Draft Cessation of EU Law Relating to Prohibitions on Grounds of Nationality and Free Movement of Persons Regulations 2022

Debate between Tom Pursglove and Stuart C McDonald

Wednesday 16th November 2022 General Committees

[Stuart C. McDonald]

First, will we ever see something in domestic law that is designed to protect the rights of those who are protected by treaty? Secondly, on the list of exceptions in schedule 4 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020—quite a mouthful—a huge list of rights are retained under that SI. Are they affected by the draft regulations? Will the Minister answer that, now or later?

[Tom Pursglove]

I am grateful to the hon. Gentleman for his intervention. It reminds me of times gone by, when we regularly debated immigration-related matters in the House, and probably at times in this Committee Room. My clear understanding is that, given the protections in the withdrawal agreement, no rights are being taken away. However, I am happy to take away his substantive question, and to come back to him on it in writing. With that, I commend the regulations to the Committee.

Question put and agreed to.

Oral Answers to Questions

Debate between Tom Pursglove and Stuart C McDonald

Monday 20th June 2022 Commons Chamber

[Mr Speaker]

We now come to the Scottish National party spokesperson, Stuart C. McDonald.

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

On World Refugee Day, we pay tribute to all the fantastic refugees who have made utterly amazing contributions to our society and who were, thank goodness, able to have their claims heard here and rebuild their lives here instead of being dumped and offloaded thousands of miles away. The full hearing on whether the Home Secretary’s policy in Rwanda is lawful will take place in July, as the Minister said. Surely, if the Home Secretary has an iota of respect for the UNHCR and the importance of the refugee convention, she will confirm that she will wait for the outcome of that hearing instead of gambling on another reckless, degrading and expensive attempt at these removals.

[Tom Pursglove]

The hon. Gentleman will recognise that we do not comment on ongoing legal proceedings. We have had this debate many times, but what I would say is that every day that this new partnership is not in operation is a day that people continue to risk their lives in the channel. That is not acceptable or sustainable, which is why we are taking the steps we are.

Asylum Seekers: Removal to Rwanda

Debate between Tom Pursglove and Stuart C McDonald

Monday 13th June 2022 Commons Chamber

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

(Urgent Question): To ask the Home Secretary whether she will make a statement on the planned removal of asylum seekers to Rwanda.

[The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)]

Our world-leading migration and economic development partnership with Rwanda is a global first and will change the way we collectively tackle illegal immigration. This is a global problem that requires international solutions.

Rwanda is a fundamentally safe and secure country with a track record of supporting asylum seekers. Individuals will be relocated to Rwanda and have their asylum claims processed by the Rwandan authorities. The partnership is an important part of our reform of the broken asylum and migration system. I welcome the High Court’s decision on Friday on this, but, with legal proceedings ongoing, it would be inappropriate to comment further than to say that we comply fully with our legal and international obligations.

We aim to move forward with a policy that offers new opportunities for those relocated to Rwanda and enables us to focus our support on those most in need of our help. The British public rightly expect us to act. Indeed, inaction is not a responsible option when people are drowning and ruthless criminals are profiting from human misery. Decisive leadership is required to tackle the smuggling of people through illicit and criminal means. This evil trade must be stopped.

The principle of the plan is simple: people will no longer be able to pay evil people smugglers to go to a destination of their choice while passing through sometimes several safe countries. If someone comes from a safe country, they are picking the UK as a preferred destination.

Uncontrolled immigration reduces our capacity to help those who most need our support. It puts intolerable pressure on public services and local communities. Long-lasting change will not happen overnight; it requires a long-term plan. As I have said many times before in this House, there is no one single solution, but this Government will deliver the first comprehensive overhaul of the asylum system in decades.

[Stuart C. McDonald]

I sincerely thank you, Mr Speaker, for granting this urgent question.

This is not world-leading policy. If anything, this leads to the total shredding of the refugee convention. This cash-for-deportations policy is akin to state-sponsored trafficking and transportation. What is more, it is a grim political stunt being rushed out to shore up the Prime Minister again. Why else was this flight organised before the relevant provisions of the horrible Nationality and Borders Act 2022 were brought into force? What is the Minister’s explanation for that?

More fundamentally, why are Ministers pressing ahead when even the most basic safeguards are not in place? I fear that the age assessment processes are totally inadequate and will see children sent to Rwanda. As I understand it, such a difficult process is being crammed into a 30-minute interview with two immigration officers, with young people left unaware of their rights to challenge the decision that they are an adult. Is that accurate? How on earth can such vulnerable people as trafficking victims, torture survivors and LGBT people be identified by a basic screening interview, which is another process that the Minister know takes a long time? Why is it permissible at all for trafficking survivors to be part of the inadmissibility procedures?

Access to legal advice is crucial, so let me ask: can the Minister confirm how many of those scheduled to be on the flight tomorrow have not yet been able to seek legal advice? There is no functioning joint committee or monitoring committee yet, so how can it possibly be right to proceed when these basic oversight bodies are not yet established? He knows that the overwhelming balance of legal opinion, including that of the United Nations High Commissioner for Refugees, is that this policy is totally illegal. Surely, if the Government had any final shred of respect for the rule of law, they would at least wait until a final ruling in July before commencing this policy.

This is a policy that will not work on its own awful terms. Will the Minister confirm that the Rwandan asylum system has capacity only for a couple of hundred new cases each year, and has he been made aware of the evidence that, even now, more risky routes are already being tried by smugglers as a result?

In conclusion, this will not hurt horrendous people smugglers one jot, but it will badly hurt those who have fled persecution and sought protection here, and this policy brings shame on the UK internationally.

[Tom Pursglove]

I am grateful to the SNP spokesman for his questions, and it is fair to say that we will have to agree to differ on this. We have had many debates over the last few months on this issue, and I will comment on the broad issues he has raised, while of course reflecting the fact that there are ongoing judicial proceedings.

First, I want to say that I feel the hon. Member’s use of language at the beginning of his remarks was not the sort I would expect from him. He is usually temperate in his use of language, but to compare the new partnership with human trafficking is, frankly, plain wrong and very offensive not just to this Government, but, I would argue, to the Rwandans.

The hon. Member knows full well, because I have said so repeatedly, that unaccompanied asylum-seeking children will not be transferred as part of this partnership. There will be a thorough screening process in place, and that is ongoing. Of course, cases are looked at on a case-by-case basis, taking proper account of all the relevant circumstances. On the point about access to legal advice, people are able to access legal advice in detention in the usual way.

It probably has not escaped the hon. Member’s notice, and the House’s notice, that the UNHCR places asylum seekers in Rwanda, which I think speaks volumes about its judgment. [Interruption.] Hang on! The shadow Home Secretary likes to chunter from a sedentary position, but she will have her opportunity in a moment. The truth is that the UNHCR, through its actions in placing people in Rwanda, clearly believes that it is safe for people to be placed there. We have of course been through our own thorough processes to make judgments with our country information notices, and that is the right and proper way of handling this.

Again—I have said this many times before, but it bears repeating—we will always live up to our international obligations and the laws that we are supposed to be subject to.

Foreign National Offender Removal Flights

Debate between Tom Pursglove and Stuart C McDonald

Wednesday 18th May 2022 Commons Chamber

[Mr Speaker]

We now come to the SNP spokesperson, Stuart C. McDonald.

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

I, too, thank the Minister for advance sight of his statement, but I do not thank him either for the fact of the statement, which I agree was completely pointless, or for the overblown rhetoric it contained—rhetoric that I more commonly associate with the Minister’s boss than the Minister, who I have a great deal of respect for.

On that note, my first question is, why can we not try to have a sensible, grown-up discussion about this complex policy area? It is frankly nonsense to speak about “sides”. There is a balance to be struck, and it is our responsibility as legislators to debate that sensibly. It is perfectly legitimate for us to question whether the balance is in the right place or to question the disproportionate impact on some communities. As I have pointed out before, in endless urgent questions and on similar topics, Stephen Shaw, the Government-commissioned independent expert, said that the deportation and removal of people brought up here from a young age was “deeply troubling” and entirely “disproportionate”. Yes, of course many deportations are absolutely justified to protect the public, but it is nonsensical to ignore the fact that some are very cruel, particularly when they relate to people who have lived almost all their lives here and have absolutely no connection to the place they are being deported to.

The Government refuse to acknowledge the fact that these decisions can have profound impacts on the family life of the partners, spouses and children of those being deported, and on others, or that it is legitimate to press the Government on that. So let me try a different argument. If someone has been here since they were in infancy, grew up here, was educated here, commits crime here and is potentially dangerous, why is it fair on the country to which they are deported to have to manage that risk, especially if it is possibly far less equipped to do so, rather than this country, where that person was brought up? The Minister talks about letting people out on to the street, but he is letting people out on the street—just not our streets, but those of another country, with which they have absolutely no connection.

[Tom Pursglove]

What we do as a Government is take responsibility for our returns. We live up to our legal obligations in this space, and that is right and proper, and what the British people expect. But we understandably expect other countries around the world to do the same in taking their immigration offenders and those who have committed criminality in this country and are liable to deportation.

I was slightly surprised to hear the hon. Member say that there has been a lack of interest in these matters in the House. There has been quite a lot of interest, in terms of Twitter commentary and parliamentary questions, and I can certainly vouch for the fact that I have received ministerial correspondence. I also know that Members from across the House have had constituency correspondence on this, so there is certainly interest. On a day when we have had another of these flights—it has attracted considerable media attention, as these matters often do—it is right and proper that I am able to come to the Dispatch Box to set out the steps that the Government are taking. Quite often, Ministers are criticised for not coming to the House to set out such measures. I am here today, I am answering questions from across the House, and I am also here to reassure the British people that we have a plan and we are taking action.

Nationality and Borders Bill

Debate between Tom Pursglove and Stuart C McDonald

Consideration of Lords amendments
Wednesday 20th April 2022 Commons Chamber

[Tom Pursglove]

I will make some progress but I will gladly give way later. The Government continue to work with international partners to ensure removals of people with no right to be in our country.

To turn to Lords amendment 4G, although the Government have accepted Lord Anderson of Ipswich’s amendments that introduced further safeguards to the deprivation of citizenship power, a further amendment was tabled by Baroness D’Souza that removed the provisions protecting the validity of deprivation orders made before the Bill’s commencement and alleging that they offered individuals no right of redress. That is simply not the case. These provisions explicitly ensured that anyone affected by the retrospective provision would still have a right of appeal, but removing them from the clause could cast doubt on the validity of deprivation orders already made before the provisions come into effect. That poses an unacceptable threat to the UK’s safety and security, as it could enable dangerous individuals to regain their British citizenship and thus the freedom to come and go as they please in the UK. Our position on that has not changed. I make it absolutely clear that we cannot allow that unnecessary security risk to happen.

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

Will the Minister explain a bit more about why he thinks that that proposal poses such a danger? All the Home Office has to do is make the same decisions again. I think we are talking about 50 or 60 decisions, but this will mean that the proper safeguards are in place.

[Tom Pursglove]

I would argue that the safeguards that we have accepted, which Lord Anderson proposed with real sincerity, a real interest, expertise and experience in these matters, strike the right balance between keeping our people in this country safe from harm—that is, of course, the first duty of any Government and a responsibility that we take incredibly seriously—while making sure that there is judicial oversight of the process and that, as part of the Home Office’s work, we have internal checks to ensure that the powers will be used appropriately.

Lords amendment 5B relates to the compliance of part 2 of the Bill with the refugee convention. The Bill—I insist on this in the strongest terms—is compatible with all of our obligations under international law. Our position has not changed and we do not consider it necessary to put this on the face of this Bill.

Nationality and Borders Bill

Debate between Tom Pursglove and Stuart C McDonald

Consideration of Lords amendments
Tuesday 22nd March 2022 Commons Chamber

[Tom Pursglove]

My hon. Friend puts it better than I could. He has stated with crystal clarity the nature of the change, which I believe is enhanced and improved by accepting the sensible and pragmatic amendments tabled by Lord Anderson. It is also worth saying for the benefit of the House that taking out of the equation the issue of citizenship being obtained by fraud, the provision relates to 19 cases a year on average, and the changes we are making through the Bill do not alter the qualification, so no additional individuals will be brought into scope. The changes relate purely to the matter of notification.

On a procedural note, I should say that although Lord Anderson’s amendments were agreed in the other place, they were deleted when peers agreed to remove the substantive deprivation of citizenship clause from the Bill. The Government are therefore retabling the substantive clause, as amended by peers to include Lord Anderson’s amendments. I hope that meets with the favour of the House. It acts on and reflects the desire expressed for greater safeguards and greater clarity on these measures.

Amendment 5 inserts a clause specifying that nothing in the part of the Bill to which it applies authorises any policies or decisions that are incompatible with the 1951 refugee convention or the 1967 protocol relating to the status of refugees. It is the clear position of this Government that everything we are doing is compatible with all our obligations under international law. We do not think it is necessary to set that out on the face of the Bill. The Government therefore do not agree to the amendment.

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

The Minister will be aware that there is a massive range of legal opinion and that the opinion of the United Nations High Commissioner for Refugees is that that is not the case at all when a lot of what is going on in part two of the Bill is in flagrant breach of the refugee convention. If the Minister is so certain that the powers do not breach the refugee convention, what is the harm to him of accepting the amendment?

[Tom Pursglove]

We do not see a need to augment the Bill in the way that the hon. Gentleman suggests. A plethora of opinions are expressed in the House and more generally when we debate the nature of what is proposed and whether people think it is the right thing to do. We are clear as a Government that we think that the package of measures we are introducing through the Bill is a proportionate response to the issues we face and will fix the broken asylum system in particular. We are also clear—and I have been clear on many occasions in this House and through the various iterations of the Bill—that we will at all times live up to our international obligations.

--- Later in debate ---

[Stuart C. McDonald]

I am grateful to the Minister for giving way. He talked about unaccompanied asylum-seeking children, but that means he is not ruling out other children being placed in awful offshore detention facilities. Will he publish an economic impact assessment on how many billions of pounds this will cost the taxpayer? It has been promised for months.

[Tom Pursglove]

I am not going to get drawn into listing all other possible exemptions to removal in that way, but I set out on Report that, for example, family groups would not be separated, because that would clearly not be in accordance with our international obligations. Clearly, much will depend on the particular circumstances of the countries we are working with. We always work in the asylum system and in the immigration space on a case-by-case basis, but I want to assure hon. Members that we will continue to uphold our international obligations and ensure that any removal is compliant with our obligations under the refugee convention and article 3 of the European convention on human rights, which protects against torture and inhuman and degrading treatment.

I am aware that there has been speculation recently about the potential costs of, and possible locations for, overseas asylum claim processing. I cannot give a running commentary on negotiations, nor share information that could tie the hands of the negotiators. I only say again that the provisions are an essential part of the suite of measures that we are introducing to deliver our objective of discouraging unwanted behaviours, such as making unnecessary and dangerous journeys, and we therefore cannot agree to the amendments.

Amendment 10 creates a more generous approach on family reunion for those who are already in Europe, which we do not consider fair. There is already generous provision in our rules for family reunion, under which more than 40,000 people have been reunited with family members in the UK since 2015. This is a single global approach to family reunion, which does not encourage what are often dangerous journeys into Europe, facilitated by smugglers and traffickers. We therefore cannot support the amendment. Similarly, amendment 11 would commit the UK to resettling at least 10,000 refugees each year.

Our view has long been that the number of refugees and people in need of protection that we resettle each year must be based on our capacity, our assessment of the international situation and our ability to care for people properly when they come to the UK. I understand that hon. Members are seeking assurances that our doors will remain open to those in need, but I respectfully suggest that what is really needed to deliver refugee resettlement is not a number but an approach—an approach that is compassionate and flexible. That is exactly what the Government are delivering through our new plan for immigration.

--- Later in debate ---

[Tom Pursglove]

Let me be very clear: there is absolutely no reason why any Ukrainian should pay an evil people smuggler to come to be safe in the United Kingdom. I have set out the detail of our two generous schemes, which are uncapped and wide in capturing people’s many and varied circumstances. I would not want anybody—this applies to any group—to put their life in the hands of evil criminal gangs who have only one regard, which is to turn a profit, putting those individuals in great danger. We have had many debates about the nature and construction of the Ukrainian scheme and I am confident that there is no reason why people should resort to that means of travelling to the United Kingdom. Nobody should encourage Ukrainians, or anybody else for that matter, to make those perilous journeys.

[Stuart C. McDonald]

Will the Minister give way?

[Tom Pursglove]

I have given way to the hon. Gentleman a few times and I want to conclude my remarks.

Refugees from Ukraine

Debate between Tom Pursglove and Stuart C McDonald

Wednesday 16th March 2022 Commons Chamber

[Tom Pursglove]

There has been a little commentary around this matter, including at the Home Affairs Committee session this morning. It is fair to say that one important strand of work in getting this right is working intensively with NGOs to develop the system in the most appropriate and streamlined way. We have touched on the safeguarding issues in the course of this debate, and we will want to get those right as this is rolled out, but it is fair to say that further, imminent announcements will provide more detail on the specific point the hon. Gentleman raises. I think he will welcome the work going on with NGOs, which have real expertise and experience with these issues, to develop this scheme so that it is the very best it can be from the very start.

We hear the offers from the devolved Administrations. Our colleagues at the Department for Levelling Up, Housing and Communities will be working with them to ensure that individuals and organisations that want to sponsor an individual or family can volunteer to do so. Local authorities will play a crucial role in the delivery of the Homes for Ukraine scheme and in support for Ukrainian beneficiaries, including on integration, English language support, health, education, employment and housing.

Alongside the generous offer of accommodation that sponsors will be making, we are providing a substantial level of funding to local authorities to enable them to provide wider support to families to rebuild their lives and fully integrate into our communities. For those arriving via the Homes for Ukraine scheme, we will provide a substantial level of funding, at a rate of £10,500 a person, to local authorities, as I touched on earlier. There will be an additional top-up for child education to enable them to provide much wider support for families to rebuild their lives and fully integrate into our communities. Further details will be shared shortly.

As stated by the Prime Minister and the Home Secretary, we will not be issuing blanket visa waivers in response to this crisis. The visa process is vital, not only to keeping British citizens safe, but to ensuring that we are helping those in genuine need. We are already seeing people presenting false documents, claiming to be Ukrainians. Because of that, security and biometrics checks remain a fundamental part of our visa process, and that is consistent with our approach to the evacuation of Afghanistan.

