment suggesting that such monitoring does not have its role. It absolutely does; indeed, there would be occasions on which I would be upset with the Home Office if it did not use it. There is a genuine concern, however, about the lack of safeguards and limits on its use, and on how data from GPS tracking is being used. Indeed, even compared to the criminal justice system, it seems that the safeguards and limits are somewhat light touch. Cases have arisen where it seems that use was totally inappropriate.

New clause 53 suggests putting in place some appropriate safeguards and restrictions. It is designed to prompt the Minister, if not today then in due course, to answer certain questions. First and foremost, how will data be used in practice and in what circumstances will it be used in relation to somebody’s article 8 claim? That is an area of controversy, in that the use of tracking goes way beyond the original intention in previous relevant legislation, which was to prevent people from absconding.

Secondly, the criminal justice system imposes strict limits and safeguards on how long electronic monitoring is used for and in what circumstances, with limits on collection, processing, storage and use of data. Why, therefore, are those electronic monitoring safeguards absent in the immigration system?

Thirdly, why have the Government not made the data protection and equality impact assessment for such an intrusive scheme available to the public? Fourthly, what guarantee can the Government give that they will not expand their use of this technology and use it on people who have come to the United Kingdom to seek asylum? Can the Minister give us assurances on that today?

Finally, the Government’s own data suggests that absconding rates are exceptionally low. A recent FOI response found that of people granted bail between February 2020 and March 2021, there were 43 cases of absconding out of 7,000, so what evidence does the Home Office have that this intrusive measure is really necessary on anything other than a very limited scale?

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[Stuart C. McDonald]

I am grateful to the Minister for his answers. He is certainly candid, as he has been throughout Committee proceedings. I am bitterly disappointed about the answer in relation to the remote areas pilot scheme. Those areas are really suffering, not just in terms of labour shortages and the accompanying economic challenges, but even with depopulation.

I will hang on and finish on an optimistic note in that there is a possibility that the Government will commission a review of the salary threshold for family visas. I very much hope that that does happen and they look at how that route operates all together. I cling to that little bit of silver lining. With that, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Schedule 1

Prisoners returning to the UK: Modifications of Criminal Justice Act 2003

‘This is the Schedule to be inserted after Schedule 19A to the Criminal Justice Act 2003—

“Schedule 19B

Prisoners returning to the UK: Modifications of Chapter 6 of Part 12

Modification of dates for referral to the Board

1 Paragraph 2 applies where section 244ZC(2), 244A(2) or 246A(4) (when read with section 260(4A)) would require the Secretary of State to refer a person’s case to the Board on a day falling before the end of the period of 28 days beginning with the day on which the person is returned to custody.

2 The applicable provision is to be read as requiring the Secretary of State to refer the person’s case to the Board at any time up to the end of the period of 28 days beginning with the day on which the person is returned to custody.

3 For the purposes of paragraphs 1 and 2, a person returns to custody when the person, having returned to the United Kingdom, is detained (whether or not in prison) in pursuance of their sentence.

Person removed after Board had directed release but before being released

4 Paragraphs 5 and 6 apply where, before a person’s removal from the United Kingdom—

(a) the Board had directed their release under section 244ZC, 244A or 246A, but

(b) they had not been released on licence.

5 The direction of the Board is to be treated as having no effect.

6 The person is to be treated as if—

(a) they had been recalled under section 254 on the day on which they returned to the United Kingdom, and

(b) they were not suitable for automatic release (see section 255A).

Person removed after referral to the Board but before disposal of the reference

7 Paragraph 8 applies where—

(a) before a person’s removal from prison their case had been referred to the Board under section 244ZB(3), 244ZC(2), 244A(2) or 246A(4), and

(b) the reference lapsed under section 260(4B) because the person was removed from the United Kingdom before the Board had disposed of the reference.

8 Section 244ZC(2), 244A(2) or 246A(4) (as applicable) is to be read as requiring the Secretary of State to refer the person’s case to the Board before the end of the period of 28 days beginning with the day on which the person is returned to custody.

9 For the purposes of paragraph 8, a person returns to custody when the person, having returned to the United Kingdom, is detained (whether or not in prison) in pursuance of their sentence.

Person removed after having been recalled to prison

10 Paragraphs 11 and 12 apply where, at the time of a person’s removal from prison under section 260, the person was in prison following recall under section 254.

11 Any direction of the Board made in relation to the person under section 255C or 256A before their return to the United Kingdom is to be treated as having no effect.

12 The person is to be treated as if—

(a) they had been recalled under section 254 on the day on which they returned to the United Kingdom, and

(b) they were not suitable for automatic release (see section 255A).”’—(Tom Pursglove.)

This new schedule inserts a new Schedule 19B into the Criminal Justice Act 2003 to make modifications of that Act in relation to prisoners who have returned to the UK after their removal from prison. It is introduced by section 261 of that Act, which is amended by NC12.

Brought up, read the First and Second time, and added to the Bill.

New Schedule 3

Working in United Kingdom waters: consequential and related amendments

‘Immigration Act 1971

1 The Immigration Act 1971 is amended as follows.

2 In section 8 (exceptions for seamen etc), after subsection (1) insert—

“(1A) Subsection (1) does not apply in relation to a member of the crew of a ship who is an offshore worker within the meaning of section 11A.”

3 In section 11 (references to entry etc), after subsection (1) insert—

“(1ZA) See also section 11A (additional means by which persons arriving in United Kingdom waters for work can enter the UK).”

4 In section 28 (proceedings for offences)—

(a) before subsection (1) insert—

“(A1) Proceedings for an offence under this Part that is committed in the territorial sea adjacent to the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.”;

(b) in subsection (2A), for “section 25 or 25A” substitute “this Part”.

5 In section 28L (interpretation of Part 3) —

(a) in subsection (1), at the beginning insert “Subject to subsection (1A)”;

(b) after subsection (1) insert—

“(1A) In this Part ‘premises’ also includes any artificial island, installation or structure (including one in the territorial sea adjacent to the United Kingdom).”

6 In section 28M (enforcement powers in relation to ships: England and Wales), in subsection (2)(a)—

(a) for “section” substitute—

“(i) section 24B,”;

(b) for “, and” substitute “, or

(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and”.

7 In section 28N (enforcement powers in relation to ships: Scotland), in subsection (2)(a)—

(a) for “section” substitute—

“(i) section 24B,”;

(b) for “, and” substitute “, or

(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and”.

8 In section 28O (enforcement powers in relation to ships: Northern Ireland), in subsection (2)(a)—

(a) for “section” substitute—

“(i) section 24B,”;

(b) for “, and” substitute “, or

(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and”.

9 (1) Schedule 2 (administrative provision as to control on entry etc) is amended as follows.

(2) In paragraph 2—

(a) in sub-paragraph (1), for the words from “who have” to “United Kingdom)” substitute “within sub-paragraph (1A)”;

(b) after sub-paragraph (1) insert—

“(1A) The persons are—

(a) any person who has arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom);

(b) any person who has arrived in United Kingdom waters by ship or aircraft who the immigration officer has reason to believe is an offshore worker.

(1B) In sub-paragraph (1A), ‘offshore worker’ and ‘United Kingdom waters’ have the same meaning as in section 11A.”

(3) In paragraph 27—

(a) after sub-paragraph (1) insert—

“(1A) Sub-paragraph (1) also applies to the captain of a ship or aircraft arriving in United Kingdom waters if—

(a) there are offshore workers on board, or

(b) an immigration officer has informed the captain that they wish to examine any person on board in the exercise of the power under paragraph 2.

(1B) In sub-paragraph (1A), ‘offshore worker’ and ‘United Kingdom waters’ have the same meaning as in section 11A.”

(4) In paragraph 27B—

(a) after sub-paragraph (1) insert—

“(1A) This paragraph also applies to ships or aircraft—

(a) which have offshore workers on board, and

(b) which—

(i) have arrived, or are expected to arrive, in United Kingdom waters, or

(ii) have left, or are expected to leave, United Kingdom waters.”;

(b) after sub-paragraph (9A) insert—

“(9B) ‘Offshore worker’ and ‘United Kingdom waters’ have the same meaning in this paragraph as in section 11A.”

(5) In paragraph 27BA—

(a) after sub-paragraph (1) insert—

“(1A) The Secretary of State may also make regulations requiring responsible persons in respect of ships or aircraft—

(a) which have offshore workers on board, and

(b) which—

(i) have arrived, or are expected to arrive, in United Kingdom waters, or

(ii) have left, or are expected to leave, United Kingdom waters,

to supply information to the Secretary of State or an immigration officer.”;

(b) in sub-paragraph (2), after (1) insert “or (1A)”;

(c) after sub-paragraph (5) insert—

“(5A) For the purposes of this paragraph, ‘offshore workers’ and ‘United Kingdom waters’ have the same meaning as in section 11A.”

10 (1) Schedule 4A (maritime enforcement powers) is amended as follows.

(2) In paragraph 1(2), after the opening words insert—

“‘the 2006 Act’ means the Immigration, Asylum and Nationality Act 2006;”.

(3) In paragraph (2)(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(4) In paragraph (3)(1)(a), for “25, 25A and 25B” substitute “24B, 25, 25A or 25B of this Act or section 21 of the 2006 Act”.

(5) In paragraph 4(1), for “25, 25A or 25B” substitute “24B, 25, 25A or 25B of this Act or section 21 of the 2006 Act”.

(6) In paragraph 12(2), after the opening words insert—

“‘the 2006 Act’ means the Immigration, Asylum and Nationality Act 2006;”.

(7) In paragraph 13(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(8) In paragraph 14(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(9) In paragraph 15(1), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(10) In paragraph 23(2), after the opening words insert—

“‘the 2006 Act’ means the Immigration, Asylum and Nationality Act 2006;”.

(11) In paragraph 24(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(12) In paragraph 25(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(13) In paragraph 26(1), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

Immigration, Asylum and Nationality Act 2006

11 In section 21 of the Immigration, Asylum and Nationality Act 2006 (offence of employing a person who is disqualified from employment by their immigration status), after subsection (3) insert—

“(3A) Proceedings for an offence under this section that is committed in the territorial sea adjacent to the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

(3B) Section 3 of the Territorial Waters Jurisdiction Act 1878 (consent of Secretary of State for certain prosecutions) does not apply to proceedings for an offence under this section.”’—(Tom Pursglove.)

This new schedule makes consequential and related amendments in NC20.

Brought up, read the First and Second time, and added to the Bill.

Question proposed, That the Chair do report the Bill, as amended, to the House.

[Bambos Charalambous]

I want to put on the record my thanks to the Clerks, in particular Sarah Thatcher and Rob Page, for their amazing work in getting our new clauses and amendments into some form of legible parliamentary-type wording. I also thank the other staff, those in the room in particular, the Doorkeepers and those keeping a record of our sometimes very long speeches. I also thank you, Ms McDonagh, and Sir Roger, for the excellent way in which you chaired proceedings of the Committee.

I thank the members of the Committee—the Minister and all members, but in particular my friends and colleagues in the Opposition for their support and for helping us get to where we are today. I put on the record my thanks to my fellow shadow Minister, my hon. Friend the Member for Halifax, and my hon. Friends the Members for Bermondsey and Old Southwark, for Sheffield Central and for Coventry North West, and to the hon. Members for Glasgow North East and for—I will attempt to say the name—Cumbernauld, Kilsyth and Kirkintilloch East.

Finally, I thank my staff, Katherine Chibah, Giulia Monasterio, Cian Fox, Charlotte Butterick and Tashi Tahir, for all their hard work on the research and the speeches, and for their general support. It has been a challenging Bill Committee and I am pleased that we have got to the end of it in one piece.

Nationality and Borders Bill (Fifteenth sitting)

Debate between Stuart C McDonald and Bambos Charalambous

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Stuart C. McDonald]

Briefly, there are two reasons why I do not think this new clause makes any sense at all. First, there is the point that I just alluded to. The danger is that if someone who has a PRN served on them is contemplating disclosing further information or making a claim and the deadline passes, and they are acting in the way that the Minister wants to get at here and trying to “play the system”, they will simply not make that disclosure. Their existing claims will proceed to appeal through the normal channels, to a first tier tribunal with onward appeal rights. So the proposals do not make sense, even by the Government’s own logic. Can the Minister address that?