[Stuart C. McDonald]

What I do not understand is why this is any different for the many thousands of peoples who come into this country every single day without a visa. People will try to present false documents for those nationalities, too, but we have border guards for that very purpose. What is the specific risk? It seems incredibly difficult to pin down.

[Tom Pursglove]

I know that the hon. Gentleman feels passionately about this particular point. In response, I cannot say too much on the Floor of the House, for obvious reasons, but people would rightly expect the Government to act in accordance with the security advice we receive at any given point in time and to do so responsibly. I also make the point, touching again on a point that we have been discussing this afternoon, that there is a safeguarding issue in relation to travel to this country. We will obviously want to know who vulnerable children and adults are travelling with and ensure that they are kept safe, because that is an absolute imperative. That is the position of this Government.

--- Later in debate ---

[Tom Pursglove]

It is fair to say that Ministers in government have at the forefront of their minds, as my hon. Friend does, all our safeguarding responsibilities, of which the British people would rightly expect us to be conscious and mindful, and to act in accordance with them.

[Stuart C. McDonald]

Will the Minister give way?

[Tom Pursglove]

I have been very generous, but I will give way to the hon. Gentleman one last time.

[Stuart C. McDonald]

I apologise to the Minister, because in a sense I am making a point to the hon. Member for Bexhill and Battle (Huw Merriman) rather than to the Minister. We do checks on thousands of people who come in every day from countries that do not require a visa—from the whole European Union and all the countries that I listed earlier. We do criminal record checks on the advance passenger information that we get; we do not need a visa to do those checks. We are not saying, “Let in any old person from Ukraine.” We should do the check at the border with the advance passenger information; we do not need a visa process to do that.

[Tom Pursglove]

I hear what the hon. Gentleman says. The fact is that I would like to think that we all recognise the lengths to which the Kremlin regime is willing to go, as we saw vividly in relation to Salisbury. We are incredibly mindful of that. We are simply not willing to take chances with the UK’s national security and we are acting in accordance with the advice.

I suspect that if that sort of issue were to be repeated in this country—it is unthinkable—the hon. Gentleman and his colleagues would understandably ask us why we had allowed that to happen needlessly. We simply cannot take that chance. I add that nothing that we are doing is inconsistent with the approach that Canada and the United States—our Five Eyes colleagues—are taking. They are adopting similar arrangements on biometrics and security checks.

We believe that we are offering a substantial package that will enable the British public and the Ukrainian diaspora to play their part in supporting displaced Ukrainians into the United Kingdom. We keep our support under constant review and our new routes will continue to respond, develop and keep pace with the rapidly shifting situation on the ground. I certainly welcome hearing further contributions from right hon. and hon. Members during the debate and I will of course reflect on the suggestions and ideas that are put forward.

I am hugely proud of the big-hearted and generous reaction that we have seen from the British people in response to the crisis. In response, as a Government, we have developed a comprehensive package to mobilise those offers in reality. This is a whole United Kingdom effort with Scotland, Northern Ireland, Wales and England coming together in solidarity to show our support for the Ukrainian people. We are not just talking about it; our actions will match our words. Together, I know that we will deliver.

Nationality and Borders Bill: LGBTQ+ People

Debate between Tom Pursglove and Stuart C McDonald

Wednesday 2nd February 2022 Westminster Hall

[Tom Pursglove]

I am very conscious that we have a lot to get through; a lot of points have been raised in the debate, so I will make some progress. I am very mindful of the need to stop those crossings. That is front and centre of the policy that we are delivering through this Bill. Nobody needs to get into a small boat in order to reach safety. I am also concerned when we debate these issues that I hear a lot of criticism of policy, but I do not hear much by way of a credible alternative.

We have had an extensive debate this afternoon on these matters, and that has also been the case throughout the Bill’s passage through both the House of Commons and the House of Lords, where these clauses were debated yesterday. I acknowledge this House’s interest in the issue. As well as the Nationality and Borders Bill, there is a lot of work that is going on internationally to address those issues and to advocate the values we hold in this country and believe others around the world should adopt. A global envoy is dealing with this. My right hon. Friend the Member for Cannock Chase (Amanda Milling) also has responsibility within the Foreign Office for advancing that agenda.

Several points have been raised in the course of the debate and I would like to deal with each of them in turn. First, on differentiation, currently all those who seek our protection are treated in the same way, regardless of factors such as whether they came directly to the UK or have been illegally present in the UK for a long period before claiming asylum. We will change that by introducing a new form of temporary refugee permission to stay, meant for people who meet the requirements of refugee status in the UK but who may not have come directly to the UK or who have not claimed asylum without delay once here. Decision makers who are considering granting someone temporary refugee protection status will work on a case-by-case basis, taking properly into account all of the relevant factors. That may include taking into account that the delay in claiming asylum may have been as a result of the claimant being fearful of presenting to the authorities as a LGBT+ person.

The Government very strongly believe, and would argue, that all the measures that we are advancing are compliant with our international obligations. With regard to accommodation, centres will build on current capacity while ensuring that individuals have simple, safe and secure accommodation while their claims and removals are being processed. One of the things that I want to see happen—and I am determined to see it happen—is that cases are considered more quickly, that we make sure that those who require our sanctuary are helped and supported as quickly as possible and get that sanctuary, and that those with no right to be here are removed as quickly as possible. To me, that is the safe, decent and humane thing to do.

I would like to clarify that individuals will also have opportunities to disclose the information and supporting evidence as to why they should not be housed in accommodation centres, which could include reasons linked to their sexuality. I should make the point that the accommodation centres are not detention; people are free to come and go as they please. In any event, we do not detain people indefinitely, and various safeguards are built into the arrangements and set-up to ensure that that is the case. Again, I would expect appropriate consideration of all relevant factors when deciding what accommodation is appropriate for any given individual. If people have particular needs, it is right that they are accommodated within the community.

[Stuart C. McDonald]

Will the Minister give way?

[Tom Pursglove]

I am afraid I have got a lot to get through.

A lot of points have been raised, and I want to deal with one that was made by the hon. Member for Glasgow North East (Anne McLaughlin). Knowing colleagues as I do, I think it is fair to say that nobody would walk around anywhere on a visit in silence, and I am pleased to say that everybody on the visit tomorrow will have the opportunity to speak to those at Napier. That is exactly the same arrangement as when I visited Napier a few weeks ago, and I welcome the opportunity for Members to speak to people there.

On safe third country removals, our intention is to reduce the draw of the UK by removing protection claimants to a safe country if they have a connection to a safe country where they could and should have claimed asylum. We will also make it easier to move asylum seekers from the UK to a safe country while their asylum claim is pending. A safe country is one where there is no real risk of persecution or harm to individuals sent there, and which will not send individuals to a country where they could be persecuted. Any vulnerabilities will be taken into consideration, and any representations from the claimant will be considered ahead of any removal to a safe third country. Again, this could include matters that are linked to an individual’s sexuality. Of course, we will only ever work with countries that are compliant with the refugee convention and any obligations under relevant human rights law. I should add that we do not return people if to do so would put them in danger, and the Home Secretary also has discretion to provide sanctuary to individuals if there is a risk to their lives.

On the one-stop process, late evidence and damage to credibility, the Bill will introduce a new and expanded one-stop process to ensure that asylum, human rights claims and any other protection matters are considered at the earliest opportunity. Where evidence is provided late without good reason, that should be taken into account by the decision maker as damaging to a claimant’s credibility; but where there is good reason, there will be no damage. I should add that this is not a new concept: it has underpinned existing immigration legislation under not just this Government, but previous Governments.

I am conscious of the time and that the hon. Member for Sheffield, Hallam will want to sum up, so I will wrap up my remarks. I will very gladly comment on the outstanding matters that I have not been able to reach in the short time we have had available, and I will place that in the Library so that Members can see my remarks.

Nationality and Borders Bill (Sixteenth sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Thursday 4th November 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for tabling new clause 5, which provides the Committee with the opportunity to consider granting the right of abode in the United Kingdom to former British-Hong Kong service personnel, their spouses and dependants.

The Government remain extremely grateful to former British-Hong Kong service personnel. Under the British nationality selection scheme, a limited number of personnel who were settled in Hong Kong could apply to register as British citizens. All veterans would have been eligible to acquire British national overseas status between 1986 and 1997. Therefore, many should hold BNO status. Those who hold BNO status may be eligible for the BNO visa that was launched in January this year and which provides a route to settlement in the UK, meaning that many former British-Hong Kong service personnel, their spouses and dependants will already have, or be on the path to having, settlement and subsequently British citizenship, which would confer on them a right of abode in the UK.

We must consider the impact on public services both of increased usage generated by the right of access granted by expanded citizenship, and of the additional costs in granting such rights, such as casework resource and resettlement resulting in lost income that is not budgeted for and is therefore not affordable. Additionally, although I recognise the significant contribution made by this group, it may be difficult to justify why this specific cohort should be granted the right of abode when others from former colonial garrisons are not. For these reasons, I ask the hon. Member to withdraw the new clause.

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

I am grateful to the Minister for his response. I do think there are very specific reasons why this cohort should indeed be granted what this new clause is looking for, and I suspect we will be looking at this again on Report. In the meantime, however, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 13

Reporting to Parliament in relation to the prevention of death

“(1) The Secretary of State must within 12 months of the commencement of this section, and thereafter within each successive 12 months’ period, lay before Parliament a report concerning the deaths of people subject to asylum and immigration powers.

(2) A report required by this section must state the number of people subject to asylum and immigration powers who have died since—

(a) state the number of people subject to asylum and immigration powers who have died since—

(i) the commencement of this section (in the case of the first report laid under this section); or

(ii) the previous report laid under this section (in all other cases); and

(b) set out the support arrangements that the Secretary of State has implemented in that year to assist those directly affected by the deaths, and what changes in these arrangements are planned for the next year.

(3) Subject to subsection (5), the report required by this section must—

(a) in relation to each death to which subsection (2) refers, identify—

(i) whether the deceased was at the time of death detained under immigration powers,

(ii) whether the deceased had an asylum claim outstanding,

(iii) whether the deceased was in receipt of accommodation or support from the Secretary of State,

(iv) whether the deceased was a relevant child or young person,

(v) whether the deceased was under the control of any person acting under the authority of the Secretary of State,

(vi) the age, nationality and gender of the deceased,

(vii) any protected characteristic of the deceased,

(viii) the steps taken by the Secretary of State to support any family member of, or other person directly affected, by the death,

(ix) such further information as the Secretary of State shall consider relevant; and

(b) include a statement by the Secretary of State in relation to each such death concerning the impact, if any, of any relevant function, power, decision or discretion upon the circumstances causally connected to that death; and

(c) set out any changes to legislation, policy or practice that the Secretary of State proposes or has made to prevent the occurrence or continuation of circumstances creating a risk of death or to eliminate or reduce that risk in those circumstances; and

(d) describe the Secretary of State’s policy and practice in providing assistance to or receiving assistance from statutory bodies with responsibilities relating to the investigation or prevention of death.

(4) In making any statement to which subsection (3)(b) refers, the Secretary of State shall take into consideration both acts and omissions in relation to the exercise of any function, power or discretion and the making of any decision (including any omission to make a decision).

(5) Where the Secretary of State is unable to fulfil the requirements of subsection (3) in relation to any particular death by reason of there being insufficient time to compile and consider the relevant circumstances relating to the person who has died, the Secretary of State shall state this in the report and shall fulfil those requirements in the next report required by this section.

(6) In this section—

a person is “subject to asylum or immigration powers” if that person—

(a) is detained under immigration powers;

(b) has made an asylum claim that remains outstanding (including where it is being treated as inadmissible but the person remains in the UK);

(c) is in receipt of accommodation or support provided or arranged by the Secretary of State;

(d) is a relevant child or young person; or

(e) is under the control of any person acting under the authority of the Secretary of State in pursuance of asylum or immigration functions;

“relevant function, power, decision or discretion” refers to functions, powers, decisions or discretion in relation to asylum or immigration functions that are exercised or may be exercised by the Secretary of State, an immigration officer or a person to whom the Secretary of State has delegated that exercise;

“protected characteristic” has the same meaning as in the Equality Act 2010;

a “relevant child or young person” means a person who is subject to immigration control and—

(a) is in the care of a local authority; or

(b) is receiving support from a local authority as a result of having been in such care;

a person (P) is “under the control” of another person (A) where—

(a) P is being escorted by A within or from the UK,

(b) P in the custody of A,

(c) P is reporting (including remotely) to a designated place (including remotely) in compliance with a requirement imposed by A, or

(d) P is residing at a designated place in compliance with a requirement imposed by A;

“young person” means a person below the age of 25 years.” —(Stuart C. McDonald.)

This new clause would seek to ensure there was transparency and accountability about the deaths of people subject to certain asylum and immigration powers, and policies designed to prevent them.

Brought up, and read the First time.

[Stuart C. McDonald]

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

Everyone in this Committee has expressed concern at the loss of life in the channel when people make dangerous journeys to seek asylum here. This new clause brings us to loss of life among people already in the immigration and asylum systems. It asks: what do we know about such deaths, what do we do in response to prevent other deaths from happening, and what do we do to ensure dignity in death? I am grateful to Amnesty International, Migrant Voice, Bail for Immigration Detainees, the Scottish Refugee Council and Liberty Investigates for all their work on this.

I particularly want to mention the Da’aro Youth Project, which was established in 2018 by members of the Eritrean community in London in response to the suicides of several unaccompanied teenage Eritreans who came to the UK to seek asylum, and supports the wellbeing of young people in the UK asylum system from countries in the horn of Africa. Its research found that at least 12 teenagers who arrived in the UK as unaccompanied children seeking asylum have died by suicide in the past five years, most of them Eritrean, including several in recent months. All had either been children in the care of local authorities or care leavers, while one was subject to an age dispute, one had been denied family reunion, and several had been waiting for significant periods for an asylum decision or had in fact been refused asylum.

More recently, Scottish Refugee Council freedom of information requests initially identified 51 deaths in asylum accommodation between April 2016 and June 2021. A slightly different set of FOIs from Liberty Investigates received a different number from the Home Office: 95 in the period to August 2021. Alarmingly, 69 of those deaths—about three quarters—were in the period from 2020, so there has been a significant increase. By August this year, nearly as many people had died in the asylum system as in the whole of last year.

The first issue is why it is only through the work of Da’aro Youth Project, the Scottish Refugee Council and Liberty Investigates that we know this. Surely the Home Office should be reporting regularly on the deaths of those in its system. Can lessons be learned from these deaths, what could be done to prevent further deaths, and do the deaths have implications for broader policy? For example, there has been a significant increase in deaths over the past couple of years, suggesting that moving to institutional accommodation is a dangerous policy, but are there other reasons? What about new policies, including those in this Bill? What impact might they have on deaths in the asylum and immigration system? We cannot do very much of that analysis because it does not seem that the Home Office gathers information never mind publishes it. Which other Government Department would get away with it if deaths of those in its care and caught up in its processes were not being thoroughly investigated and responded to? It should be absolutely no different here.

The second issue is: what happens in response to every individual death? I am not even sure whether there is in existence a proper Home Office policy on this. Is any effort made to find and contact family members, or even to return the body to the family? What is done to support friends and family here in the UK, particularly those who are in the asylum system or local authority care?

Since Windrush, we have been told repeatedly that the Home Office is undergoing a culture change to see “the face behind the case”. I suggest that a vital starting place could be taking much greater interest in those who have lost their life while within the Home Office’s own asylum and immigration systems and being transparent and accountable about what has happened. The new clause simply asks for what really should have been happening for years. It is a simple matter of human decency and proper accountability.

[Tom Pursglove]

I thank the hon. Member for tabling the new clause. I note his concerns around transparency and accountability in relation to deaths of people subject to immigration powers. I can assure him that transparency and accountability remain a key priority for the Department. We currently publish data every year on the number of deaths of people under our care in immigration detention. I recognise the importance of transparency in these circumstances to ensure that there is accountability and that we can develop effective policies and processes to prevent such instances from occurring in future. One death of a person in our care in one death too many. We must do everything in our power to ensure that these do not occur. Thankfully, deaths in detention are rare. There were no deaths in detention in 2020 and just one in 2019, where the individual died of natural causes.

We regularly review the statistics that we publish as a Department and, where it is clearly in the public interest to do so, it is our duty to consider the feasibility of publishing new statistics. We must weigh that up against other considerations. While we have a duty of care to all of those in our remit, there are many people in the asylum and immigration system who are either not required to, or choose not to, maintain regular contact with us. Some may even leave the UK without informing us while they have an open immigration claim. That means that there may be instances where we are not informed of the person’s death or we do not have all the relevant facts.

Additionally, it can take months and even years for inquests to reach conclusions. It is important that we know the facts before we publish the information. This highlights the kind of practical and deliverability challenges that we face and which affect the scope and accuracy of any information in this space. However, I acknowledge the importance of transparency. We regularly review the information that is published by the Department on the context of transparency, but also in line with the changes that the Bill will bring about. I note the interest of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in this particular area and will ensure that it is considered in line with the wider and ongoing review of statistics published by the Department. I trust that that addresses his concerns and I encourage him to withdraw the new clause.

[Stuart C. McDonald]

I appreciate the Minister’s answer and the sentiments that he expresses. I am concerned that what he says does not always necessarily reflect exactly how things are operating on the ground. On the gathering and publishing of information, that is something that we will watch very closely. What he has not done is set out anything in relation to how the Home Office responds and whether there is a policy in relation to individual deaths—for example, those issues around returning the body, trying to approach family and friends, and the duty of care that we have to those individuals as well. That is something I will need to return to and raise with him again. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 14

Immigration health surcharge: exemption for international volunteers

‘(1) The Immigration Act 2014 is amended as follows.

(2) After section 38, insert—

“38A Immigration health surcharge: exemption for international volunteers

(1) A charge under section 38 may not be imposed on persons who have leave to enter, or to remain in, the United Kingdom through a visa to work voluntarily for a period of no more than 12 months, or for such period as may be prescribed by regulations, for a registered UK charity advancing the charity’s primary purpose.