Secondly, we object to the new clause from a point of principle. The rare occasions when I would accept that an expedited appeals process can be justified are where the justifications relate solely to manifestly unfounded or repeat claims, but that is not what this is about; this is about expediting appeals and rights to appeal, but not because of the substance of the appeal—it has absolutely nothing to do with the merits of the claim or the related appeal at all. So the proposals make no sense from the point of view of principle, as well as being rather illogical.

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

Again, briefly, I agree with everything the Scottish National party spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, has just said. We do not know at what stage the other appeal will be; it may not be ready to be heard. One problem we have in this country is the delay in the appeals processes because of severe underfunding in our court and tribunal systems, so it seems that the new clause will not work.

The new clause will also cause more problems than it solves. I am not sure that there is a huge problem with multiple outstanding appeals in any event, but the new clause could actually make things worse. If the intention in the Bill is to provide fairness, the new clause will not achieve that, because speeding up an appeal could cause unfairness. So for the reasons outlined by the SNP spokesperson we will not support the new clause.

--- Later in debate ---

[Stuart C. McDonald]

I thank the Chagossians who spoke to the shadow Minister and myself, and Fragomen solicitors for facilitating that discussion and drafting the new clauses. As Members, and particularly Conservative Members, will know, the hon. Member for Crawley (Henry Smith), in whose constituency we find the UK’s largest Chagossian diaspora, has championed Chagossians for many years. On Second Reading I asked the Government to consider introducing a clause to rectify some of the injustices that Chagossians have faced for more than half a century. I understand that they will bring in an amendment on Report to do that, but today we seek to probe their initial thinking.

We could speak all day about how outrageously the Chagossians were treated by the UK and the US. They were removed from their islands simply to make way for an airbase, dumped in Mauritius and elsewhere and basically forgotten about. There are myriad injustices that are still to be put right. The new clauses do not fix everything, but they would fix significant injustices in relation to nationality—exactly what part 1 of this Bill was supposed to do—and family. Some Chagossians would benefit from provisions in part 1 of this Bill, which is welcome, but the Bill needs to go much further if they are to have access to the citizenship that is rightly theirs and that has been denied them only by the outrageous events of the late 1960s and the early 1970s.

As we touched on during debates on part 1, citizenship by descent in British and British overseas territories’ nationality law usually stretches to only one generation. If someone moves abroad, the children they have there will be British by descent, but if those children remain abroad and later have kids they would not be able to pass on that British citizenship. That reflects the idea that the family have made a voluntary decision to loosen their links to the UK and to build a new life elsewhere. Therefore, citizenship of the country where they now live is probably more appropriate.

Exceptions are made—for example, if the only reason the person was abroad was Crown service or if the parent who could not pass on citizenship has actually lived in the UK for three years previously or goes on to do so. All of that illustrates the point that reflecting the idea of a voluntary link to the UK justifies continued transmission of UK citizenship.

None of that can apply to the Chagossians; the situation there is obviously manifestly different. The only reason why Chagossians cannot pass on their British overseas territory citizenship is that they were forcibly removed from their islands. Nobody chose to make a new life in Mauritius or anywhere else—far from it. Nobody can say that they have voluntarily chosen to take on a new identity elsewhere. Any undermining or breaking of the link was completely forced on them in quite the most outrageous circumstances; that in itself should be enough to justify new clause 15.

The knock-on effect is that when the law was changed in 2002, while some Chagossians became British citizens as well as British overseas territory citizens, others missed out. They are now in the horrible situation where some have the right to rekindle their British identity and return here, but others do not. If I was a Chagossian whose parent was born just before being forcibly removed from the islands, and was therefore BOTC by birth, I am likely to be in a far better position than, for example, my cousin whose parents were born just days after being forced from the islands, and therefore cannot transmit their BOTC or British citizenship. When introducing the Bill, the Home Secretary said that it would mean children unfairly denied British overseas territory citizenship will finally be able to acquire citizenship, as well as British citizenship. What happened to the Chagossians, and what they still face today, is an absolute scandal. The least that we can do is ensure that all of them can access the nationality that the UK and US action deprived them of.

New clause 4 would fix another unfairness. I absolutely detest the restrictive rules that the Home Office has put in place on family visas, which say that someone must be earning certain sums of money before they can bring their non-national spouse or children here. Putting that to one side for the moment, even accepting the Government’s own logic, these provisions should not apply to the spouses and family members of Chagossians. Essentially, the Government logic is that if people choose to build a family life elsewhere and then come back to the UK, they should have certain financial means to support themselves and knowledge of the UK. However, again, Chagossians did not choose to make their family life outside British overseas territories—that was forced on them. It would now be totally unfair to restrict the right to come to the UK by imposing those rules on the families as if this was a choice they made.

It was a step in the right direction to provide British citizenship to some in 2002, but it is cruel to deny effective access to these routes by denying family members the right to come here. It is particularly cruel, given that the reason many will not be able to meet the financial threshold is the horrendous way they have been treated for decades and the extraordinary deprivation they have had to endure. I hope the Home Office will look to fix two of the many injustices that have been visited on the Chagossians.

[Bambos Charalambous]

I will speak to new clause 15, which is grouped with new clause 4. I fully endorse what the spokesperson for the SNP said.

New clause 15 seeks to rectify a long-standing issue in British nationality law that affects a relatively small number of people—the Chagossian people, descendants of the Chagos islanders, who were forcibly removed from the British Indian Ocean Territory in the 1960s. Between 1968 and 1974, the UK forcibly removed thousands of Chagossians from their homelands on the Chagos islands. The removal was done to make way for a US military base on Diego Garcia. The Chagossians were a settled population on the islands. Their origins trace back to 1793. They were removed and deported to Mauritius and the Seychelles, more than 1,600 km away from the Chagos islands, and have faced extreme poverty and discrimination in those places.

Because of the removal, many descendants of the Chagos islanders, despite being the grandchildren of people who were British subjects in the British Indian Ocean Territory, have been denied rights to British citizenship. The British Overseas Territories Act 2002 granted British citizenship to resettled Chagossians born between 1969 and 1982—the children of those born on the British Indian Ocean Territory. However, many Chagossians have still been denied citizenship, including second-generation Chagossians born outside those dates.

The grandchildren of those born on the British Indian Ocean Territory, third-generation Chagossians, do not have rights to British citizenship, as citizenship has not automatically passed to them, even if in some cases they migrated to the UK with their British parents at a very young age. That group therefore often become an undocumented presence in the UK once they reach the age of 18, and are denied access to jobs, housing and healthcare, despite having lived in the UK since a very young age.

The Chagossian community is divided between Mauritius, the Seychelles and the UK. Broken and divided families are therefore a direct consequence of this injustice in British nationality law. For 60 years, the Chagossian people have faced dispersal, poverty and separation. That has severely limited their life chances and damaged the health and wellbeing of generations of people.

The Bill in its current state does not cover the British citizenship and immigration issues that the Chagossian community faces. That is why the Opposition are introducing this new clause and why we wish to raise the issue today. It is worth exploring this unfairness in more detail, and the reasons why legislation has failed to rectify it to date.

Under British nationality law, citizenship is normally passed only to one generation born abroad. However, the situation of the Chagossians is fundamentally different from that of other inhabited British overseas territories, and applying that restriction to the Chagossians is unacceptable. As we know, their parents and grandparents were forcibly removed from their homeland and deported to Mauritius and the Seychelles. Since then, the Chagossian people have been born outside the Chagos archipelago and receive citizenship from Mauritius or the Seychelles, with no recognition of their long-standing ties to British nationality.

It is not possible for the descendants of the Chagos islanders to be born on the islands of the British Indian Ocean Territory due to the Order in Council since 2004, which bans any Chagossian from living on their native land. That is deeply unfair. They have not severed links with their British citizenship voluntarily; they have been excluded by the UK Government. At this point I would like to share the personal experiences of those affected by that injustice. Like many in Committee, I have been contacted by members of the community, and I pay tribute to their campaigning efforts in incredibly distressing and difficult circumstances, including groups such as Chagossian Voices. Pascal Francois is one of those affected. He resides in Mauritius and is Chagossian. He says:

“For years we have suffered from the separation of our families, through no fault of our own. We are as British as you and the next person. We wish to be known as British, we belong to the UK & her territories. The Chagossian people in exile no longer want to live in the shadows of others. We want to belong and be British by descent.”

The battle for Chagossians’ rights has been raging for decades, and this group of people have been badly let down by the UK. Most Chagossian families, already financially impacted by their enforced exile, are paying—and have paid for many years—huge and increasing visa, immigration and citizenship fees, health surcharges and legal expenses for spouses and children with pending or rejected applications. This process has significantly damaged their health, wellbeing and livelihoods. It has caused immense stress. There is understandable frustration at the lack of support from the Home Office.

Nationality and Borders Bill (Twelfth sitting)

Debate between Stuart C McDonald and Bambos Charalambous

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Bambos Charalambous]

Clause 43 refers to no-notice removals and presents another problem of access to justice in the Bill. The clause aims to provide a statutory minimum period to enable individuals to access justice prior to removal and makes provisions for removing individuals following a failed departure without the need for a further notice period. It also includes the provision of written notices of intention to remove and departure details. It makes clear in statute the duty of the Home Office to give people a maximum of five working days’ notice when they are going to be removed from the UK.

For more than 10 years, the courts have recognised that that duty to give notice of removal is essential to accessing justice and the rule of law. As the Committee will acknowledge from our discussions on the Bill so far, it is vital that, when officials decide people should be removed, those people can access the courts to challenge that decision if they have a legitimate case.

However, while this clause sets out to provide access to justice, its effectiveness in doing so is very unclear. If the purpose of the notice period is, as stated, to enable those facing removal to access legal advice and the courts, it is essential that people served with a notice are able in practice to access that advice.

For example, the clause does not explain how the Government will ensure that access to legal advice will be provided. Asylum seekers can be highly vulnerable and may experience difficulties in effectively accessing legal advice and in understanding the legal intricacies of the asylum process, such as studying legal determinations or preparing submissions. As we know from our earlier scrutiny, clause 22 in part 2 provides for up to but no more than seven hours of legal aid for those served with a priority removal notice to receive advice on their immigration status and removal. We do not believe that provision goes far enough, but this clause is worse still. Unlike the provisions for priority removal notices, there is no specific provision in part 3 for ensuring that those who are served with notice of intention to remove can access legal advice within the notice period. The scheme therefore depends on existing legal aid provision, which has of course been decimated by the Conservatives for more than a decade. There are serious limitations in the availability of this provision for those both in detention and in the community.

Subsection (8) inserts new section 10A in the Immigration and Asylum Act 1999. It sets out potential scenarios where a further notice period is not required, which includes, for example, where the person was not removed on the date specified in the first notice due to matters reasonably beyond the control of the Secretary of State, such as adverse weather conditions, technical faults or transport delays, or disruption by the person to be removed.

Disruption is very broad of course, and can be interpreted on a very broad basis. It could be applied to a person refusing to leave their room in detention because they want to speak to their lawyer. The fine print also states that a new notice of intention to remove and a further notice period are also not required where the person was not removed on the date specified in the first notice as a result of “ongoing judicial review proceedings”.

That point is even more problematic. It applies where a planned removal does not proceed because of judicial review proceedings. If those proceedings are resolved in a way that means removal can proceed, the Home Office does not have to give any notice of removal if it is carried out within 21 days of the court’s decision.

As the Public Law Project and JUSTICE have pointed out, that decision could come weeks, months, or even years after the first notice of removal. Over time, the person’s circumstances could have changed fundamentally, important new evidence could have come to light or the situation in their own country might have changed dramatically. Such changes can happen virtually overnight, as recently witnessed in Afghanistan. Yet once the previous judicial review proceedings, which were potentially based on completely different facts and circumstances, are decided, a person can be removed without any notice or opportunity to raise these new circumstances with the Home Office or to access the court. If implemented, that could give rise to significant injustices.