(2) A statutory instrument containing regulations under this section must not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.’ . —(Stuart C. McDonald.)

This new clause would ensure that international volunteers, including those working in health and social care, will be exempt from paying the immigration health surcharge.

Brought up, and read the First time.

[Stuart C. McDonald]

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

The new clause would introduce an immigration health surcharge exemption for international volunteers. On this occasion, I am particularly indebted to Camphill Scotland, which does fantastic work to support around 600 people with learning disabilities and other support needs, ranging from children to older people. It has built a formidable alliance of almost 50 organisations across the UK that support this new clause, including the National Council for Voluntary Organisations, the Scottish Council for Voluntary Organisations, the Northern Ireland Council for Voluntary Action, the Wales Council for Voluntary Action and many, many more which, unfortunately, I do not have time to mention. All members of the Committee will have received briefings and representations directly on this issue, and I urge them to consider it carefully.

My party objects to the immigration health surcharge altogether, but that debate is for another day. What we do welcome, as do the organisations behind this new clause, is the Government’s decision to exempt health and social care workers from other countries from paying it. The new clause seeks to ensure that those who want to come to work as volunteers in the charitable sector, including in health and social care, are also exempt. We believe that charging this surcharge to volunteers working in health and social care in charitable settings is unfair, inequitable and counterproductive. Volunteers from the EU and beyond make a significant contribution to the work of charities across the UK; Camphill Scotland currently has about 215 international volunteers, helping it to support people with learning disabilities and other support needs.

These young people have chosen to stay in the UK to provide social care to UK citizens during a national health emergency, displaying considerable dedication to and compassion for the people they support. It would be an injustice if the immigration health surcharge exemption was not extended to international volunteers working in the charitable sector. It is all the more essential that this change is made post Brexit, with volunteers from the EU and Switzerland now being caught by visa fees and other expenses. If we cannot continue to attract volunteers, the people who will suffer will be those who benefit from their care, including those with learning disabilities and support needs in the care of Camphill Scotland. The logic of the Government’s immigration health surcharge is that everyone should contribute but, just like the health and social care workforce, the volunteers are already doing just that, so surely the same logic applies. Given that such volunteers cannot have a salary here and will receive a subsistence allowance at most, there is even more reason to exempt them altogether. They are already facing considerable costs to take up these posts. It cannot be right that we also charge them a surcharge to support the very system that they are currently voluntarily supporting. I therefore ask the Minister to consider the representations made by the almost 50 organisations that have contacted him, to consider meeting them and to look carefully at these proposals.

[Tom Pursglove]

The Government recognise the important contribution that international volunteers make to our communities, and are committed to attracting people from overseas who wish to gain experience of our voluntary sector. The temporary work-charity worker visa is available to those who wish to undertake unpaid voluntary fieldwork for up to 12 months, where the work contributes directly to the achievement or advancement of the sponsor’s charitable purpose. The route offers volunteers the chance to experience life in the UK while making a valuable contribution to the aims of their chosen charity. At the same time, the involvement and contribution of these individuals has benefits for the UK charity sector and the wider community, and the UK Government welcome this involvement.

This is not an economic route and it should not be used to fill gaps in the labour market. Volunteers using the charity worker visa must not receive any payment beyond being reimbursed for expenses incurred during their duties. It is therefore not unreasonable to expect costs to be considered and planned for before they apply for a visa. As this is a temporary work category, the cost of a visa is already significantly less than any other work and study routes, at a rate of £244, and sponsors pay a lower licence fee, which reflects their own charity status. The immigration health charge, which applies to this route, ensures that temporary migrants who come to the UK for more than six months make a direct contribution to the comprehensive range of NHS services available to them during their stay. Income from the charge is shared between the health administrations in England, Scotland, Wales and Northern Ireland, using the formula devised by Lord Barnett. The charge is an essential part of income for the NHS and has raised almost £2 billion in much-needed income since it was introduced in 2015.

Those who make an application to come to the UK for six months or less do not pay the charge, and we know that a sizeable number of volunteers come for less than the 12 months the route allows. If they opt to stay longer than six months, however, it is right that they pay the charge, as is consistent with others who base themselves in the UK for extended periods. I understand that there are concerns about the financial impact of the charge on volunteer workers, alongside visa fees and other payments that a person may make when they choose to come to the UK. However, the Government are clear that the charge is great value, considering the wide range of NHS services, free at the point of use, for charge payers. From the moment they arrive in the UK, charge payers can use the NHS in broadly the same manner as a permanent resident, without having made any prior tax or national insurance contributions. They may access health services as often as they need, including treatment for pre-existing health conditions, and do not need to worry about unexpected health charges or obtaining appropriate health insurance.

[Stuart C. McDonald]

The Minister knows that I do not support the idea of an additional surcharge but, even if we accept his logic, the Government have exempted health and social care workers from the surcharge because they contribute to the healthcare system. Should that same logic not apply even more so to volunteers who are working in the health and social care system?

[Tom Pursglove]

In relation to the approach taken for health and social workers, the view widely felt across the House, which was subsequently reflected in policy, was that, given the enormous contribution made by those working directly in this sector during the pandemic, it was appropriate to try and put in place a form of recognition of that work, as well as other measures we have talked about, for example the pay rises that have quite rightly been afforded to NHS workers. It was seen as one means of recognising the enormous contribution that some of those who had come from overseas to work in our health and social care settings had made and rewarding them for that. There were particular circumstances that meant that it was felt that that was appropriate.

Charge payers pay only those charges a UK resident would pay, such as prescription charges in England. They may, however, be charged for assisted conception services in England, should they wish to use them. We welcome talented individuals to the UK and are immensely grateful to them for the important contributions they make, but if a person chooses to come to the UK as a worker, student, family member or volunteer, it is fair and reasonable to expect them to contribute to the high-quality NHS services available to them.

It is vital, particularly given the challenges posed by the pandemic, for the NHS to continue to be properly funded. The immigration health charge directly benefits the NHS and plays an important role in supporting its long-term sustainability. The Government are confident that the charity worker visa provides an attractive offer to voluntary workers. Individuals on some other routes can also volunteer their time to help others, and, depending on the route, they either pay the immigration health charge or may be charged by the NHS for their healthcare.

The youth mobility scheme, for example, is subject to the charge. Those on this route are free to take up work in any sector, paid or unpaid. The standard visitor visa allows people to volunteer for up to 30 days with a registered charity. The visit rules allow visitors to stay for a maximum of six months, which means that they are not subject to the immigration health charge but may instead be charged for NHS care, in line with the rules set by the relevant, devolved health administration.

The Government believe that it is right for the health charge to apply to the charity worker visa. Many nations expect newly arrived individuals to contribute, in some form, to the cost of healthcare. It is right we do the same. For the reasons I have set out, I ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the new clause, but I take on board the passion with which he made his case in relation to this issue and the various representations he referred to that have been made to me as Minister with responsibility for this Bill. I will certainly ensure that they are shared with the Minister with responsibility for this area of policy in the Department as part of their consideration of these matters.

[Stuart C. McDonald]

I am grateful to the Minister for his response and those assurances. He is quite right about the reasons for the recognition that was given to health and social care staff. We are just calling for the same recognition for volunteers as well. I would be interested to know more. I get the impression that this would be a tiny hit for the Treasury, but it could have real benefit for charities. Before we think about that and make the case again before we reach Report stage, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 17

Duty regarding rights to British citizenship or British overseas territories citizenship

“(1) It is the duty of the Secretary of State to encourage, promote and facilitate awareness and exercise of rights to British citizenship or British overseas territories citizenship among persons possessing these rights.

(2) In fulfilment of that duty, the Secretary of State—

(a) must take all reasonable steps to ensure that all persons with rights to British citizenship or British overseas territories citizenship are able to exercise those rights;

(b) must make arrangements, including with local authorities, to ensure that all children in a local authority area are aware of their rights to British citizenship or British overseas territories citizenship and of the means by which to exercise those rights;

(c) must, when considering any application for confirmation or registration of British citizenship or British overseas territories citizenship, have regard to information held by or available to the Secretary of State that would demonstrate the applicant to be a British citizen or British overseas territories citizen or entitled to that citizenship; and

(d) shall have, and where reasonably necessary to ensure that all persons are able to exercise those rights shall exercise, the power to waive any requirement to attend a ceremony or in connection with biometric information.

(3) For the purposes of this section—

“rights to British citizenship” means rights of acquisition of British citizenship by birth, adoption, commencement or registration under the British Nationality Act 1981;

“rights to British overseas territories citizenship” means rights of acquisition of British overseas territories citizenship by birth, adoption, commencement or registration under the British Nationality Act 1981; and

“to exercise those rights” means to be registered as a British citizen or British overseas territories citizen on the making of an application under the British Nationality Act 1981 or to obtain documentation from the Secretary of State confirming British citizenship or British overseas territories citizenship (including by receipt of a passport) on the making of an application to the Secretary of State.”—(Stuart C. McDonald.)

This new Clause would require the Government to encourage, promote and facilitate awareness and exercise of rights to British citizenship or British overseas territories citizenship.

Brought up, and read the First time.

[Stuart C. McDonald]

I beg to move, That the clause be read a Second time. The new clause would place on the Government an obligation and a duty to undertake promotion of British citizenship rights and British overseas territories citizenship rights.

If there is one thing that members of the Committee can all agree on, it is that nationality law is complicated, and British nationality law is particularly complicated. As I have said, nationality law is also absolutely fundamental to people’s identity, and their ability to fulfil their potential and to exercise so many other rights. That is why it is enshrined in the UN convention itself. It is much superior to any form of immigration leave, which is no form of substitute for holding nationality. The very need for the Bill indicates, however, that lots of people miss out on their entitlements. That is terrible for them as individuals, and it is terrible for the country as a whole—bad for social cohesion—if people are missing out on rights of citizenship that they could have and that are set out in law.

An example is looked-after children. During the registration process for the EU settlement scheme, it was clear that a number of local authorities might have been signing children up for EU settled status when in actual fact they were probably entitled to register as British citizens. The new clause therefore simply calls for the Government to take a more proactive approach and to work with organisations such as local authorities and others to ensure that as many people as possible are aware of and know about their right to register or to access citizenship in other ways, so empowering them to do so.

One welcome thing about the EU settlement scheme was that the Home Office caseworkers did not say, “This or that is missing, so I am going to refuse the application.” There was a concerted attempt to work with people to ensure that all the necessary evidence was found. A lot of the time, the Government took it on themselves—by liaising between Departments—to track down the necessary evidence to allow that person to achieve the status to which they were entitled. We call for the same approach on the more fundamental right to nationality.

That is the reasoning behind the new clause. I look forward to the Minister’s response.

[Tom Pursglove]

I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for their new clause. I understand their thinking behind it: people who are entitled to citizenship should be able to find the information that they need and that the process should be simple and straightforward. That is a sentiment I would echo.

The measures the new clause proposes represent best practice, much of which already exists in the nationality and passport processes. For example, both UK Visas and Immigration and Her Majesty’s Passport Office publish information and guidance on gov.uk, and use information that is already available on their systems when processing applications. As part of considering Windrush applications in particular, UKVI caseworkers have demonstrated a proactive approach, helping people to locate the information needed and consulting internal sources.

The existing legislation already contains discretion to excuse or exempt a person from attending a citizenship ceremony or to enrol their biometrics. The Home Secretary can disapply the requirement to attend a ceremony in the special circumstances of a case and, if it would be too difficult for an applicant to enrol their biometrics in the form of a facial image and fingerprints, an authorised person such as an official acting on behalf of the Secretary of State can defer or waive the requirement to enrol some or all of the biometrics. I am happy to listen to the thoughts of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East about the areas where we could do more.

I do not think that we can accept the new clause, however. It would impose a statutory requirement that I am not sure is measurable. For example, while we could take steps to ensure that local authorities have information about citizenship and are encouraged to pass on that information to children in their area, I do not see that we could fulfil a statutory requirement to ensure an awareness for every child—that would be outside our control.

Similarly, the new clause is not specific about the steps that the Home Secretary would be expected to take—the lengths she would be expected to go to, for example, to obtain “available” information when considering an application, without being in breach of such a statutory duty. I take on board the sentiment of what the hon. Gentleman is trying to achieve, but I ask him to withdraw his new clause.

[Stuart C. McDonald]

I am grateful to the Minister for his reply and for his constructive approach to the issue. Perhaps we may continue the conversation in the weeks and months ahead. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 23

Safe and legal routes

“(1) The Secretary of State must, within 30 days of the date of Royal Assent to this Act and annually thereafter, publish a report on—

(a) all current safe and legal asylum routes to the United Kingdom,

(b) the eligibility criteria for legal entry into the United Kingdom, and

(c) details of the application process.

(2) The Secretary of State must publish a report on its resettlement target of refugees per year, and report on this every year.”— (Paul Blomfield.)

This new clause would require the Secretary of State to publish a summary of safe and legal routes to refuge in the UK each year, alongside their eligibility criteria and application process. It would also commit the UK and Secretary of State to publishing its resettlement targets, and reporting on this annually.

Brought up, and read the First time.

--- Later in debate ---

[Tom Pursglove]

On the issue of safe routes for children, unaccompanied asylum-seeking children in Europe with family members in the UK are able to apply to join eligible sponsors, such as those with refugee leave or British settled status. The immigration rules make provision for children to be reunited with their parents. Paragraphs 319 and 297 of the immigration rules are extremely flexible and allow for children to apply to join adult family members if requirements are met, and if there are serious or compelling reasons that make the exclusion of a child undesirable and suitable arrangements are needed for a child’s care. Again, these matters are considered on a case-by-case basis, taking proper account of all the circumstances at play.

Let me finish the point that I was making before I took the interventions. Under the family reunion policy, we have granted reunion to over 37,000 partners and children of those granted protection in the UK since 2015; that is more than 5,000 a year. Our policy makes it clear that there is discretion to grant visas outside the immigration rules that caters for extended family members in exceptional and compassionate circumstances—for example, young adult sons or daughters who are dependent on family here and who are living in dangerous situations. Refugees can also sponsor adult dependent relatives living overseas to join them, when, due to age, illness or disability, that person requires long-term personal care that can only be provided by relatives in the UK.

[Stuart C. McDonald]

I suggest the Minister goes away and does some investigations into just how frequently these types of application are granted. My recollection is that some of the thresholds are so high—exceptional and compassionate circumstances, and so on—that in reality, it is almost impossible for some of these applications to be successful. I do not think it is an answer at all to what the hon. Member for Sheffield Central is advocating.

--- Later in debate ---

[Tom Pursglove]

I agree with the hon. Gentleman that it is imperative that we think carefully about the issue. Expanding our family reunion policy as proposed by the new clause would significantly increase the number of people who would qualify to come here and to seek protection. Indeed, the new clause is global in scope, meaning that any asylum seeker in the world with extended family in the UK could qualify to claim asylum. That could easily run to the hundreds of thousands.

To give just one example of how that could have challenging consequences, foreign nationals already illegally present in the UK could potentially be incentivised to claim asylum to circumvent immigration rules in order to bring their family over. We need to ensure that our limited resources are focused on helping refugees who are in the UK to reunite and integrate with immediate pre-flight family. We have a proud record of helping those facing persecution, oppression and tyranny, and we stand by our moral and legal obligations to help innocent civilians fleeing cruelty from around the world, but we cannot help all the people displaced worldwide and who want to come to the UK.

Allowing extended family members to come to the UK for the purpose of claiming protection under new clause 47 might simply create further incentives for more adults and children to be encouraged—even forced—to leave their family and risk hazardous journeys to the UK in order to later sponsor qualifying extended family. That plays into the hands of criminal gangs who exploit vulnerable people and goes against the main intention of the Bill. We must do everything in our power to stop that dangerous trend. The new clause would also result in chain migration, where granting entry to each family member has the potential to bring in even greater numbers of their family members to claim protection under the rules. That is simply not sustainable.

We recognise, however, that families can become fragmented because of the nature of conflict and persecution, as well as the speed and manner in which those seeking protection are often forced to flee their own country. That is why the Government strongly support the principle of family unity. We already have a comprehensive framework for families to be reunited here safely. I will add, because this will be of interest to both Government and Opposition Members, that we are committed to reviewing the family refugee reunion rules, as we set out in the new plan for immigration. At all times, as the Committee would expect, we will be fully compliant with our international obligations.

Given that and the issues raised in Committee, everything will be taken into account when looking at the policy.

[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.

--- Later in debate ---

[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?

[Tom Pursglove]

Our immigration system must encourage compliance with immigration rules and protect the public. Electronic monitoring of foreign national offenders using satellite tracking devices was a Government manifesto commitment, which the public voted for, and the measure which enacts it was passed into primary legislation under the Immigration Act 2016. It has already been subject to parliamentary scrutiny and debate during the passage of the 2016 Act.

Electronic monitoring is a condition of immigration bail. During the debate on the Immigration Act 2016, it was open to Parliament to set a limit on how long a person can be made subject to electronic monitoring, but it chose not to do so. However, I want to be clear that a person’s electronic monitoring conditions are already automatically reviewed on a quarterly basis as a minimum. Compliance with bail conditions, including electronic monitoring, will be a major factor in deciding whether it will remain a condition of that person’s bail. Any representations regarding the person’s electronic monitoring conditions or a breach of those conditions will also generate a review.

Prior to being placed on electronic monitoring when released, a person is given an opportunity to advise the Department as to why electronic monitoring may not be appropriate for them. That includes where there is strong evidence to suggest that an electronic monitoring condition would cause serious harm to the person’s health. A person can also make representations at any point while wearing a tag and those representations will be considered promptly.

Currently, there is a duty on the Secretary of State to consider electronic monitoring for those who are subject to a deportation order or deportation proceedings, known as “the duty”. The proposed clause makes the consideration of imposing an electronic monitoring condition discretionary. However, there is already a caveat within current legislation that electronic monitoring will not be applied to a person who is subject to the duty where its imposition would be impractical or contrary to the person’s convention rights. The proposal to remove the compulsory consideration of electronic monitoring for all those subject to the duty could lead to a scenario where serious offenders who should be electronically monitored are not considered for electronic monitoring and are granted bail without that condition.