I have one example to highlight this point—I thank the Public Law Project and JUSTICE for sharing this example. MLF is a Sri Lankan national whose asylum claim had been dismissed. During judicial review proceedings, in which he was unrepresented, he submitted further representations to the Home Office based on new evidence of the killing of three male relatives. That new evidence could not be considered in the judicial review proceedings because it post-dated the decision being challenged. The Home Office’s barrister informed him that the material would be forwarded to the relevant part of the Home Office for consideration.

MLF was subsequently served with a decision that refused to consider his fresh representations. He was subsequently removed to Sri Lanka on the same day without any notice or opportunity to access the court. In hiding in Sri Lanka, MLF applied for judicial review of his removal without notice. The Home Office conceded that he had been unlawfully removed and arranged for MLF to return to the UK. He has since been granted refugee status on the basis of evidence that post-dated his original appeal, including that which he had submitted during his judicial review proceedings.

If clause 43 was implemented in that case, it would have authorised the removal of MLF without notice. To avoid situations where people are wrongly removed and evidence is not considered properly, amendment 137 seeks to delete subsections (3) to (5) of new section 10A of the 1999 Act. That change would ensure that people are required to be given notice of removal directions and an opportunity to ask the court to issue an injunction preventing their removal while additional elements of their case are considered or in order to present fresh evidence to challenge an initial decision.

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

The shadow Minister has raised lots of sensible questions. I have one other brief question for the Minister, on new clause 28. He may not be able to answer it today, but I would like it clarified, if possible.

Proposed new section 10E to the 1999 Act that the new clause would add is supposed to apply when a person has applied for judicial review and the court has made a decision authorising the removal. To be clear, does that decision relate to the judicial review, or could it relate to any prior decision? That point will not affect lots of people, but it will be important. I appreciate that the Minister may not be able to answer immediately, but I hope we will get clarity on that in due course.

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[Tom Pursglove]

I do not accept that depiction. We are requiring decision makers to take into account co-operation with removal proceedings and immigration processes when considering applications for immigration bail. We are mindful that non-compliance may already be considered, and that the tribunal takes such behaviour into account when deciding whether to grant bail. However, the intention behind the provision is that there be the same focus on evidence of non-compliant behaviour as there is on those factors already particularised and considered in every case. As we have always made clear, we do not detain indefinitely, and the clause will not mean that people will be detained solely due to non-compliance, as there must always be a realistic prospect of removal within a reasonable timescale.

[Bambos Charalambous]

We will oppose the clause. It makes it more difficult for individuals to get bail and leaves them stranded in immigration detention indefinitely.

The clause would require decision makers to consider previous failure “to cooperate with” certain immigration processes when considering whether to grant immigration bail. That is extremely vague and broad language. There is a risk of it being misconstrued and used to penalise those who use their legal rights to resist or appeal against immigration decisions made against them.

The Public Law Project has stated that if detainees are given the impression that any resistance to a decision of the Home Office may be held against them, it would increase unfairness and have a significant chilling effect on those bringing legitimate legal challenge. There is already an uneven playing field; the clause risks tipping things still further in the Home Office’s favour. The Home Office is expanding its powers of detention, while preventing independent judicial oversight of its decisions to detain.

Immigration detention is a harsh measure. It has no time limit and little judicial oversight, and should be used only when necessary and for the shortest time possible. The Government hold vulnerable people in prison-like immigration detention centres for periods ranging from days to several years. That includes people who have lived in the UK since childhood, people fleeing war and persecution, torture survivors and victims of human trafficking. Such vulnerabilities cannot be managed in detention and will no doubt be worsened by the prospect of bail being denied.

Since 2000, 49 people have died in immigration detention centres, and incidents of self-harm are now recorded at more than one a day. The Home Office’s immigration detention facilities are not fit for purpose, and narrowing the availability of immigration bail will only make the situation worse.

The uncertainty of indefinite detention is cruel not only for the detainee, but for family members waiting for them at home. Research by Bail for Immigration Detainees, which helps 3,500 detainees to apply for bail every year, shows that children of detainees are often British citizens, and suffer a range of physical and mental effects due to separation from their parent. Those are compounded by further, unexpected separation. For those children, cutting off the prospect of bail will lead to further mental ill health and suffering.

The majority of people in detention do not need to be there. More than 60% of people taken into detention are eventually released, their detention having served no purpose, at a cost of £76 million a year, according to Matrix Evidence research. BID has said that the Home Office repeatedly breaks the law and detains people unlawfully. In the past two years, the Home Office has paid out £15.1 million to 584 people whom it had detained unlawfully.

The clause will make it tougher for people to get bail and leave them trapped in detention for longer. The Government have committed to reducing detention, but this measure is counter to their own rhetoric. It means less justice for detainees, more harm for vulnerable refugees and more wasted costs for the taxpayer. That is why Labour opposes the clause.

[Stuart C. McDonald]

As I said in my intervention on the Minister, the decision has to be based on whether there is a reasonable prospect of imminent removal, and included in that is the question of the likelihood of the person absconding if bail is granted. If any historical non-compliance has any sort of relation to that question—if it is relevant—the tribunal will obviously already be able to take it into account. Today, the Minister is asking us to tell the decision makers to take into account historical non-compliance even where it has absolutely no bearing, in the decision maker’s view, on the fundamental question of whether someone should be interned. That is moving from weighing up those considerations in the question about removal to using detention almost as a form of punishment. It is completely unjustified, and I echo what the shadow Minister has said.

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

Nationality and Borders Bill (Tenth sitting)

Debate between Stuart C McDonald and Bambos Charalambous

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[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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[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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[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.

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[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 ---

[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.

Nationality and Borders Bill (Ninth sitting)

Debate between Stuart C McDonald and Bambos Charalambous

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[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.

Nationality and Borders Bill (Eighth sitting)

Debate between Stuart C McDonald and Bambos Charalambous

Committee stage
Thursday 21st October 2021 Public Bill Committees

[Bambos Charalambous]

Since Dublin 3 ended, there are very few resettlement routes available. That is one of the problems. Unless there are safe resettlement routes, we are just fuelling dangerous journeys.