I turn to the new clause’s reference to the use of data. Any data that is gathered from the devices will be processed automatically and will not be routinely monitored by the Department. We have undertaken a data protection impact assessment in relation to the introduction of GPS tagging, which sets out the specific permitted circumstances where data can be accessed, and any access outside those circumstances is considered a data breach. Those who are subject to electronic monitoring are made aware of the circumstances as to when their data can be accessed during the induction process.

Restricting the data in the way the new clause sets out will impact on the ability to use data to try to locate a person after it has been identified that they have breached their immigration bail conditions and are viewed as an absconder. The inability to share data with other law enforcement agencies where a lawful request had been made would be out of alignment with the agreement on sharing data for the purposes of preventing or solving crime. In the broadest terms, only knowing that a person had breached their bail conditions and not being able to use the data for any other purpose would greatly limit the efficacy of electronic monitoring.

I do not consider that the new clause would have the effect that hon. Members intend. Rather, it would impair our ability to monitor and deport those who had committed crimes and were not entitled to remain in the UK. Foreign criminals should be in no doubt of our determination to deport them. We make no apology for keeping the public safe and clamping down on those who have no right to be in the UK.

In summary, the restriction of the use of electronic monitoring as proposed in new clause 53 would significantly impair our ability efficiently to remove foreign national offenders who have no right to be here. I am conscious that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East raised a number of questions at the outset. I have covered quite a lot of ground, but if there are any matters that he feels I have not addressed and he would like to follow up, I of course invite him to please do so.

[Stuart C. McDonald]

I am grateful to the Minister for that response. I will have a look through everything that has been said and consider whether any follow-up is necessary. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 54

Instructions to the Migration Advisory Committee

“Within two months of this Act coming into force, the Secretary of State must instruct the Migration Advisory Committee to undertake the following work—

(a) a review of the minimum income requirements for leave to enter and remain as a family member of persons who are British citizens or settled in the United Kingdom;

(b) a report making detailed recommendations on the design of a work visa for remote areas.”—(Stuart C. McDonald.)

This new clause would require the Secretary of State to seek further advice in order to take forward certain recommendations made by the Migration Advisory Committee in recent reports.

Brought up, and read the First time.

--- Later in debate ---

[Tom Pursglove]

I thank the hon. Gentleman for the way in which he has gone about his work during the course of proceedings, and for pursuing a number of angles with great tenacity and vigour.

The Migration Advisory Committee is an independent, non-statutory, non-time limited, non-departmental public body that advises the Government on migration issues. The minimum income requirement was implemented in July 2012, following advice from the MAC and has not changed since its introduction. We will consider whether to commission the MAC to review the minimum income requirement within the next three months.

In addition, the MAC considered the issue of work visas for remote areas in is January 2020 report, “A Points-Based System and Salary Thresholds for Immigration”. The MAC recommended a pilot for remote visas, but the Government did not accept this. The UK has a single, flexible immigration system that works for the entirety of the UK. Applying different immigration rules to different parts of the UK would overly complicate the immigration system and would cause significant difficulties for employers who need the flexibility to deploy their staff across the UK. As the MAC itself has said, when considering sustaining remote communities we need to consider why people leave these areas. This is more important than bolstering local communities with migration. I therefore do not consider re-reviewing this issue to be a good use of the MAC’s time or public money.

It is not appropriate to put an amendment such as new clause 54 into primary legislation, as the commissioning of the MAC is done on a priority basis. The Secretary of State retains the power to change the topics, which the MAC reviews at short notice, if a more pressing matter becomes a priority. The Secretary of State should be able to respond flexibly to any new priorities. For those reasons, I encourage the hon. Member to withdraw his new clause.

[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 Tom Pursglove and Stuart C McDonald

Committee stage
Thursday 4th November 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)]

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

The new clause would be inserted after clause 21. It forms part of a package of measures that will enable the swift removal of those who have no right to be in the UK. It complements clause 21 by ensuring that individuals cannot utilise the appeals system as a tool to delay their removal from the UK.

Frequently, those facing removal or deportation from the UK utilise delay tactics, such as late claims and repeated appeals, to thwart removal action. That leads to unnecessary costs to the taxpayer and an increased burden on the court and tribunals system. Clause 21 addresses that issue by creating a new expedited appeal for late human rights or protection claims brought by recipients of a priority removal notice, as provided by clause 18. Expedited appeals will be determined quickly, and the decisions of the upper tribunal will be final. Therefore, clause 21 removes the incentive for bringing claims late and protects the appeal system from abuse.

However, there may be additional appeal rights generated by other claims that individuals may seek to exercise in parallel with an expedited appeal. Such additional appeals would usually be heard in the first tier tribunal. Consequently, an expedited appeal may conclude while an individual has an outstanding appeal in the first tier tribunal, which would prevent their removal from the UK.

New clause 6 enables other appeals in the first tier tribunal brought by a person with an expedited appeal to be heard and determined by the upper tribunal alongside the expedited appeal. That will ensure that, following the conclusion of the expedited process, final determination will have been made on the appellant’s right to remain in the UK and, where the upper tribunal decides that they have no right to remain, removal action can take place.

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

I welcome the Minister back to his place. I do not follow the logic of the new clause at all. If somebody is trying to play the system—and I do not like talking in those terms—surely all they need to do is not make a late claim in terms of the PRN notice; then, their existing appeal would proceed normally, with onward rights of appeal and so on. This proposal just does not make sense, even if we accept the Government’s logic, which I do not.

[Tom Pursglove]

The point is exactly as I have set out: in the immigration system, we see repeated appeals deliberately designed to frustrate the system, and the new clause is an appropriate way, with appropriate safeguards, to ensure that the tribunal process can handle those appeals appropriately. It makes sense for appeals to be considered together so that attempts to frustrate the removal process cannot happen and cases are determined as quickly as possible. As I say, there are appropriate judicial safeguards in place in the tribunal process to ensure that appeals are heard appropriately and are directed through the appropriate tribunal. I commend the new clause to the Committee.

[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 have said a lot about asylum accommodation in previous years and months. I agree that there are huge problems with the asylum accommodation system, such as over-concentration, too often poor-quality accommodation, a lack of funding for the local authorities that actually step up to the plate and volunteer to undertake the task, and a lack of control and power for those local authorities. Too often they play second fiddle to the companies and organisations contracted to the Government.

I support broadening dispersal, but I am not on board at this stage with mandating it. Repeatedly, local authorities, whether in the west midlands, Glasgow or elsewhere, and other organisations such as the Home Affairs Committee, on which I sit—we have had a couple of reports on this issue—have listed all the things that the Home Office could engage with and undertake to improve the system. I know from speaking to authorities that if the Home Office did those things and increased the powers and financing of local authorities, more would come on board. If the Home Office did that, I do not think that mandation would be required.

If the Home Office fixes its end of the bargain and local authorities are still not getting on board, at that stage I would have no choice but to support mandation, but I do not think that we are at that stage yet. I, too, will quote Abi Brown, who was very measured in her comments when local authorities from the west midlands were writing to the Home Office. She said:

“This is about trying to open up a discussion about how the asylum dispersal system works. So far it’s been very frustrating trying to get the Home Office to engage with us on this issue. We want them to talk to us about how the system can be improved, and we’ve made a number of suggestions in the letter.”

She went on to say:

“This isn’t about party politics, it’s about parity.”

I absolutely agree with that. There is a growing consensus that the Home Office has to up its game on how the dispersal system works. That is what we have to look at, rather than mandating local authorities.

[Tom Pursglove]

I agree with some of the intention behind new clause 2. It is right that all parts of the UK make a reasonable contribution to ensuring that adequate accommodation is available for asylum seekers who would otherwise be destitute, but it is important to recognise that not every area of the UK has appropriate services or affordable accommodation to appropriately support them. Additionally, some local authorities have very few asylum seekers accommodated by the Home Office in their areas but support large numbers of other migrants. For example, the Home Office does not accommodate many adult asylum seekers and their children in Kent or Croydon, but both local authorities support large numbers of unaccompanied asylum-seeking children.

It is also important to note that not all asylum seekers are accommodated by the Home Office. The proportion varies over time, but historically around 50% find accommodation with friends or family. That group often live in areas where there are few supported asylum seekers, but they still require access to the same health and education services. It is not therefore sensible to have a rigid set of rules that require destitute asylum seekers to be accommodated in areas in direct proportion to the population of those places. The other factors that I have described must be taken into consideration.

Since the introduction of part 6 of the Immigration and Asylum Act 1999, successive Governments have employed a policy of seeking the agreement of local authorities prior to placing asylum seekers within an area. However, the legislation does not provide local authorities with a veto on the placement of asylum seekers in their areas. If a local authority objects to proposals by our providers to use accommodation not previously used to house asylum seekers, the Home Office can consider and adjudicate on the matter.

A lot of work has none the less been done on increasing local authority participation in asylum dispersal since 2015. Prior to 2015, there were around only 100 local authorities participating. There are now around 140. We have established the local government chief executive group to bring together senior representatives from local authorities, with the aim of expanding the dispersal system and improving the process for the people who use it. We are planning a wider review of the dispersal process and will be consulting local authorities and others.

The local government chief executive group is working collaboratively to evidence any additional costs to local authorities by the dispersal proposal and to identify the appropriate funding mechanism. In light of what I have said, I hope that the hon. Member for Enfield, Southgate will withdraw the motion.

--- Later in debate ---

[Stuart C. McDonald]

It is useful that guidance exists, but does the Minister appreciate that if somebody is considering spending more than £1,000 to make an application and there is no clarity—nothing stronger—they almost certainly will not take the risk? Is it not possible to put something firmer into the guidance for caseworkers to say that, in the overwhelming majority of cases, the lack of CSI should be ignored?

[Tom Pursglove]

The hon. Gentleman will appreciate that this matter falls within the portfolio of the Minister for Future Borders and Immigration, so if the hon. Gentleman does not mind, I shall take away that suggestion and ask the Minister to consider it. If the hon. Gentleman wants to follow up in writing with the Minister, I am sure my hon. Friend would consider that and come back to him. I will certainly make sure that he is aware of the suggestion the hon. Gentleman raises.

The new clause would amend the naturalisation requirements for EEA nationals who did not have CSI and so had not been in the UK lawfully before they acquired settled status. We cannot accept that, as all applicants are required to meet the same requirements for naturalisation in terms of lawful residence and it would not be right to treat certain nationalities differently.

The third part of the new clause would amend the European Union (Withdrawal Agreement) Act 2020 such that a person is treated as having had CSI if they had access to the NHS in practice or held a CSI policy. However, there is no mention of CSI in the rest of that Act, nor is there any mention of CSI in residence scheme immigration rules. The EU settlement scheme does not test for CSI and there is no need to have held it in the past, or to hold it now, in order for EEA nationals to obtain settled or pre-settled status. As such, that part of the new clause would have no practical effect. I therefore ask the hon. Members to withdraw their new clause.

--- Later in debate ---

[Stuart C. McDonald]

I would just gently say that the response is slightly tone deaf. First, the Migration Advisory Committee has asked the Government to revisit the financial thresholds the Minister mentions. Secondly, we are talking about Chagossians who were forcibly removed from their islands. Consistency is fine, but these are truly exceptional circumstances. Surely most taxpayers would perfectly understand that different rules have to apply in these outrageous circumstances.

[Tom Pursglove]

In fairness, the hon. Gentleman has intervened early in my remarks on the new clauses. Let me continue, but I hear the point he raises, and I of course take it on board, in the way I take all comments from hon. Members on the Committee on board.

We expect those coming to the UK on a family visa with only basic English to become more fluent over time, as a means of encouraging better integration into our society, to make it easier for families to access vital public services and to enable parents to support their children’s education.

New clause 4 would undermine the sound basis on which family migration to this country has been placed in recent years. It would circumvent the need for family migration to be on a basis whereby families are financially independent and able to contribute to the UK. It would also remove the English language requirement, which is fundamental to a migrant’s successful integration into British society. There is no justifiable reason to give preferential treatment to family members based solely on their sponsor’s nationality. Without a clear justification for doing so, that would also likely constitute unlawful discrimination.

The immigration rules on family migration, which new clause 4 would undermine, are designed to prevent burdens on the taxpayer, promote integration and tackle abuse, and thereby ensure that family migration to the UK is on a properly sustainable basis that is fair to migrants and the wider community. The rules are helping to ensure public confidence in the immigration system and, well intended as the new clause may be, it has the potential to reverse that.

In the same way, the introduction of a dual family migration system as required by the new clause would not be seen in a uniformly positive way by British citizens and persons settled here. It would lead to an undesirable two-tier system of family migration in which a group of family members whose sponsor is a British citizen with a connection to the British Indian Ocean Territory would be given preferential treatment over other sponsors. Furthermore, the Government have the power under the Immigration Act 1971 to set out the requirements for entry into and stay in the UK in immigration rules, which are laid before Parliament. The rules allow flexibility to amend policy as appropriate, and the Government continue to review them regularly to ensure that they are fair and effective. Work is ongoing on simplification of the rules following the Law Commission’s recommendations. The new clause would have the effect of undermining that process and prescribing the rules in primary legislation for one particular cohort.

I turn to new clause 15. We are already making changes through the Bill to address historic unfairness so that all those born on the British Indian Ocean Territory and their children are either automatically British citizens or have the right to acquire British nationality. The new clause, tabled by the hon. Members for Enfield, Southgate and for Halifax, seeks to go much further and would address what is seen as the consequences of historic unfairness. Although I am sympathetic with the aim, I am concerned that that is not the correct approach. The new clause would offer British citizenship in perpetuity to those born outside the UK and overseas territories regardless of their connection to the UK as long as they are descendants of someone born on the islands making up the British Indian Ocean Territory.

[Stuart C. McDonald]

I am not entirely surprised that the Minister’s first point is about the lack of any limit. Would the new clause be more amenable to him if there was a limit on the degree of relationship there had to be with a Chagossian?

[Tom Pursglove]

If the hon. Gentleman lets me conclude my remarks, I hope that that will give him a little comfort on that point. The approach proposed by the new clause cannot be right and would undermine the long-standing principle of British nationality law that nationality or entitlements to nationality are not passed on to the second and subsequent generations born and settled outside the UK and territories.

I recognise, however, that the Chagossians present a unique case. My hon. Friend the Member for Crawley, who has long campaigned on behalf of the Chagossian communities both in his constituency and throughout the UK as vice chair of the Chagos islands (British Indian Ocean Territory) all-party parliamentary group, has indicated his intention to table an amendment on this issue on Report. I would like to reflect further on the complex issues faced by Chagossian communities in the UK and those in Mauritius and the Seychelles that have been raised by hon. Members on both sides of the Committee—I am mindful of the cross-party view—before making any significant changes to nationality law.

Hon. Members from different parties have expressed views, and I have taken on board the points raised. I say to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that there is a willingness to look closely at the Chagossian issue. With that, I hope that hon. Members will be willing not to move their new clauses.

[Stuart C. McDonald]

As the Minister said, we will consider what has been said before we revisit this issue on Report. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

Former British-Hong Kong service personnel: right of abode

‘(1) The Immigration Act 1971 is amended as follows.

(2) At the end of section 2(1) insert—

“(c) that person is a former member of the Hong Kong Military Service Corps or the Hong Kong Royal Naval service, or

(d) that person is the spouse or dependent of a former member of the Hong Kong Military Service Corps or the Hong Kong Royal Naval service.’—(Stuart C. McDonald.)

This new clause would mean that all former British-Hong Kong service personnel, plus their spouses and dependents, would have right of abode in the UK.

Brought up, and read the First time.

Nationality and Borders Bill (Eleventh sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Tom Pursglove]

Amendment 110 will add to the other offences in the clause the additional offence of knowingly arriving in the UK without an electronic travel authorisation where that is required. The current offence of knowingly entering the UK in breach of a deportation order or without leave dates back to the Immigration Act 1971, and is no longer considered entirely apt, given the changes in ways that people seek to come to the UK through irregular routes, and in particular the use of small boats.

Many of the individuals involved are intercepted in UK territorial seas and brought to the UK. They arrive in, but may not technically enter, the UK. However, we need to deter migrants from risking their lives and those of their families by taking such dangerous routes to the UK, and to take back control of our borders. We are committed to strengthening our border security by ensuring that everyone wishing to travel to the UK, except British and Irish citizens, seeks permission to do so before travelling.

The clause introduces new arrival offences to deal with the issue. I reassure the Committee that we do not seek to criminalise genuine refugees who come to the UK to seek asylum, but safe and legal routes can be used for that purpose, without risking lives.

Government amendments 111 to 117 and 125 are consequential amendments; they ensure that where the clause and schedule 5 cross-reference to the offence of arrival in the UK without the required entry clearance, they also refer to the new offence.

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

The Minister has slightly skirted over the most fundamental point in all this, which is that lots of refugees who come to seek asylum in this country will be criminalised by the provision—a good 60% or 70%, even according to the Home Office’s explanatory memorandum. How can he possibly feel comfortable about criminalising them through an offence that could see them imprisoned for up to four years?

[Tom Pursglove]

Clearly, any such cases would be referred to the Crown Prosecution Service or the relevant prosecuting authorities. They must make a judgment as to whether it is in the public interest to pursue such a prosecution. I will say more about that in due course, but it is important to highlight that point.

--- Later in debate ---

[Tom Pursglove]

As I said—I will come on to this in more detail—it is for the prosecuting authorities to decide whether it is in the public interest to pursue a particular case.

On amendment 188, I reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that consideration of the issues he has listed is already taking place. I fully recognise that, while immigration offences are a reserved matter, the devolved Administrations in Scotland and Northern Ireland have responsibility for their criminal justice systems, and decisions on prosecutions are independently taken by the Crown Office and Procurator Fiscal Service in Scotland and the Public Prosecution Service in Northern Ireland.

My officials have been in contact with the Scottish Government criminal justice division, the Crown Office and Procurator Fiscal Service and the Department of Justice Northern Ireland, and have shared information about potential impacts and costings. The amendment would add an extra and unnecessary layer of parliamentary scrutiny to a process that is under way at official level. It would also have a critical impact on the commencement of the clause; it would add delay, but we need the measures in place to respond to the expected surge in dangerous small boat crossings when the weather improves in spring next year. I urge the hon. Member not to press his amendment.

On clause 37, the UK is experiencing a very serious problem of small boat arrivals; illegal migrants are crossing from the continent in small craft that are often equipped with only an outboard motor. They are unseaworthy and wholly unsuitable for a crossing of a minimum of 21 miles across some of the busiest sea lanes in the world. Many of the vessels break down and are intercepted by UK personnel on the grounds of safety of life at sea. The rescued migrants, including pregnant women and children, are generally brought to Dover.

The maximum sentence of six months does not reflect the seriousness of the offence of entering in breach of a deportation order. Increasing the maximum sentence to five years will disrupt the activities of foreign national offenders involved in criminal networks, including organised immigration crime.

The current offence of knowingly entering the UK without leave is ineffective and does not provide a sufficient deterrent to those wishing to enter the UK illegally by small boat. We accordingly propose increasing the maximum sentence from six months’ to four years’ imprisonment.

We also intend to create a new offence of arriving in the UK without an entry clearance where that is required. While some migrants seek to evade immigration control, for example by landing on a deserted beach, many more now arrive in the UK after being rescued at sea. It would not be right, and would be perverse, to have to let migrants take the risk of completing their journey without assistance, and of landing at a small beach, rather than rescuing them at sea, just because under current legislation, the act of intercepting them and bringing them to the UK could cast doubt on whether the migrants entered unlawfully.

It is worth repeating that we are not seeking to criminalise those who come to the UK genuinely to seek asylum, and who use safe and legal routes to do so. We will be targeting for prosecution those migrants in cases where there are aggravating factors—where they caused danger to themselves or others, including rescuers; where they caused severe disruption to services such as shipping routes, or the closure of the channel tunnel; or where they are criminals who have previously been deported from the UK or persons who have been repeatedly removed as failed asylum seekers. The increased prison penalty will allow appropriate sentences to be given to reflect the seriousness of this behaviour.

[Stuart C. McDonald]

The Minister is at his most reassuring when he tells us, basically, “Don’t worry; we are not really going to apply the full provisions of the clause.” The key point is that none of this is in the Bill. I want to remove these measures altogether, but could we at least put some of the restrictions in the Bill? Otherwise, we are putting in statute a law that criminalises the overwhelming majority of asylum seekers coming into the United Kingdom.

[Tom Pursglove]

I hope I will be able to provide the hon. Member with further reassurance by going on to say that, of course, the decision on whether prosecution is in the public interest rests with the Crown Prosecution Service in England and Wales, the Crown Office and Procurator Fiscal Service in Scotland and the Public Prosecution Service in Northern Ireland. In many cases, we will continue to seek the illegal migrant’s removal, rather than their prosecution.

The amended and new offences will apply to all types of unlawful entry and arrival, rather than being limited to entry via small boats. We should not limit our response to the evasion of proper immigration procedures and controls depending on the method of entry employed. Doing that would risk causing displacement to another, potentially equally dangerous, route. The offences will therefore also apply equally to other means of evasion, such as concealment in a lorry.

We are also amending the offence of assisting unlawful immigration to the UK in breach of immigration law, known as facilitation, to include arrival in the UK. That will ensure that the offence of facilitation also applies to those assisting the new offence of arriving without a valid entry clearance.

Clause 60 is one of the six clauses drafted as marker clauses at introduction. As indicated in the explanatory notes and memorandum for the Delegated Powers and Regulatory Reform Committee, it was drafted as such in the interest of transparency—to make clear our intention of bringing forward substantive provisions on electronic travel authorisations. New clauses 21 and 22 are intended to replace clause 60.

Amendment 120 ensures the provisions in new clauses 21 and 22 can be extended to the Crown dependencies by Order in Council, should they wish to introduce their own electronic travel authorisation scheme by amending the Bill’s extent provisions in clause 69. As I noted earlier, the Government are committed to strengthening the security of our border by ensuring that everyone who wishes to travel to the UK—except British and Irish citizens—has permission to do so before they travel. The Government will introduce an electronic travel authorisation scheme—the ETA scheme—to close the current gap in advance permissions, and to enhance our ability to prevent the travel of those who pose a threat to the UK.

At present, non-visa nationals coming to the UK for up to six months as visitors, and in limited other categories, can travel to the UK solely on the basis of their nationality, evidenced by their passport or other travel document. That information is sent to the Government by the majority of carriers as advance passenger information shortly before the individual embarks on their journey. The ETA scheme will allow security checks to be conducted and more informed decisions to be taken at an earlier stage in advance of travel. The introduction of an ETA scheme is in line with the approach that many of our international partners have taken to border security, including the United States, Canada, New Zealand and Australia.

New clause 21 would insert proposed new section 11C into part 1 of the Immigration Act 1971, which will allow the Secretary of State to make immigration rules to administer an ETA scheme. Those rules will include, but are not limited to, who must apply for an ETA, what that application must contain, how long an ETA will be valid for, and when an ETA should be granted, refused, varied or cancelled.

Additionally, new clause 21 also inserts proposed new section 11D into part 1 of the 1971 Act, allowing the Secretary of State to administer an electronic travel authorisation scheme on behalf of a Crown dependency, if requested to do so, in the event that a Crown dependency chooses to operate its own ETA scheme. It also enables the Secretary of State to make regulations to recognise an electronic travel authorisation issued by a Crown dependency as valid for travel to the UK, in line with the UK’s commitment to maintaining the integrity and security of the common travel area.

To enforce the ETA scheme, new clause 22 builds on the existing carriers’ liability scheme by incentivising carriers to check prior to boarding that a traveller holds an ETA—or another form of permission, such as a visa in electronic form—or risk a civil penalty. Such checks are necessary to enforce our requirement for everyone, except British and Irish nationals, to get permission to come to the UK before they travel.

At present, carriers are incentivised to check for the presence of a valid immigration document that satisfactorily establishes identity and nationality or citizenship, and any visa required. New clause 22 incentivises carriers to check that all passengers have the appropriate permission— including by checking with the Home Office, if that permission may be held only in digital form—or risk a penalty. The new clause also provides a statutory excuse against the imposition of a penalty, to cater for circumstances where it has not been possible for the carrier to check for the presence of an ETA, or another form of permission, through no fault of their own.

--- Later in debate ---

[Tom Pursglove]

Notwithstanding what I have already said about the prosecution services taking a case-by-case approach, the hon. Member inquired about aggravating factors not being added to the Bill. The factors for prosecution when someone comes to the UK may change depending on the circumstances. We need to be able to react flexibly, so putting the factors in primary legislation would be too restrictive. I return to the point that I would expect prosecution services to look carefully at individual cases and to take all factors into account, so I would not accept his depiction.

[Stuart C. McDonald]

I take a small crumb of comfort from the fact that the Minister does seem to be evidencing some discomfort about how the clause is drafted. He is trying to reassure us by saying it will not be implemented as it is set out now, but that is not satisfactory. We parliamentarians are concerned with what is in the Bill. It is fine for the Minister to say that; I do not know how long he will be in office—hopefully many years—but there will be other Immigration Ministers to come, and they may take a completely different approach.

It may be challenging to put restrictions or a statutory defence in the Bill, but the Minister has to try. He must try much harder. We cannot leave such a broad criminal offence in the Bill simply on the basis of reassurances. I am absolutely of the view that the measures should be removed—for the reasons relating to the refugee convention, and that is even before we get to the ethical considerations and the impact the measures will have on asylum seekers and trafficking victims.

What the clause actually says will make it infinitely harder for refugees or trafficking survivors who eventually make it all the way through the horrendous new system to integrate, put down roots and rebuild their lives. There are questions about how the measures would operate in practice; they raise the spectre of families being separated on arrival if one member is accused of committing this criminal offence. How much harder will it be for somebody to get a job in due course if they have this criminal conviction and spend years in prison? UK citizenship will essentially be near impossible for them.

As we have heard repeatedly, particularly from the hon. Member for Sheffield Central, all of this will achieve absolutely nothing. As Tony Smith, the borders expert, told us in the Committee’s evidence sessions, use of the criminal justice system just has not worked. For smugglers and traffickers, it absolutely has, but not for their victims.

I have a question on scope. Will the Minister clarify whether someone who arrives with an entry clearance that is invalidated because it turns out that it was applied for on a false basis—for example, somebody who has secured a visit visa, when they are arriving to claim asylum—will have committed a criminal offence under the clause, because the leave to enter was obtained fraudulently? From the wording, I guess that they will, but it would be useful to hear the Minister’s clarification.

On amendment 110, we broadly support the ETA regime and encouraging carriers to ensure that the conditions are met, but we are still not absolutely convinced of the need for yet another criminal offence. Why can the remedy for turning up without an ETA not simply be to require that person to leave, or to send them back again? What group of people are being targeted here who are not already impacted by one of the other offences?

Even the wording on the state of knowledge of the person committing the offence raises questions. It says the person must “knowingly” arrive here without the ETA or entry clearance. The required knowledge seems to relate only to knowledge of arrival without the ETA or entry clearance, and not knowledge of whether he required that ETA or entry clearance. If we put that together with the fact that the measure will apply to people arriving in the UK rather than entering it, there is a danger that this will cover people who rock up in ignorance at airport border security, rather than anyone who is trying to do anything sinister. Simple ignorance and a mistake could lead to years in prison. I might be wrong about that; it would be useful to have clarity. Why is a criminal offence necessary?

Our amendment 188 was tabled to prompt discussion about consultation with the devolved criminal justice systems and the personnel in Scotland and Northern Ireland. Again, it gives me some comfort that the Minister has had some of these discussions—at least, the Home Office has—and there has been the important recognition that decisions about public interest will be for devolved prosecutors. It is important to acknowledge that, and it is welcome.

In short, as clause 37 stands, it sets out a framework for arresting, prosecuting and imprisoning several thousand asylum seekers, refugees and trafficking victims every year. Is there an estimate of what the cost will be, regardless of how it is implemented in practice? What will that do the backlogs in courts struggling to recover from covid, and what would be the impact on prison capacity? Putting all that to one side, the fundamental issue is the impact on asylum seekers, refugees and trafficking victims. The clause, as drafted, will compound the already slow and needlessly painful process of securing protection and add a criminal sanction. It is going to achieve absolutely nothing except more human misery.

--- Later in debate ---

[Tom Pursglove]

I will pick up on a few points in concluding our deliberations on the clause.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East spoke about costs. We are working with the various UK criminal justice systems and we have shared estimates of costs at official level as part of operationalising the plan. He sought further clarity about that and I hope that has provided reassurance. He also asked about entry clearance invalidation. If the leave is valid on arrival and is subsequently cancelled, no offence would have been committed, but if it is invalidated prior to arrival and the person knows that, the offence would have been committed.

Finally, I reiterate the point about the application of offences in this area. It bears repeating that we are targeting for prosecution those migrants for whom aggravating factors are involved—for example, those causing danger to themselves or others, including rescuers; those causing severe disruption to services such as shipping routes or closure of the channel tunnel; or those who have previously been removed from the UK as failed asylum seekers. The increased prison penalty will allow appropriate sentences to be given to reflect the seriousness of this behaviour.

[Stuart C. McDonald]

Has the Minister done an analysis of whether there are already criminal offences that cover the scenarios he has just outlined?

[Tom Pursglove]

We believe that this measure is required so that we can take appropriate action to deal with the sorts of circumstances I have just set out. I have made that clear on several occasions, and Members will have heard what I have said. I fully expect that that will continue to be the case, and that will be made clear at every opportunity.

I go back to the point that prosecuting services must judge cases on a case-by-case basis. They must of course take all the factors relevant to the individual case into account in deciding whether to proceed with it. They must also decide whether that is in the public interest. That is a very clear and established position, and will continue to be the case.

I am comfortable that the proposed approach is the right one to take in addressing the issues I have set out, which are particularly egregious and concerning and which require further action.

Amendment 110 agreed to.

Amendments made: 111, in clause 37, page 36, line 5, leave out “or (C1)” and insert “, (C1) or (C1A)”.

This amendment is consequential on Amendment 110.

Amendment 112, in clause 37, page 36, line 19, leave out “or (C1)” and insert “, (C1) or (C1A)”.

This amendment is consequential on Amendment 110.

Amendment 113, in clause 37, page 36, line 29, after “(C1)” insert “, (C1A)”.

This amendment is consequential on Amendment 110.

Amendment 114, in clause 37, page 37, line 2, after “(C1)” insert “, (C1A)”.

This amendment is consequential on Amendment 110.

Amendment 115, in clause 37, page 37, line 4, after “(C1)” insert “, (C1A)”.

This amendment is consequential on Amendment 110.

Amendment 116, in clause 37, page 37, line 12, after “(C1)” insert “, (C1A)”.

This amendment is consequential on Amendment 110.

Amendment 117, in clause 37, page 37, line 15, after “(C1)” insert “, (C1A)”. —(Tom Pursglove.)

This amendment is consequential on Amendment 110.

Question put, That clause 37, as amended, stand part of the Bill.

--- Later in debate ---

[Stuart C. McDonald]

I wish briefly to associate myself with everything the shadow Minister just said; he covered pretty much all the ground that I would have covered. This ridiculous clause tramples all over our international obligations. I suspect what will happen today, as happened on Second Reading, is that we will be reassured that the clause will be used in a certain way so that the RNLI and others will not be targeted. Maybe I am wrong, which would be good, but the scope of the clause is extraordinary.

If the defence, as it was on Second Reading, is, “We’re not going to go after these people,” that is not good enough. You have to put that on the face of the Bill. We cannot create criminal offences and ask folk to go about breaching those laws and committing crimes in the hope that the Government keep their promise that they will not be prosecuted. It is a fundamental rule of legal principle—[Interruption.] The Minister is shaking his head: if that is not the defence, I look forward to hearing what is.

[Tom Pursglove]

I am grateful to the hon. Members for Enfield, Southgate and for Halifax for providing the opportunity to explain the difficulties involved in securing convictions for an odious crime that targets and exploits vulnerable people and allows organised criminals to thrive.

Gain can be obtained in many ways, but cannot always be proved to the evidential standard required for a successful prosecution: for example, money transfers made by other family members abroad or made cash in hand, promises of servitude by the asylum seeker or others, or the provision of assistance in the facilitation act, such as by avoiding paying a fee by agreeing to steer a small boat. It is right that all available evidence should be considered and all relevant behaviour taken into account in investigating a serious offence. We are, at present, limited by what is an unrealistic evidential requirement that does not take account of the reality of how international organised crime operates.

In amending the offence, we are mindful of the excellent work of those acting from humanitarian motives both now and in the past. I understand fully hon. Members’ concerns that the wrong people will be drawn into the investigative and judicial process. We are therefore retaining the defence available to organisations whose aim is to assist asylum seekers and who do not charge for their services. I also recognise the bravery of volunteers working for the RNLI and lifeboat crews who undertake vital work in protecting lives at sea.

I will set out my intention to amend this clause on Report to ensure that organisations such as the RNLI, those directed by Her Majesty’s Coastguard, and individuals who fulfil their obligations in rescuing those in distress at sea may continue as they do now. We also intend to ensure that this provision does not prevent those responsible for vessels from complying with their obligations if they discover stowaways on board as they journey to the UK. I understand that some members of the Committee would prefer to have those amendments ready to debate now, but the issues are complex and we must ensure that we do not inadvertently provide loopholes to be exploited by criminal gangs who will look for any means to avoid prosecution.

The effect of amendment 33 is that, by retaining the constraint and having to prove the offence was committed again, we will only rarely be able to respond to and deter those committing the offence and will continue to place an unrealistic burden on our law enforcement officers and prosecutors. I therefore ask the hon. Gentleman to withdraw the amendment, although I hope he will be reassured that I intend to table on Report an amendment to address the crux of the issues that he raised. I hope that hon. Members across the House will feel able to support the amendment that I intend to table.

--- Later in debate ---

[Tom Pursglove]

In response to numbers of migrants using dangerous maritime routes to enter the UK illegally, this Government are committed to providing Border Force with the tools and legislation they need to combat this illegal migration threat more effectively. We need to strengthen and broaden our current powers not only to improve the effectiveness and capability of Border Force’s current maritime interception tactics, but to better equip them for future operational developments, which may be enhanced through agreements with our near border partners.

The clause and schedule will also provide new powers allowing Border Force to return vessels and those on board, when appropriate, to non-UK locations. Finally, the Government will use this clause to provide bespoke seizure and disposal powers intended for Border Force use against the small boats threat specifically. It will provide far more flexible options for the seizure and disposal of the vast majority of unflagged, ownerless vessels that are being used to transport illegal migrants.

I turn to Government amendments 82 and 83. We are seeing an unacceptable rise in dangerous and unnecessary small boat crossings. Our primary focus is on preventing people from embarking on dangerous channel crossings to enter the UK illegally, tackling the criminal gangs responsible and protecting lives. We must send a powerful message that people should not leave the safety of countries such as France or Belgium to enter the UK illegally in an unseaworthy boat, and if they do, they could be taken back.

[Stuart C. McDonald]

On the question of legality, Government amendment 82 is pretty extraordinary, because it seems to remove a restriction on the power of the Secretary of State so that she is unconstrained by the United Nations convention on the law of the sea; I am just looking at the explanatory note. Is that amendment designed to allow the Secretary of State to break the international law of the sea?

[Tom Pursglove]

I thank the hon. Gentleman for raising that point, and I will come on to it imminently. To finish the point I was making, the Government amendments will remove text from the Bill that is now considered not to be essential to achieving the aim that I have set out.

The UK has ratified, and is therefore fully committed to upholding, the United Nations convention on the law of the sea. The Government are committed to utilising their maritime enforcement tactics in full compliance with international law. The re-statement of that in the clause is therefore unnecessary. It is also unnecessary to state in legislation, where it is already beyond doubt, that Border Force would seek permission from a foreign country before taking a migrant boat back to that country. That statement adds nothing to the powers being created in this part of the Bill.

We want to make it explicit that operating these maritime enforcement powers in UK waters or international waters to simply divert a migrant vessel from UK territorial seas does not require the permission of a foreign state where that vessel may then enter their waters. These amendments will not result in the UK failing to abide by its international obligations, whether that be in the context of the safety of lives at sea or when seeking permission if intending to return migrants to another country, such as France.

I thank the hon. Member for Sheffield Central for what he will no doubt say about amendments 144 to 149. I will start by addressing amendment 144, which proposes to add an additional requirement to the maritime powers where the options available to officers intercepting a vessel at sea are spelled out. In order for the tactics intended for use in the exercise of these powers to be safe and legal, officers will have to carry out risk assessments before and during any exercise of the powers. That requirement will be laid out in operating procedures to ensure we meet our international obligations on safety of life at sea.