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

It is repeatedly asserted that the UK has an exceptional record in terms of resettlement. It has a decent one; it is about mid-ranking in the European Union, in terms of the number it has taken per head of population over the years. Similarly, it is mid-ranking in terms of the number of asylum cases it assesses. It is good, but it is not exceptional and it is not a justification for the measures in this Bill.

[Bambos Charalambous]

The hon. Gentleman is absolutely right. Unless safe routes are developed, all that will happen is that there will be an increase in dangerous crossings, because that will be the only way in which people can reach the UK.

--- Later in debate ---

[Stuart C. McDonald]

I am grateful, because that clarifies the issue. Amendment 104 is in the name of our Labour colleagues, but it has our full support. It makes the point that it is essential that accommodation centres are not de facto detention centres or prisons, in the way that Napier has been, with basic liberties and freedoms more theoretical than real. It raises a crucial question about how we can ensure that such places have accountability and oversight.

The Government will be using sections of the 2002 Act that are not yet in force to implement many of their policy goals, but there is still dubiety about precisely which ones. Section 33 of the Act would have created advisory groups for each accommodation centre, with powers to hear complaints from residents and report to the Home Office. Is that section to be commenced? If not, what alternatives do the Government propose to ensure that such centres are subject to appropriate oversight? I will leave it to the shadow Minister to flesh out that point.

Amendments 102 and 160 take us back to how the Home Office engages—or, rather, does not engage—with other tiers of Government. The Minister was perhaps asleep at the wheel earlier, because his answer was short on detail about engagement with local authorities, and in particular, the devolved Administrations. I accept that asylum is reserved, but these institutions touch on all sorts of powers and services that are the remit of devolved Governments and Parliaments or local authorities, including planning policy and the provision of health, social or other welfare services and education services. In particular, consistent with our championing of local government autonomy and the idea that local government should be seen as a partner rather than an assistant of the Home Office, amendment 102 demands that these centres not be built in a local authority’s territory without consent from that local authority.

The way in which local councils were treated in relation to both Napier and Penally was disgraceful. The Home Office did not even consult Folkestone & Hythe District Council and Kent County Council about the extension of planning permission at Napier because, it said, of urgency, and yet as the House of Lords Delegated Powers and Regulatory Reform Committee notes, it must have known for at least 12 months that planning permission would have expired. It had 12 months in which to carry out consultation, but that was still the excuse.

As I said at the outset, we pose all these questions with a view to ascertaining what precisely the Government intend and why there are not greater constraints in the Bill, but ultimately we believe that this is not the right direction of travel. We support community dispersal—improving that system, making it work better, and involving more councils. We hope that the Government come back to that view and make that system work instead.

[Bambos Charalambous]

I will speak to the three amendments that are in my name and the names of others, but I will start by speaking to amendment 104.

No one on this Committee can fail to have seen the extremely worrying track record of the Government when it comes to accommodation for asylum seekers. The appalling headlines in connection with Napier Barracks cannot have failed to reach anyone who takes any sort of interest in the news. We are deeply concerned, therefore, that in clause 11 there are provisions for creating asylum accommodation centres. The clause suggests a possible wide-scale replication of the type of accommodation seen at Napier Barracks. That is because clause 11 gives the Government powers to house different groups of asylum seekers in undefined accommodation centres. It seems that these centres will involve congregated living in hostel-type accommodation, which has been shown to be unsuitable to house people in the asylum system for long periods. Such a move away from housing in the community is likely to impede integration prospects and will make access to needed support and services more difficult.

Clause 11 also creates new powers to provide different types of housing—namely, accommodation centres—for those at different stages of their asylum claim, including those with “inadmissible” asylum claims. The rationale given in the explanatory notes to the Bill is that that will

“increase efficiencies within the system and increase compliance”,

although again no evidence is given to support that claim.

The term “accommodation centre” is not clearly defined, although the implication is that it will mean that more people seeking asylum will be living in large-scale congregated settings. It is important to state clearly that this represents a wholescale move away from the current dispersal system, whereby people live in homes in the community across the country.

There is therefore a clear indication that the Government are seeking to replicate the kind of inhumane accommodation that we have seen at Napier. As I will set out, this prison-like, isolated and dystopian accommodation provides an extremely poor environment for engaging with asylum claims. There is strong evidence that such accommodation is likely to retraumatise extremely vulnerable people and hinder future integration.

The Government may seek to deny that a punitive approach is part of their agenda, but such a denial would not tally with the actions of the Home Secretary in August, when she visited the notorious reception centre on the Greek island of Samos; campaigners have described it as “prison-like” and “inhumane”. It is shocking that, having visited the Greek reception centres in the summer, the Home Secretary appears to wish to emulate the system whereby more than 7,500 refugees, including 1,700 children, are being detained in refugee camps in unsanitary and inhumane conditions.

However, the evidence that that is indeed the intention seems clear, because in August the Home Secretary also published a prior information notice for the procurement of new accommodation centres, with initial submissions invited by the end of September 2021. The details of the tender are subject to commercial confidentiality and therefore the details are known only to potential contractors who have signed non-disclosure agreements. What is public is that the contract is to be delivered in accordance with part 2 of the Nationality, Immigration and Asylum Act 2002, and it is stated that it is for housing up to 8,000 people for periods of up to six months. The tender raises serious concerns about how that approach will interact with provisions set out in clause 11, given that contracts will be awarded before the Bill receives Royal Assent. There are also clear concerns about how accountability and standards can be maintained in asylum accommodation when there is no public access to these contracts.

It is also worth stating for the record that since April 2020, the Home Office has been using two large-scale accommodation centres for asylum-seeking men who have arrived in the UK by boat—Napier barracks in Kent, and the Penally camp in Wales, which is now closed. A report by the all-party parliamentary group on immigration detention noted that, although legally speaking, those are not detention centres, they none the less replicate

“many of the features found in detained settings—including visible security measures, shared living quarters, reduced levels of privacy, and isolation from the wider community”.

Our amendment would take away the detention element of those accommodation centres, as we feel that those de facto detention conditions are completely cruel and wholly inappropriate, and will hinder future integration.