As any deployment of the tactics under the powers will be carried out in full accordance with those obligations, the welfare and safety of those on board vessels will be the priority throughout. With international obligations in this context not being a matter for UK legislation, we do not consider it necessary to add the amendment. I also note that any deployment of maritime tactics will be carried out in full compliance with obligations under the European convention on human rights and the Human Rights Act.

I turn now to amendment 145. The schedule that it would amend deals with new powers allowing Border Force and others to require vessels to be taken to a non-UK port if necessary. There are a number of reasons why we may wish to have the capability to do this, and they are not all related to the return or removal of asylum seekers. For example, any potential future agreement with partners to patrol waters jointly may require rescued or intercepted migrants to be taken back to the country from which they embarked on their maritime journey. As such, we do not consider that the amendment is needed or appropriate in schedule 5, and we are not prepared to commit to providing a running commentary to update on the progress of sometimes sensitive international negotiations.

I understand that the intention of amendments 146 to 148 is to emphasise the need to ensure that account be taken of human rights obligations by appropriately trained officers exercising these maritime powers. However, the amendments are unnecessary and would have no practical impact on the operation of the powers by Border Force officers and others. All operational officers within Border Force receive, and must have passed, appropriate training in order to exercise their duties. In order to be appointed as an immigration officer, an official must successfully complete and pass a foundation course that includes understanding the European convention on human rights as it relates to the Human Rights Act 1998, and their resulting obligations in the context of exercising powers.

Nationality and Borders Bill (Twelfth sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Thursday 28th October 2021 Public Bill Committees

[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.

[Tom Pursglove]

It may be easier if I explain that the power in amendment 137 already exists—albeit for 10 days—in published policy that is available on gov.uk. The purpose of putting the policy into statute is not to introduce a new power, as it already exists. Rather, we want to place it on a statutory basis to enable parliamentary scrutiny.

We can currently rearrange a migrant’s removal on another flight within 10 days of a failed removal without the need to give the migrant a fresh notice period. Clause 43 will increase the period to 21 days. Our recent experience during the pandemic has shown us that organising flights and complying with travel restrictions is difficult—dealing with self-isolation and rebooking escorts, for example. It is therefore entirely reasonable and sensible to allow the flexibility of 21 days to remove the migrant if the removal fails for reasons that are reasonably beyond the Secretary of State’s control.

It may be helpful to provide some examples to illustrate that point. A migrant has already had time to access justice and is due to be removed, but the flight is cancelled because of bad weather. The removal fails, but we manage to book a flight for the next day. We do not want to be in the position of having to wait another five working days before we can remove that migrant. As a second example, if a removal fails because the migrant is deliberately disruptive, that person should not be rewarded with another five working days in which they can try to defer their removal further. For those reasons, I ask the hon. Member for Enfield, Southgate to withdraw his amendment.

To pick up on the point about access to legal aid during the notice period, migrants who are detained in immigration removal centres during the notice period will have access to the free legal advice surgery.

New clause 28 replaces clause 43 in its entirety. Our expert drafters have advised that it is better to do it that way because the text flows better and it is easier to navigate.

Unfortunately, migrants subject to enforced removal often wait until the last minute to challenge their removal from the UK. Consequently, flights are cancelled and removals are inevitably delayed at great cost to the taxpayer. We think it right that migrants subject to enforced removal must be allowed a reasonable opportunity to access justice. The sole purpose of the notice period is to give migrants time to seek legal advice. That is the rationale underpinning the clause.

Our current policy is complicated. Some migrants are given a minimum notice period of 72 hours, while others are given five working days. Calculating when the 72 hours start and end is confusing. They must include at least two working days, and the last 24 hours must include a working day. Evidently, there is scope for simplifying the process and making it consistent across the board. New clause 28 will do just that by placing in statute a single statutory minimum notice period of five working days for migrants. The new clause requires us to serve a written notice of intention to remove, setting out the notice period. Before the migrant can be removed, we must serve a written notice of departure details containing the date of removal.

A limited exception to the single statutory notice period relates to port cases. Migrants who are refused entry at the border can be removed within seven days without receiving a notice period. It is unlikely that they would have developed ties to the UK within that week.

The clause will create more clarity for Home Office staff, legal representatives and migrants. Migrants will know how long they have to access justice—in fact, some will have more time to access justice—and will therefore have fewer excuses to frustrate removal.

To be clear, we are not reintroducing removal windows, which were found to be unlawful by the Court of Appeal. Under the new clause, the migrant cannot be removed during the notice period. If the removal is cancelled or deferred because the migrant raises a fresh or further claim, a fresh notice period must be given before removal can proceed. Individuals will also be given a fresh notice period if there is a change to the previously notified destination or route, unless the place of transit is in a safe country.

The new clause provides that migrants can be removed within 21 days of a failed removal that was caused by their disruption. In such circumstances, a further notice period is not required because the migrant has already had sufficient opportunity to access justice, which is entirely reasonable when there are no significant changes to the migrant’s circumstances. That is in our current published policy but with a timescale of 10 days. Extending the time from 10 to 21 days will give us more time to rearrange removal.

The pandemic has highlighted the fact that organising escorts and rebooking flights cannot always be turned around quickly. Migrants frequently challenge their removal by way of judicial review, and of course that is their right. As per the clause, once a court decides that the migrant can be removed, we can remove them within 21 days without a fresh notice period. The migrant has already had time to access justice, and the removal decision has been subject to judicial scrutiny. There is no justification for further time.

--- Later in debate ---

[Tom Pursglove]

For too long, individuals with no right to remain in the UK, including foreign criminals, have been gaming the system in order to get released from detention and frustrate their removal. We have seen individuals making asylum claims while in detention, but then delaying the resolution of that claim through their own deliberate actions, such as refusing to be interviewed. The current system incentivises non-compliant behaviour. By creating obstacles, bail is more likely to be granted due to the time it will take to resolve the claim and any subsequent appeals. It is not right that a person’s non-compliance enables their release.

Similarly, an individual may refuse to provide fingerprints for a travel document or may lie about their true nationality, thereby obstructing the returns documentation process. This again makes the prospect of removal more remote and increases the likelihood that bail may be granted. From an operational perspective, non-compliance is difficult to tackle and becomes much harder to counter once individuals are released from detention into the community, where they have the ability to abscond or continue with non-compliance. Therefore, eliminating the risk and impact of non-compliance is a key benefit that arises from the use of immigration detention if appropriate in the individual case.

We must have an immigration system that encourages compliance. The purpose of clause 45 is to ensure that, so far as possible, appropriate weight is given to evidence that a person has not been co-operative with the immigration or returns processes without reasonable excuse when making immigration bail decisions. This is currently not explicitly referenced as one of the specific mandatory criteria for considering whether to grant immigration bail.

[Stuart C. McDonald]

The Minister did seem to accept that all those factors can be taken into account already if they are relevant to the question of whether the person is going to be removed in a reasonable time or whether they will abscond. Surely those are the only two questions. This is not necessary at all and seeks to use immigration detention as a form of punishment.

[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.

--- Later in debate ---

[Tom Pursglove]

Before turning to part 4, which deals with modern slavery, I would like to make a declaration of interest. In October, prior to my appointment as Minister, I ran the London marathon and raised funds for the Mintridge Foundation, which encourages young people to get into sport, and Justice and Care, a charity that works to tackle modern slavery. I make the declaration in the interests of complete transparency and for the information of the Committee.

I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, and for Glasgow North East for the amendment. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East raised important questions about the purpose of the slavery and risk trafficking notice.

The clause forms part of our approach to expanding the one-stop process to include modern slavery through the establishment of a new slavery and trafficking information notice. We have already debated the one-stop process, so I will not repeat that discussion, but the aim of the process is to identify possible victims as early as possible and ensure they receive the support they need. To best achieve that, we also need to discourage misuse of the system by stating our expectations and stipulating the consequences of non-compliance with the process.

That being said, let me reassure hon. Members that the clause has safeguards built in, and decision makers will consider each case on its grounds. To seek to remove the deadline stipulated by the slavery or trafficking information notice, as suggested by amendment 170, would go against the approach I have outlined. Without a deadline, the Government would be unable to seek the information up front that supports speedier decision making. Equally, changing a “specified” time to

“a reasonable period of time”

would provide less certainty to victims and decision makers on what is required. That would be detrimental to the victim identification process and goes against what we are trying to achieve in the Bill.

The ability to identify victims at the earliest opportunity is fundamental to our ability to support them. The clause is part of a wider process of much-needed change to the system to enable quicker decision making and reduce opportunities for misuse of the system, which takes valuable resources from victims. To deliver on that aim, it is right that we specify the time period in which information should be given, so that there is a connection to the consequences of late provision. As I have already set out, that does not mean that late claims will not be considered; any individual who brings a late claim for a good reason will be treated as if the claim were made in time. That will enable us to strike the right balance between preventing misuse and focusing resources on victims. For the reasons I have outlined, I respectfully invite the hon. Gentleman to withdraw the amendment.

[Stuart C. McDonald]

We share the same goal, which is identifying victims. Unfortunately, every single trafficking organisation that has got in touch with us has said that putting these hard and fast deadlines in the Bill will make that harder, rather than easier. We will probably end up voting against this clause, but in the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald]

I beg to move amendment 172, in clause 46, page 41, line 42, at end insert—

“(2A) The requirement in subsection (2) does not apply in relation to anything that the slavery or trafficking information notice recipient has previously provided to the Secretary of State or any other competent authority.”

This amendment would ensure a recipient of a slavery or trafficking information notice does not need to provide information that has already been submitted to the Secretary of State or any other competent authority.

This amendment makes a short and simple, but important, point. Requesting the same information that has already been disclosed could be needlessly re-traumatising for a victim of modern slavery or trafficking, so the simple question is whether the Minister can assure us that that will not be made necessary under clause 46. The clause seems to envisage that trafficking information notices could be served on someone who has already had a positive reasonable grounds decision. Can the Minister confirm whether that is right, and if so, why that would be necessary? As it stands, the clause calls for “any” information that might be relevant for the purposes of making a decision on reasonable or conclusive grounds. Surely there will be no penalty if information already provided is not once again provided in response to the notice being served.

[Tom Pursglove]

Again, I thank the hon. Gentleman for tabling the amendment. I reassure Members that the clause already has safeguards built in, and it is clear that decision makers will consider each case on its grounds. I appreciate the consideration given to the provision of information, and the recommendation that the clause should stipulate that information provided previously to the competent authority should not be included. However, the amendment is not needed. Decision makers in the competent authority will consider all information provided to them. Credibility considerations connected to lateness will, by implication, apply only where information has not been provided within a specified time period and without good reasons, which will be made clear in guidance. For that reason, I respectfully invite the hon. Member to withdraw the amendment.

[Stuart C. McDonald]

I am grateful to the Minister for his response, which I will go away and consider. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Holly Lynch (Halifax) (Lab)]

I beg to move amendment 184, in clause 46, page 42, line 3, at end insert—

“(3A) Any slavery or trafficking information notice must be accompanied by information regarding the Secretary of State’s obligations to identify and support potential victims of modern slavery and trafficking.”

This amendment would ensure that potential victims are given information regarding their rights at the same time the notice is served.

It is a pleasure to serve with you in the Chair, Ms McDonagh. I commend the Minister on having run the London marathon for Justice and Care, which does invaluable work.

We are supportive of the previous Scottish National party amendments to clause 46, which were outlined by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. If we achieve nothing else this afternoon, I did promise the SNP spokesperson that I would work on being able to pronounce his constituency in time for our debates on the Bill, having managed to avoid doing so entirely during the passage of last year’s Immigration Act. I hope he will recognise those efforts.

With your permission, Chair, I will come back to clause 46 more broadly during the stand part debate. Our amendment follows a damning letter sent by 60 charities from across the human trafficking and modern slavery sector. They seeks to mitigate the effects of a Bill that they claim

“will have a disastrous impact on the UK’s response to modern slavery.”

In the light of the series of recommendations in that letter, amendment 184 would require any slavery or trafficking information notice to be

“accompanied by information regarding the Secretary of State’s obligations to identify and support potential victims of modern slavery and trafficking.”

We have serious concerns about both clauses 46 and 47, but these trafficking information notices are a new initiative, and should be accompanied by a full explanation of why the questions are being asked and what rights and support a potential victim of trafficking should be entitled to. The Government have placed significant emphasis on the need to reduce the time taken for victims to be identified, and on ensuring they receive the correct support package at the earliest opportunity. We strongly share that objective, so the requirement for information to be provided at the same time as the notice is served seeks to address any uncertainty and anxieties a potential victim may have.

Furthermore, it is critical that a trafficking notice is served with an assessment and awareness of risks and victims’ needs, as they can be incredibly wide-ranging, and that assessment and awareness can be essential for safeguarding purposes. Some victims will not have English as their first language, and some may have limited literacy skills. They will need access to the correct translator and there should be recognition of any special educational needs. That reinforces the need for each case to be evaluated sensitively.

We seek to ensure that the basic entitlement to information is met. It is important to recognise that in cases of modern slavery, many first responders and expert witnesses have found that victims interviewed often have so little knowledge of the national referral mechanism that they do not know if they are, or have been, in the NRM. Victims being unable to self-identify and limited awareness of how to navigate the NRM are consistent issues, and we will return to them under other clauses in part 4. Amendment 184 seeks to mitigate potential restrictions to the NRM, and is a sensible suggestion, and I hope that the Minister sees its merit.

--- Later in debate ---

[Stuart C. McDonald]

I will be brief, given what I said in support of the amendment. All the anti-trafficking organisations that got in touch with us—60 or so—said that this clause could cause huge problems. I am not clear at all what issue the Government think it will resolve. What is the problem they are striving to tackle? It has not been outlined at all. All hon. Members agree that we need to identify more victims, but as the hon. Member for Halifax said, this will do the opposite and make it harder, not easier.

[Tom Pursglove]

It might assist the Committee if I say a little more. I am not concerned about covering ground that we may have already covered if it helps to clarify matters further and to put beyond any doubt the Government’s undertaking.

The purpose of clause 46 is to ensure that genuine victims of modern slavery are identified at the earliest possible opportunity, so that they can get the support they need to recover from their exploitation. The clause is part of the measures that seek to expand the current one-stop process to include modern slavery through the establishment of the new slavery and trafficking information notice, which can be issued alongside the new evidence notice introduced by clause 16.

Asylum and human rights claimants will need to provide relevant information relating to being a victim of modern slavery or trafficking within a specified period and, if providing information outside that period, set out a statement of their reasons for doing so. The slavery and trafficking notice aims to help identify possible victims at the earliest opportunity, to ensure that they receive appropriate support. It also aims to ensure that those who are not genuine victims are identified at the earliest possible stage.

The clause is underpinned by access to legal advice to help individuals understand whether they are a potential victim of modern slavery or human trafficking, and to support a referral into the national referral mechanism if that is the case. The clause works in tandem with clause 47, which sets out the impact of not providing information in good time without a good reason, such as the effects of trauma. Individuals will also be made aware from the start that if they fail to disclose information, save for good reason, their credibility may be damaged. We will set out our approach in guidance, giving decision makers the tools to recognise the impact of exploitation and trauma, and ensuring any changes to processes resulting from those measures are designed to take full account of the impact of trauma on victims of modern slavery. We intend to work with the sector to develop the guidance around that. I hope that will give Members confidence that the views and experiences of those groups will be taken into account when developing the guidance.

[Tom Pursglove]

I think the hon. Gentleman may have misunderstood my point. I was not saying there was any intention to impose a requirement on the sector to work with Government to develop the guidance, but undoubtedly we would welcome the input of the sector, which has a lot of experience and knowledge. We think there is a genuine issue that we need to address. The point I have made several times is that we want people to access the help they need when they need it as quickly as possible.

[Stuart C. McDonald]

The sector would have preferred to have been consulted on the clause. The key problem it has is what happens if someone has gone past that deadline. This scheme puts real pressure on that person not to disclose at all, because they will fear that the regime will lead to their being disbelieved. That is a fundamental problem. Consulting after the clause is already on the statute book will not fix that.

[Tom Pursglove]

I disagree with the hon. Gentleman’s broader interpretation of the situation. We want to identify and help genuine victims as quickly as possible. I would expect cases to be looked at appropriately and individually to ensure that is exactly what happens. There was also a question of whether victims will receive a slavery and trafficking information notice before getting a reasonable grounds decision? Yes, we want to identify victims as soon as possible.

--- Later in debate ---

[Stuart C. McDonald]

I beg to move amendment 173, in clause 47, page 42, line 21, leave out—

“or a conclusive grounds decision”

This amendment would disapply this section when a conclusive grounds decision is being made (i.e. when a reasonable grounds decision will already have been made).

The amendment is designed to allow us to question how the new process will interplay with the NRM process, and to establish how long the notice period in the new process will be, so it is another short but important point. The amendment would disapply the section on credibility if a reasonable grounds decision is made. It is even less clear what sensible case can be made for the use of a trafficking information notice if sufficient information has already been provided to justify such a reasonable grounds decision.

Depending on how the system operates, and given the huge delays in making conclusive grounds decisions, the following scenario could play out. A person receives a reasonable grounds decision and is referred to the NRM process. That person makes a claim for protection, and the Secretary of State then serves them with a trafficking information notice. Full disclosure takes time because of their circumstances. The person is better placed to disclose much more information after the deadline for the trafficking information notice has passed but before a conclusive grounds decision is reached. It would surely be very strange, then, for the conclusive grounds decision to take account of late provision of information, but the clause appears to envisage that that could happen. Has that all been appropriately thought through? It would be useful to hear an explanation of how those two processes will interact.

[Tom Pursglove]

I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for their amendments. I am pleased to see from the amendments that they acknowledge the benefits of a system that brings forward at the earliest opportunity all information related to modern slavery, enabling us to provide support and protection quickly to those who need it.