Nationality and Borders Bill (Sixth sitting)

Debate between Stuart C McDonald and Bambos Charalambous

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[Bambos Charalambous]

It is the view of the Opposition that British nationality law is out of kilter with adoption law in England and Wales and needs to be rectified. In those countries where an adoption order has been made by a court, it may be made where a child has reached the age of 18 but has not yet reached the age of 19; yet such an adoption order confers British citizenship automatically only where the person adopted is under 18 on the day the order is made. It seems evident to the Opposition that that is a slip that results in unnecessary unfairness.

The adoption law as it stands was enacted some 20 years after the relevant nationality law, and apparently the inconsistency that it created was overlooked. It has never been suggested that the adoption law and British nationality law should be out of step where a court in England and Wales authorises a person to be adopted by a British citizen parent. It is important for every member of the Committee to know that the stated problem is not merely a theoretical one; it generates victims in real life, including a university graduate who was 18 but not yet 19 when she was adopted by her aunt after her mother died of cancer, and who will have no basis on which to enjoy family life in the UK with her new adopted mother once her student status has ended.

We therefore believe that the position needs correcting. The Bill is the right vehicle to make that correction, which is not controversial and which we do not believe should divide Committee members on party lines. The amendment, which should command cross-party support, would bring British nationality law in line with adoption law, so that where our courts make an adoption order in respect of a person who is 18 but not yet 19, and the adoptive parent was a British citizen, British citizenship is conferred automatically on the person adopted. No adoption order may be made in respect of a person who has reached the age of 19, so the proposed amendment affects only those who are 18 but not yet 19 when the adoption order is made.

It is also important to point out that it is no answer to the problem to say that an 18-year-old adopted by a British citizen will be able to apply for registration by an adult as a British citizen at the Secretary of State’s discretion under proposed new section 4L of the British Nationality Act 1981, provided for in clause 7. The problem relates to those persons who should be treated as British citizens automatically from the date of their adoption by a British citizen. Where the only solution is a subsequent application for British citizenship at the Secretary of State’s discretion, there is the risk that such an application may be overlooked, or refused on another basis, such that the intention of Parliament to confer British citizenship on a person adopted by a British citizen will be frustrated. We therefore believe that the sole solution is to make this simple amendment to align British nationality law with adoption law.

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

It is a pleasure to serve under your chairship, Ms McDonagh. I will speak in support of amendments 13, 14, 30 and 31. I also support amendments 34 and 35. Amendment 35 in particular seems to make perfect sense—although it relates exclusively to England and Wales. I confess that I have not managed to ascertain whether a similar issue arises in relation to either Northern Ireland or Scotland and, depending on what the Minister says in response, that is perhaps something we can all do our homework on before Report stage.

On the other amendments, this brings us back to the point I made when making the case for no fees for introducing applications, or at least restricted fees. These fees put people off from accessing their rights, especially when there is discretion or subjective criteria are used that mean people can have only a limited idea about whether paying a fee and making an application will result in anything positive happening. If they can afford it and if they know that they meet the criteria, people will pay a fee, but this would not necessarily make it easier to see in advance whether they would be able to show historical injustice or exceptional circumstances, or that the fault lay with the public authority.

We have already debated the fee aspect and made the case for lower fees to ensure that people are not put off from seeking to fix injustices that they have suffered. These amendments taken together address the other side of the coin: what can be done to make the criteria more transparent so that people can feel confident with their applications?

Amendments 30 and 31 seek to ensure that both officials and the victims of injustice are aware of how the provisions brought about by clause 7 are being implemented. If a new type of injustice in UK nationality law is discovered, or circumstances are deemed so exceptional that the Secretary of State decides that registration is merited and she grants such an application, she will first need to ensure that policy and guidance are updated so that those processing other similar applications are aware of that fact and people applying in the same circumstances are successful. More than that, she will also be required to take steps to try and ensure that people who might be entitled to register in the same circumstances know that they can do so.

Again, as I said earlier, we know from Windrush how important taking such action to make people aware of their rights can be. In short, people will have a greater understanding of whether their application will be successful and those who meet the criteria set out in policy will apply. Those who are making decisions will be aware that in previous cases similar applications have been granted and those applications will therefore be successful.

Amendments 13 and 14 challenge a Minister to explain why the provisions introduced by clause 7 are expressed entirely as “may” rather than “must”. If a person proves they are a victim of an injustice, which is carefully defined in the clause, then why should the Home Secretary still have a totally unlimited power to refuse registration in any event? Similarly, if a person shows they were denied citizenship because of an act of omission by a public authority or by exceptional circumstances, why should the Home Secretary have a totally unfettered power to say no?

The big fear is that the Secretary of State has the broadest discretion possible regardless of whether a person meets other criteria. Who will make an application, particularly if there is a fee involved? I can see possible flaws in going completely the other way to a situation where it is a requirement and a must, but that would be better than the totally unlimited discretion that is in the Bill right now. I simply challenge a Minister to come up with a better form of this.

[Bambos Charalambous]

On amendment 30, we want to make sure that the Secretary of State is required to take all reasonable and necessary steps to ensure that the right to registration under clause 7 is made accessible to all its intended beneficiaries. We also want to ensure that historical legislative unfairness is corrected. We do not believe that it is sufficient to rely on that being done ad hoc, subject to the discretion of any particular Secretary of State.

As has been obvious from discussions on previous clauses, several injustices have been identified in British nationality law in our policy and practice over the years. Important provisions in the Bill are necessary to correct some of that, including changes to previous amendments to the British Nationality Act 1981, which only partially corrected a particular injustice.

The Opposition understand and accept that the broad purpose of clause 7 is to provide the means to correct further injustices, and we broadly support its aims. We are concerned, however, about the implementation of the clause, and the amendment serves to address that.

Hon. Members will be aware that clause 7 introduces a new discretion to register adults as British citizens or British overseas territories citizens where that is immediately necessary or appropriate in view of some historical injustice, an act or omission by a public authority, or other exceptional circumstances. As it stands, that provision is welcome and reflects the underlying purpose of all rights of registration under the British Nationality Act 1981 to ensure that citizenship is the right of all persons connected to the UK or the British overseas territories.