To that end, clause 47 covers information raised at the reasonable grounds and conclusive grounds stages, which are the two crucial decision-making stages in the national referral mechanism, and which both confer different rights on possible and confirmed victims. Although there are different standards of proof at those two stages, it is critical that the decision maker at both points can review all information to take decisions. Those decisions should include consideration of whether information has been provided late and whether there are good reasons for that. By removing that consideration at the conclusive grounds stage, amendment 173 would remove the consequence of providing late information when the decision-making threshold is higher. That could perversely incentivise misuse of the system at the later stage.

We are clear that that approach should be taken across both decision points to ensure that we meet the clause’s aim of identifying victims as early as possible and reducing opportunities for misuse.

[Stuart C. McDonald]

I am confused. I cannot see the benefit of late disclosure if the conclusive grounds process is ongoing. What does the amendment incentivise?

[Tom Pursglove]

Again, I simply make the point that decisions are made case by case. We maintain that we need all the information at both decision points to reach the right decisions in individual cases. For those reasons, I respectfully invite the hon. Member to withdraw the amendment.

[Stuart C. McDonald]

We will go away and study what the Minister has said. I am still confused about the interaction between the two processes. The amendment was designed to seek an explanation, and I suspect that we will not be satisfied with it, but in the meantime I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald]

I beg to move amendment 174, in clause 47, page 42, line 23, leave out “or on behalf of”.

This amendment would exclude statements made on behalf of a slavery or trafficking information notice recipient (as opposed to statements made directly by them) from this subsection.

This is a very short point, but another important one. The amendment is designed to try to get further information from the Minister. I am sorry to have to test him on all the detail of the clause, but it is important. What we are asking here is why statements made on behalf of a trafficking information notice recipient should be impacted by the clause because of late provision of evidence. What does this cover? Is a medical report, for example, to be impacted by the clause so that its credibility is doubted because the recipient gave information late? Is analysis of the truth of what a social worker or a counsellor has said on behalf of the trafficking survivor to be impacted by the clause as well? We are really just asking this. What does it mean? What is the scope of the fact that this scheme applies to statements made on behalf of the trafficking information notice recipient and not just by the recipient himself or herself?

[Tom Pursglove]

Again, I am grateful to the hon. Member for setting out his case for the amendment. We know that, given the nature of modern slavery and human trafficking, many individuals often struggle to provide information relating to their abuse. That is why these measures are supported by the provision of legal aid to support possible victims in understanding the process and the national referral mechanism. It is also for that reason that the clause is specifically drafted to capture information provided by the victim or on their behalf.

All relevant information should be considered, whoever provides it, when decision makers are taking into account the provision of late information. Not to do so would create an artificial divide between different cohorts of individuals, depending on who provides the information for consideration. That could inadvertently encourage misuse of the system by leaving it open for individuals to seek to use others to provide all information late, knowing that its late disclosure will not be part of the consideration of credibility, when they could provide it themselves. That could delay disclosure and therefore our ability to identify and support individuals at the earliest opportunity as well as reducing opportunities for misuse. To give a practical example, I am confident that if someone else failed to press “Send”, the individual affected would not be impacted negatively by that.

For the reasons that I have outlined, I respectfully encourage the hon. Member to withdraw his amendment.

[Stuart C. McDonald]

Again, I am grateful to the Minister for his answer and we will consider it. I am still not absolutely clear on precisely what the scope of the provision is and whether, for example,

“a statement…on behalf of the person”

would include a medical statement—a medical report—so that its credibility would be damaged just because the person who underwent the medical report disclosed information late. We will go away and think about that. I think the Home Office may need to give it some consideration as well, but in the meantime I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Tom Pursglove]

I thank hon. Members for their genuine interest in these matters and for bringing forward their amendments. By introducing a statutory requirement to provide information before a specified date, victims of modern slavery will be identified at the earliest opportunity, ensuring that those who need protection are afforded it quickly. This measure is supported by the provision of legal aid to ensure that possible victims feel able to share information in a safe and supported manner.

It is important to state that the requirement to bring forward information related to being a victim of modern slavery does not mean that referrals brought late will not be considered; all claims of modern slavery will be considered, irrespective of when they are raised. We have purposefully not defined “good reasons” in the Bill, and the detail on how to apply “good reasons” will be set out in guidance for decision makers. That is the appropriate place, giving the Government the flexibility to respond to our ever-increasing understanding of modern slavery victims.

We will of course work carefully with stakeholders as we operationalise guidance to ensure that decision makers have the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall, share, or recognise such events in some instances, while not seeking to prejudge their decision making by placing this detail in legislation. However, as has been recognised, we cannot legislate for every instance where someone may have “good reasons” for providing late information. To attempt to do so would be impractical. It would also limit the discretion and flexibility of decision makers, who are best placed to consider all factors on a case-by-case basis.

Amendment 163 would have the perverse impact of individuals facing different requirements simply because their situation is excluded from the amendment. It also ignores the possibility that a person may identify as one of the listed categories, but their information may be late for unrelated reasons. It would therefore create a blanket acceptance for late information in specific prescribed circumstances, while a vulnerable individual who did not fall within the specified categories would face a different test on whether they had good reason for providing late information. That would be unfair.

As I have set out, it is important that we are clear on the consequence of late disclosure of information in order to provide clarity for decision makers and victims, and to deter possible misuse of the system. Removing the reference to impacting credibility, as amendment 175 seeks to do, would remove our ability to require the provision of information up front. A duty to provide information requires a consequence and I think we are all agreed that seeking information on modern slavery issues up front is of benefit to all. The clause already includes mitigations to the possible consequence of damaged credibility, providing clear safeguards while still addressing the issue of potential misuse. The solution is not to stifle the clause of any robustness.

As I stated, more detail on good reasons and the credibility considerations will be set out in guidance. We will work to ensure that this takes account of vulnerabilities related to an individual’s exploitation. However, as I have outlined, we believe that removing the consideration of credibility as damaging would impede the ability to reduce potential misuse and reduce the impetus to identify victims as early as possible. As a result, that would perpetuate the issues that these clauses are designed to address, to the detriment of victims.

[Stuart C. McDonald]

I am still not sure that the Minister has addressed a fundamental point here. The worry is that if somebody genuinely is a victim of trafficking—I hate even having to describe people in that way—and misses that deadline, the fact that there are possible consequences of that, even if they might have a good reason, means that all they know is that they have missed the deadline. It is a huge disincentive for them to then come forward with other information. That is the whole point, and I still do not think that has been addressed by the Government.

[Tom Pursglove]

I recognise the sincerity of the hon. Gentleman’s concern about this. What I would say to him, as I have now said many times, is that I expect appropriate decisions to be taken on a case-by-case basis, taking proper account of all the circumstances, mitigations and issues that people bring forward in relation to good reasons. I am confident that that process can be properly developed and delivered in a way that is responsive to those sorts of issues. That is why—to address the point made by the hon. Member for Halifax—it is difficult to put a precise time on when that guidance will be put in place, for the simple reason that we want to engage properly with the sector in the way that I have outlined. I want that to be a thorough process and for the guidance to be put in place in an appropriate manner that is as exhaustive as possible, but does not lack common sense and means that proper consideration is given to the many varied reasons that people may have for providing information late, for example.

--- Later in debate ---

[Tom Pursglove]

Clause 47 sets out the consequence if an individual who has been served with a slavery or trafficking information notice as discussed under clause 46 provides information relating to being a victim of modern slavery after the specified time period. The clause aims to ensure that possible victims are identified as early as possible to receive appropriate support and to reduce potential misuse of the national referral mechanism system from referrals intended to delay removal action. Under clause 47, the decision maker must decide whether information provided through the one-stop process is outside the specified time limit and therefore is late. This consideration will take into account whether there was a good reason for the late information, such as the impact of trauma, but where there are no good reasons, an individual’s credibility is damaged due to the provision of late information.

[Stuart C. McDonald]

The Minister referred to abusing the process but he has not said much about what evidence there is for this problem. What is the scale of it? Much like statelessness, perhaps he could write to us with the evidence of what it is that the Government are trying to get at here. The big problem is the three-year delay for making decisions. Is not that the problem rather than anything that the Minister has referred to?

[Tom Pursglove]

I recognise the invitation to write with more detail around this and I am happy to do that. That would be advantageous to the Committee. Given that time is getting on and we want to continue to make progress, I am very happy to take that request back to the Department. I will provide that information.

The Government will ensure that any changes to processes as a result of these measures are designed in a way that accounts for the impact of trauma. This includes ensuring that individuals working in the system are aware of the factors that can affect the task of obtaining information such as the effects traumatic events can have on people’s ability to accurately recall such events. This assessment will be set out in guidance for decision makers and we will engage stakeholders as we develop it. We will continue to consider all referrals on a case-by-case basis to ensure that support is tailored to the needs of genuine victims.

Nationality and Borders Bill (Tenth sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[Stuart C. McDonald]

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

“(2A) The Secretary of State must accept that there are good reasons for P making the claim on or after the cut-off date where—

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

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

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

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

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

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

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

This amendment defines ”good reasons” for the purposes of section 82A(2) of the Nationality, Immigration and Asylum Act 2002 (as inserted by this Bill).

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

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

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

[Tom Pursglove]

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

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

[Stuart C. McDonald]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Tom Pursglove]

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

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23

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

[Stuart C. McDonald]

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

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

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

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[Tom Pursglove]

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

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

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

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

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

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

[Stuart C. McDonald]

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

[Tom Pursglove]

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

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

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

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

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[Tom Pursglove]

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

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

[Stuart C. McDonald]

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

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

Amendment, by leave, withdrawn.

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

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

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

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

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

(d) the claimant has experienced sexual violence;

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

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

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

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

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

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

Question put, That the amendment be made.

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[Tom Pursglove]

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

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

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

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

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

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

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

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

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

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

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

[Stuart C. McDonald]

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

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

Amendment, by leave, withdrawn.

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[Tom Pursglove]

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

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

[Stuart C. McDonald]

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

[Tom Pursglove]

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

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

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

--- Later in debate ---

[Stuart C. McDonald]

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

[Tom Pursglove]

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

--- Later in debate ---

[Stuart C. McDonald]

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

[Tom Pursglove]

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

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

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

--- Later in debate ---

[Tom Pursglove]

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

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

[Stuart C. McDonald]

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

[Tom Pursglove]

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

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

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

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

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[Stuart C. McDonald]

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

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

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

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

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

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

To use the UNHCR’s own words:

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

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

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

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

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

[Tom Pursglove]

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

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

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[Stuart C. McDonald]

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

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

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

[Tom Pursglove]

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

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

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

[Stuart C. McDonald]

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

[Tom Pursglove]

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

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

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

[Stuart C. McDonald]

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

[Tom Pursglove]

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

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

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

[Stuart C. McDonald]

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

Amendment, by leave, withdrawn.

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

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[Stuart C. McDonald]

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

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

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

[Tom Pursglove]

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

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

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

[Stuart C. McDonald]

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

Question put, That the amendment be made.

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[Stuart C. McDonald]

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

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

[Tom Pursglove]

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

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

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

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

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

[Stuart C. McDonald]

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

Amendment, by leave, withdrawn.

[Stuart C. McDonald]

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

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

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

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

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

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

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

[Tom Pursglove]

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

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

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

[Stuart C. McDonald]

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

Amendment, by leave, withdrawn.

Clause 34 ordered to stand part of the Bill.

Clause 35

Article 33(2): particularly serious crime

--- Later in debate ---

[Tom Pursglove]

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

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

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

[Stuart C. McDonald]

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

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.

Clause 36

Interpretation of Part 2

--- Later in debate ---

[Tom Pursglove]

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

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

[Stuart C. McDonald]

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

Question put, That the amendment be made.

Nationality and Borders Bill (Ninth sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[Tom Pursglove]

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

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

[Stuart C. McDonald]

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

[Tom Pursglove]

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

--- Later in debate ---

[Tom Pursglove]

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

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

[Stuart C. McDonald]

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

[Tom Pursglove]

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

Amendments 18 and 22 to 25, taken together, seek to narrow the meaning of whether we consider an individual to have a connection to a safe third country, and therefore whether it is appropriate to consider them inadmissible. If individuals have travelled via or have connections to safe countries where it is reasonable to expect them to have claimed asylum, they should do so, rather than making dangerous and unnecessary onward journeys to the UK.

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

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

--- Later in debate ---

[Tom Pursglove]

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

[Stuart C. McDonald]

rose—

[Tom Pursglove]

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

[Stuart C. McDonald]

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

[Tom Pursglove]

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

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

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

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

--- Later in debate ---

[Tom Pursglove]

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

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

[Stuart C. McDonald]

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

Question put, That the amendment be made.

--- Later in debate ---

[Tom Pursglove]

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

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

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

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

By introducing a statutory requirement to provide evidence before a specified date, clause 16 will contribute to the swift resolution of protection and human rights claims, enabling decision makers to consider all the evidence up front and, where appropriate, grant leave. However, we recognise that it may be harder for some people to engage in the process. That may be as a result of trauma they have experienced, a lack of trust in the authorities, or because of the sensitive and personal nature of their claim. That is why clause 16, together with clauses 17 and 23, allows for good reasons why evidence might be provided late. As I say, what constitutes good reasons has not been defined in the Bill. It would be impractical to legislate for every case type where someone may have good reasons for not previously disclosing evidence in relation to their protection claim.

[Stuart C. McDonald]

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

--- Later in debate ---

[Tom Pursglove]

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

[Stuart C. McDonald]

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

Amendment, by leave, withdrawn.

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

Nationality and Borders Bill (Eighth sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Thursday 21st October 2021 Public Bill Committees

[Tom Pursglove]

I thank the hon. Gentleman for intervening again. I will come on to his point substantively when I speak to clause stand part. Meanwhile, I invite the Opposition Members to withdraw the amendments.

I do not intend to give a long stand part speech, because we have had a wide-ranging and substantive debate on the clause. It is fair to say that many views have been expressed. I do not remotely doubt their sincerity, but I hope that that acknowledgement of sincerity is extended to all Members, regardless of their views on the matter. When Members come to this House, at the forefront of their minds is wanting to do what they believe to be right. Members on the Government side have equally strongly and sincerely held views on the matters that we are debating, and we believe that the approach we are advocating is the right one.

[Stuart C. McDonald]

I am quite happy to say that all Members are doing what we think is right, though of course we might think each other misguided. I am concerned that the Minister is not going to go into detail about the issues—

[Tom Pursglove]

I am.

[Stuart C. McDonald]

I thought the Minister was suggesting that the debate would no longer go on.

[Tom Pursglove]

That is precisely the point that I wanted to focus on before concluding deliberation of the clause. Views have been expressed about differentiation in the way that we are proposing and about its compatibility with our international obligations. I do not agree with the assessment expressed by various Opposition Members: I argue that the differentiation policy is in line with our international obligations, including the refugee convention and the European convention on human rights. Of course, it is for Parliament to determine precisely what is meant by our international obligations, subject only to the principles of treaty interpretation in the Vienna convention. That is precisely what we are doing in the Bill.

I want to say something briefly about people seeking asylum in the first safe country that they reach, the importance of that principle and its relevance in the international context, because there has been a lot of debate on the issue. It is self-evident that those in need of protection should claim in the first safe country that they reach. That is without question the fastest route to safety. The first-safe-country principle is widely recognised internationally, and has been for many years, as my hon. Friend the Member for Dudley South alluded to in his intervention on the shadow Minister, who slightly surprised me by being so willing to condemn the approach taken by the last Labour Government on that principle. It is a long-established principle, which successive Governments have had at the forefront of their minds when looking at and legislating on such matters.

[Stuart C. McDonald]

Where does the Minister find this principle and what is it derived from? The overwhelming majority of refugees do claim asylum in the first safe country that they come to. Where exactly is he deriving the principle from?

[Tom Pursglove]

One thing that occurred to me throughout the debate was why any Member of this House would feel that it was necessary for anyone to get into a small boat on the French coastline in order to come to the United Kingdom. France is without doubt a safe country, and I like to think that we could recognise that across the House. Those journeys are completely unnecessary against that backdrop. I am staggered that that point is not recognised more widely. Based on some of the remarks we have heard, one might think that that was not the case. In my mind and those of my colleagues, there is absolutely no need for anyone to get into a small boat to try and cross the English channel or to take irregular journeys.

On the point about what this relates to, the principle is fundamental in the common European asylum system. Without enforcement of it, we simply encourage criminal gangs and smugglers to continue to exploit vulnerable people, and I make no apology for my determination, and that of the Home Secretary and the Government as a whole, to bring these evil criminal gangs to justice and to stop the dangerous channel crossings. We have to stop them, for the reasons that my hon. Friend the Member for Stoke-on-Trent North alluded to. We have a moral obligation to do that, and that is what the measures in the Bill, and the wider package of measures that we talk about very often in the House, are seeking to achieve.

--- Later in debate ---

[Stuart C. McDonald]

I would like to respond briefly to the debate, which has been wide-ranging. I have to express some frustration, because the Minister said he would address in detail the reasons he thought the provision is in compliance with the refugee convention. I do not think he said anything at all about that. I appreciate that he has already undertaken to write several letters. Could he write another that explains how article 23 of the refugee convention, which requires equal treatment with nationals in access to social security, can possibly be consistent with a clause allowing the Secretary of State to treat people unequally? All the points we have made about the lawfulness of the Bill have not been addressed. I would be grateful if the Minister would do so.

During the debate we lost sight a couple of times of what we are talking about, which is people who are refugees. Sometimes people refer to genuine refugees, and we are talking about genuine refugees, who, by definition, have been assessed by the Home Office as such. The clause enables the Secretary of State to essentially treat them like trash—to withdraw access to public funds, to leave them in limbo and keep them separate from their families. While we support all reasonable measures to stop the crossings, we draw the line at treating the victims of these people smugglers like trash.

In actual fact, the British public are with us. Public opinion polling shows that people are sympathetic to refugees, and I think they will be upset when they find out that this is how refugees will be treated. I ask the Minister to engage with the UN High Commissioner for Refugees on the legality of the measures. These are hugely important concerns for a number of reasons, so I hope he will engage with him.

[Tom Pursglove]

I have a meeting coming up with him in which I fully suspect we will talk about these measures.

[Stuart C. McDonald]

I have no doubt about it. That is appreciated. On the effectiveness of these measures, reference has been made to how this would disincentivise crossings. Again, there is no Home Office analysis to show that that would be the case. In fact, Home Office analysis is to the contrary. Where is the analysis to show that disincentives will work? We need to see analysis of what the Home Office think the incentives that make people do this are. As we have said, it is things like family, a history with the United Kingdom or speaking the language. None of those will be changed by the Bill. The Secretary of State will not change the incentives that bring people here in the first place.