However, given that clause 7 relates to historical legislative unfairness, it raises a concern that it may be relied on by Ministers to avoid making necessary future amendments to the 1981 Act, required specifically to correct such injustice. We are deeply concerned, because when such an injustice is identified, Ministers must take the appropriate action to correct it in the Act. It is not enough to rely on the opinion of any particular Minister or group of Ministers. For that reason, we want to insert the following in clause 7:

“Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—

(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;

(b) amend or make policy or guidance in line with the registration of P;

(c) make that new or amended policy or guidance publicly available; and

(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.”

Clause 7 must genuinely be given real practical effect—it must not become a mere token statutory provision. Registration requires someone to make a formal application, so the clause will be ineffective if uncertainty over the result of an application, coupled with any cost or other impediment to do so, deters people from making applications. In such circumstances, clause 7 could stand redundant on the statute book because no one to whom it ought to apply knows about it or is sufficiently encouraged or enabled to apply for the discretion to be exercised.

For those reasons, the following matters must, at a minimum, be addressed. It is generally inappropriate, as with registration more generally, for the Secretary of State to charge prohibitive and above-cost fees to prevent people from exercising their rights to British citizenship. The fees are made even more prohibitive if it is not possible to assess in advance that an application will be successful because there are no fixed criteria by which the right to be registered will be assessed.

Ministers should also be pressed to give an assurance that when an individual application is successful, there will be positive action to ensure that other potential applicants are made aware of their equal or similar right to register at their discretion. Under amendment 30, if an unfairness, act or omission by a public authority or exceptional circumstances are identified that make it necessary to exercise discretion, appropriate publicity must be given to it, and there should be a formal updating of public-facing policy. It must be made clear that others in the same circumstances will succeed with their applications to register, if they make them; otherwise, people will continue to be excluded from citizenship in circumstances where it is clearly intended that they should not be.

--- Later in debate ---

[Bambos Charalambous]

The clause seeks to enable the Secretary of State to waive requirements for naturalisation as a British citizen under section 6, naturalisation as a British overseas territories citizen under section 18, or registration as a British citizen under section 4 of the British Nationality Act 1981. At present, there is no power to waive the requirement to have been present in the UK at the start of the qualifying period except in relation to applications for naturalisation as British citizens from current or former members of the armed forces, which presents a barrier in otherwise deserving cases.

The immediate necessity for the clause arises from the circumstances of people of the Windrush generation, many of whom were deprived of their rights to register their British citizenship by the Home Office’s failure to ensure that people were aware both of their rights and of the need to exercise them. It has since become necessary to use naturalisation without a fee as a means to put people in the position they should have been in all along as British citizens. However, since some people were wrongly exiled from the UK, the remedy has been inadequate for some people who were only recently able to return.

The main barrier stems from the requirement for naturalisation that a person must be present in the UK at a fixed point five or three years before the date of their application to naturalise. The clause therefore seeks to amend the 1981 Act to allow the Secretary of State to waive the requirement that the individual must have been present in the UK or relevant territory at the start of the qualifying period in the special circumstances of a particular case. The waiver will be introduced in relation to the requirements to naturalise a British citizen under section 6 of the 1981 Act, to naturalise as a British overseas territories citizen under section 18 or to register as a British citizen under section 4.

The clause would not have been necessary had the Windrush scandal not happened in the first place, and we wish to place on the record our concerns that it happened because of the hostile environment that was created by the Home Office. Although we welcome clause 8 and will support it, we wish that it had never been necessary because of the injustice of what happened to all those people.

[Stuart C. McDonald]

I want to pick up on one thing the shadow Minister mentioned in his speech. He is right that the most profound implications of the clause relate to the correction of wrongs that were done to the Windrush generation, but I slightly disagree with him when he says that it would not have been necessary but for that.

Certain nationality applications always have caused some awkwardness. In the dim and distant past, when I was one of these wicked immigration lawyers, I would have people come to me who were applying to register, and the requirement that they had been in the country five years ago at the start of the residency period would sometimes cause problems. I do not know what I was doing five years ago today, and sometimes it would require a hell of a lot of checking to work it out.

There were the odd occasions where the Home Office kindly returned the applications, because it was going to have to refuse them as the person had perhaps gone abroad for a couple of weeks five years ago. If the Home Office had not done that, it could have just banked the fees and refused the application. The most profound implication is in relation to Windrush, but I think overall that this is a good thing to do anyway and a slightly broader discretion is welcome.

Nationality and Borders Bill (Third sitting)

Debate between Stuart C McDonald and Bambos Charalambous

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[Bambos Charalambous]

Q Do you have any figures on the cost of offshoring?

George Brandis: I do not have those figures in front of me. Under the regional processing agreements that Australia entered into with Nauru and New Guinea, the establishment of those centres, which required capital works and so on, was contributed to by Australia.

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

Q Thank you for giving up your time this morning, Mr Brandis. On the capacity of the offshore centres, am I right to say that it would be in the region of around 3,000 offshore places in total?

George Brandis: There were always more in Nauru than in New Guinea. Whether at the maximum point they reached as many as 3,000, I am not sure, but I would not be surprised if it was roughly that figure.

Nationality and Borders Bill

Debate between Stuart C McDonald and Bambos Charalambous

2nd reading
Tuesday 20th July 2021 Commons Chamber

[Bambos Charalambous]

The hon. Member misunderstands me. It is the process of the Bill getting here that has been rushed, not the debate we have had today.

There is also no impact assessment accompanying the Bill. We have no idea how much it will cost or what the overall impact will be.

[Stuart C. McDonald]

The Bill has seven placeholder clauses—something I have never seen before—so the House will not see what the Government are up to until the Committee stage where most Members will not take part.

[Bambos Charalambous]

The hon. Member makes an excellent point.

Less than a week ago, we had hon. Members rightly berating the Minister for Care, screaming blue murder at her failure to produce an impact assessment for the health and social care regulations. Where are those howls today? Not a word. I dare not ask about the legal advice that was sought to formulate this Bill, but if there was an Olympic event for legal gymnastics, it would definitely win a gold medal.

The Bill is riddled with holes. It is fatally flawed and it will not work. It will not work because of the glaring omission of the lack of bilateral agreements with France and other EU countries. Conservative Members can huff and puff all they like, but it should begin to dawn on them that without any such agreements the Bill will not work and it will not stop any channel crossings.