The numbers are challenging, but in the grand scheme of things the number of asylum seekers in the United Kingdom is tiny. Most folk do not claim asylum here. That is not the issue. Yes, we want to stop them making dangerous journeys, because none of us want to see lives put at risk, but what has been proposed here goes way beyond what is acceptable.

Question put, That the amendment be made.

--- Later in debate ---

[Stuart C. McDonald]

It is good to see you in the Chair again, Sir Roger. I rise to speak in support of amendment 98 and the other amendments in this group, but against the clause standing part of the Bill.

Clause 11 brings us to the question of how we accommodate asylum seekers, including, of course, the Uyghur, the persecuted Christian and the Syrian I keep referring to. Precisely how they are accommodated can have a profound impact on them. When I had the pleasure to be co-opted on to the Public Accounts Committee for a day back in October 2020 for an evidence session with the permanent secretary of the Home Office, I asked him whether there was a commitment at the Home Office to return to a reliance on community dispersal and a target to end hotel use by a certain date, and to end the use of military barracks as detention centres. He responded:

“There is not a target date, but we are obviously keen to do those things as soon as possible. Both those measures—the use of hotels and the use of other assets owned by the Government, including by the Ministry of Defence—are temporary, to take account of the surge in demand.”

He went on to outline various measures through which that would happen, including faster decisions and fairer distribution models. When he came before the Home Affairs Committee recently, he maintained that that was still the Department’s intention.

It would be reassuring to hear from the Minister today that he and the Secretary of State intend to commit to that model and that goal. Community dispersal is definitely the best system, although I accept that its current operation is far from ideal, as reports from the Home Affairs Committee have made clear. The system gives local authorities immense responsibilities, but few powers and even less by way of resources with which to fulfil those responsibilities. At the same time, significant problems with inappropriate and poor-quality accommodation have been identified.

We need a Bill that addresses those challenges. If this Bill did so, it would undoubtedly expand the capacity in dispersed accommodation. If it did that, the Bill would have our support and I would stop defending councils that did not participate in dispersal. To that end, amendment 17 calls for the Secretary of State to report each year on the types of institution in which asylum seekers are being housed and the steps that are being taken towards realising the goal of maximising the use of dispersal accommodation, including the financial support being offered to councils. Surely the Minister cannot find anything objectionable in that, if maximising the use of dispersal accommodation is genuinely the Government’s goal.

The problem is that the Bill tends to suggest, as does a lot of other evidence, that the Government are not pursuing that goal and are more interested in taking a different route. The Minister has to explain why this clause exists if the Government want to opt for dispersal accommodation as their central goal. The available evidence tells us that large-scale institutional accommodation centres are, by a distance, a disastrous alternative. That is putting it far too nicely when it comes to what happened at Napier Barracks, and yet correspondence from the Home Secretary to the chair of the Home Affairs Committee, and the explanatory memorandum to the special development order that extended Napier’s use, expressly suggests that Napier is supposed to be treated as a model or a pilot for the accommodation centres that feature in the Bill.

That is a truly terrifying path to go down, as the totally inappropriate nature of Napier Barracks is well documented in numerous reports and the High Court judgment, which was described as finding that

“the arrangements and conditions in which asylum seekers were held, posed significant risks that their physical and mental health would be harmed.”

According to the findings, Napier Barracks was overcrowded and felt like a prison. For residents, the environment was reminiscent of previous experiences of detention in places where they were tortured. Dormitory accommodation meant there was no privacy or quiet, and sleep was interrupted repeatedly. Cleaning was poor, and the inadequate shower facilities were frequently broken, unusable, dirty or unsanitary. They were also communal, which was particularly difficult for those with visible scarring from torture.

The all-party parliamentary group on immigration detention has highlighted extensive testimony that backs up the judgment of the High Court. The group has identified problems with poor Home Office identification and safeguarding of vulnerable people, and repeated instances of self-harm and attempted suicide on site —in short,

“profoundly negative impacts…on the mental health of residents, many of whom were already vulnerable.”

That all shows precisely why we should not go down this route, and why this clause should not stand part of the Bill.

Most of the remaining amendments in this group challenge the Minister to outline more about what the Home Office has in mind on how these centres will look and operate. Amendment 98 poses a question to the Minister. Can he tell us who will be placed in these accommodation centres? Will it be women and children? Will it be people with physical disabilities? Will it be individuals who are suspected to be survivors of modern slavery or trafficking? Will it be survivors of torture? Will it be LGBT people?

A Home Office policy document suggests that such groups should not be accommodated at Napier, so I hope it will not be difficult for the Government to agree to such an amendment. However, there is a challenge; as I alluded to earlier, there have been multiple examples of where that policy does not appear to have been appropriately adhered to, and we require reassurance that that will be done properly.

[Tom Pursglove]

I hope I can provide the hon. Gentleman with some clarification at this early juncture. We have no intention to accommodate children in accommodation centres. More broadly, decisions will be made on a case-by-case basis, as set out in policy, in relation to other individuals. I hope that gives him the assurance he seeks.

[Stuart C. McDonald]

It gives me reassurance that children will not be housed in such accommodation, and I think all hon. Members will welcome that. However, we are again being asked, essentially, to legislate blind. As parliamentarians, we are repeatedly told that all sorts of important information will be set out in guidance and in immigration rules, but before we give the Government the power to go ahead, we must least be told what they intend to put in that guidance and those immigration rules.

All sorts of other questions that I have asked—about people with physical or mental health problems, and survivors of modern slavery and trafficking—have yet to be answered. How soon do the Government want to put these people in such accommodation? I want to hear the answers before the Committee is asked to vote on whether the Bill should contain the protection that we propose.

Amendment 103—it is probably redundant in light of the Minister’s welcome reassurance—enables us to ask how, if there were to be children in accommodation centres, those children would be educated. Section 36 of the Nationality, Immigration and Asylum Act 2002 means that most children in such centres cannot attend state schools. This amendment would remove that restriction, but I am pleased to hear that that question will not arise.

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[Tom Pursglove]

I would like to confirm that that is not relevant, as we are not proposing to accommodate anyone under section 17.

[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.

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[Tom Pursglove]

We have had an extensive and wide-ranging debate covering a host of areas. I thank hon. Members for their contributions. I turn to amendments 16, 17, 98 to 104, 130 and 160.

Amendment 16 seeks to disapply a key part of the clause. As I set out, one of the clause’s aims is to enable wider flexibility so that individuals are supported in accommodation centres for as long as that form of housing and other on-site support and arrangements are appropriate for their individual circumstances. We need flexibility to increase the period of residence in a centre—the current maximum allowed by legislation is nine months—if experience shows it to be too short a period to provide consistent streamlined support. The amendment would prevent that. The Government take seriously our responsibilities to asylum seekers, and I reassure hon. Members that those accommodated in the centres will receive the necessary support to meet their essential living needs.

[Stuart C. McDonald]

Will the Government not at least consider a maximum time limit on the duration of stay?

[Tom Pursglove]

There have been references during the debate to detention. As I set out in an intervention previously, the accommodation centres are not detention. It is very important to establish that again. I want to make the point clear: anyone in one of those accommodation centres is able to leave at any time. It is important to re-establish that.

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[Tom Pursglove]

The hon. Gentleman will be pleased to know that the people who organise my diary have confirmed that I am set to visit Napier in the not-too-distant future. I have been able to be responsive to that point pretty quickly. I will make some progress on his other point, and I hope to be able to visit it very shortly to provide him with the clarification he requires before concluding my remarks. That is my undertaking to him: I will, for the Committee’s benefit, establish the mechanism that will enact our commitment.

Contrary to what amendment 17 seems to imply, it is not the Government’s intention to maximise the number of supported asylum seekers accommodated in flats and houses in the community. I understand that SNP Members take a different view on the matter, so I appreciate that that will come as a disappointment to them. However, it may be more suitable to house certain cohorts of asylum seekers in accommodation centres, and that is why we are setting them up. Where, for example, their protection claims are likely to be found inadmissible and they can quickly be removed to the appropriate third country, it is likely to be much more efficient to place them in an accommodation centre so that the practical arrangements for facilitating their departure, such as dealing with the necessary travel documentation, can take place at the site. That efficiency benefits the individuals as well as the overall asylum system.

One point that has been overlooked during the debate is that the Government’s whole intention around the policy we are seeking to establish is to deal with cases in a much quicker, speedier and—I would argue—more humane way. I think being able to give people certainty sooner is a good thing, and I would like to think that, whatever the outcome of individual cases, spending less time in any form of temporary accommodation can only be a good thing. It is important to recognise that the whole intention of the policy we are trying to develop is to get on with adjudicating on cases sooner.

[Stuart C. McDonald]

It is not the type of accommodation that has led waiting times to spiral out of control. Only three years ago, there was a regular six-month target time—that was all within the dispersal system as well. Putting folk in the accommodation centres has no real impact on decision times. On the contrary, the Minister will know that since January, when the inadmissibility procedures came into place, virtually nobody has ended up being removed. It has just added six months to the waiting time; it has not accelerated anything. It is just a six-month block—that is it—so I do not understand where he is coming from.

[Tom Pursglove]

In the context of the Bill and in the course of our debates, we will revisit the various challenges in our asylum system many times. My hon. Friend the Member for Stoke-on-Trent North made the point earlier that the system is broken, and there is a wide acceptance of that. Undoubtedly, that means that people are left in a state of uncertainty around their circumstances for longer than any of us in this House wish to see.

I can provide clarity to the hon. Member for Bermondsey and Old Southwark on his point about the duty to appoint the group. The answer is that section 33 of the 2002 Act requires the Secretary of State to establish advisory groups for accommodation centres. Napier has not been deemed an accommodation centre at the moment. It is contingency accommodation to manage the high demand for housing that we are undoubtably seeing as a result of the pressures in the system that are a direct consequence of the channel crossings. However, he has that certainty on that particular mechanism.

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[Tom Pursglove]

I dispute that interpretation of the situation at Napier, because Napier does not have the same wrap-around services that we envisage for accommodation centres. For example, the accommodation centres that we will seek to deliver will have significant caseworking functions built within them. That is a marked difference to Napier. Again, I am visiting Napier in a few weeks’ time and I will be interested to hear from the people there and to talk to the officials managing the accommodation to listen to their experiences. As I have said, and I think this is an important point, there is always a need to reflect on the appropriateness of the provisions in place and on whether governance and oversight arrangements remain adequate. That is something that we keep under constant review. I note with interest the suggestions that have been alluded to, and I will happily feed them back more broadly at the Home Office.

I want to make some progress, because I am conscious that time is marching on. The numbers of asylum seekers in different types of accommodation—if that is of interest to parliamentarians—can be obtained through existing channels, such as correspondence or parliamentary questions, so an annual report setting this information out is unnecessary. Amendment 98 is also unnecessary because there are no plans to place those with children in accommodation centres, and all other cases will only be placed in a centre following an individual assessment that the centre is suitable for them and that they will be safe.

Whether or not groups with the characteristics listed in the amendment are suitable to be supported at a particular accommodation centre will depend on a number of factors. These include their personal circumstances and vulnerabilities, and the facilities available at the particular site or in the particular area. It is not sensible to rule out large cohorts of cases from ever being placed in an accommodated centre in any circumstance, especially if their asylum case is more likely to be resolved quickly in a centre, which of course is in their best interests. I re-emphasise that our intention remains to get to a place where cases are processed quicker than they are at the moment, and that is something that we all should welcome.

[Stuart C. McDonald]

Where is the evidence that doing this in accommodation centres speeds things up? We have had dispersal systems for years and on some recent occasions the waiting times have been absolutely outrageous, but a few years back they were perfectly acceptable. We can have fast decision making and we all support that, but that does not require these terrible accommodation centres to be set up.

[Tom Pursglove]

The hon. Member and I fundamentally disagree on this point. I think that there is value in having accommodation centres that provide accommodation but also ensure that caseworking facilities are available alongside. That aids in the processing of cases more quickly. That is a sensible step forward, and something that I endorse. I think it is the right thing to do in these circumstances.

Amendment 99 would also undermine a key objective that we are trying to achieve through setting up accommodation centres, which is to resolve asylum cases more quickly by putting casework and other services on site. This speaks to the point that I have been making; there is therefore no rationale for restricting the number of people who will benefit from these improvements to 100 individuals per site.

Additionally, there is no reason why unrelated asylum seekers cannot share sleeping quarters, provided that they are the same sex. This is already allowed for in the asylum accommodation system. Those in flats or houses, for example, may be required to share bedrooms. Some asylum seekers might require their own room—for example, the current policy provides that those receiving treatment from the Medical Foundation for the Care of Victims of Torture should generally not share sleeping quarters with strangers—but that is because of their individual circumstances. I re-emphasise that appropriate decisions must be made on a case-by-case basis and, where circumstances require, appropriate arrangements should be made.

Amendment 100 seems to be based on a misunder-standing—I intervened on the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East on this point earlier. We are not proposing to accommodate anyone in the centres under the powers in section 17 of the 2002 Act. Asylum seekers will be accommodated in the centres under section 95 of the Immigration and Asylum Act 1999, or section 98 of the 1999 Act, pending consideration of an application for section 95 support. If the application is refused, there will be a right of appeal in the normal way.

Amendments 101 and 130 are both similar in theme to amendment 16. I disagree that the normal period of residence in an accommodation centre should be no more than three months. It may be that a three month period is appropriate in some cases, either because of the individual circumstances of the asylum seeker or the nature of the facilities at the site. However, as I have explained, we need the flexibility to increase the period of residence in a centre if experience shows this period is too short to provide consistent, streamlined support.

Amendment 102 would effectively give local authorities a veto on any proposals to set up accommodation centres in their areas. That is not appropriate. It is right, of course, that local authorities are fully consulted about such proposals and their views about local impacts and other matters given considerable weight.

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[Tom Pursglove]

I am afraid that I do not have those figures to hand, but I will take that request away—very gladly—and I will share that information with the Committee when I have it.

Clause 11 amends section 25 of the Nationality, Immigration and Asylum Act 2002, so that these periods of time may be changed, by order, to allow for longer or shorter periods. The clause will also provide the flexibility to ensure that individuals remain in accommodation centres for as long as that form of housing and the other support and arrangements on site are appropriate to their circumstances. I encourage the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw his amendment.

[Stuart C. McDonald]

On this occasion, I certainly cannot complain that I have not had answers; I may absolutely despair about what those answers were, but the Minister has certainly provided the information.

I am genuinely sad that covid and the stress that it has put on the dispersal system means that the Home Office now appears to be abandoning that system altogether when it has not been justified that that is the correct option. I very much fear that in a few years’ time this will come back to cause the Government problems; more importantly, it will be devastating for lots of people who will be placed in this accommodation.

However, I have the answers, so I do not need to press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 104, in clause 11, page 14, line 41, at end insert—

“(22B) Accommodation Centres, whether for supported asylum seekers or failed asylum seekers shall not allow for limitations upon a supported person’s right—

(a) to enter or to leave at any time;

(b) to receive visitors of their choice at any time; or

(c) to use communications equipment such as telephones, computers or video equipment.

(22C) Accommodation Centres shall provide supported persons with access to a complaints procedure and procedures for appealing any decisions that may restrict a supported person’s claim to freedoms not limited by their conditions of bail.

(22D) Persons supported in Accommodation Centres shall be informed of the conditions of their bail in writing, and shall be provided with means of identifying themselves are their place of residence.”—(Bambos Charalambous.)

This amendment aims to distinguish Accommodation Centres from places of detention by introducing rights to persons supported at these Centres, and to require persons in Accommodation Centres to be informed of their bail conditions and provided with means of identifying themselves.

Nationality and Borders Bill (Seventh sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Thursday 21st October 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)]

I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for all their hard work in this area, and for their engaging speeches. I do not doubt for a moment the sincerity of their contributions. Nobody should be in any doubt about the sincerity of the deeply felt views expressed by all Members of this House, who I genuinely believe want to see appropriate action to tackle dangerous channel crossings. I wanted to make that point at the outset, because it is important to remember that in the context of today’s debate.

As hon. Members will know, the clauses that they seek to amend are crucial to the Government’s intention to uphold the first safe country of asylum principle. In that respect, the clauses are designed to deter dangerous journeys across Europe by no longer treating migrants who come directly to the UK and claim without delay in the same way as those who do not. I am sure that hon. Members will agree that we must do everything in our power to stop people putting their lives in the hands of smugglers and making extremely perilous journeys across the channel.

[Stuart C. McDonald]

I echo what the Minister says: everybody present wants to see an end to such crossings. He used the word “migrants” a couple of times, but as the Bill reflects we are talking about people who have gone through the refugee process. They are refugees, and it is very important that in this debate we speak about the fact that this is happening to refugees—hence the term “group 2 refugee”.

[Tom Pursglove]

I am grateful to the hon. Gentleman for his intervention.

I will take amendments 88 to 95 in one go, as they individually seek to remove key constituent parts of clause 10 in order to prevent the exercise of the powers to differentiate. That is not the effect of the amendments as drafted, but I shall none the less assume that the intent is as I just set out. Hon. Members are no doubt familiar by now with the way in which the policy is proposed to operate. For the avoidance of doubt, though, clause 10 provides a non-exhaustive list of examples of where differential treatment may be applied to group 2 refugees—in other words, those who do not meet the requirements set out in clause 10, which are based on criteria set out in article 31 of the refugee convention. That includes in relation to the length of leave issued, requirements to achieve settlement, recourse to public funds and family reunion rights.

As mentioned, the clause is extremely important because it acts on our commitment to do everything that we can to deter people from making dangerous journeys to the UK at the hands of smugglers, when they could claim asylum in a safe third country. I will pick up on a number of important points that were made, as it is right to provide clarification on them.

First, the question was raised of how the Secretary of State intends to use these powers. As we talked about in relation to the earlier provisions in the Bill, this will be set out in the normal way in the immigration rules and guidance in due course.

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[Tom Pursglove]

The hon. Gentleman will appreciate some of the genuine difficulties for people in trying to leave Afghanistan—[Interruption]—and doing so in the safest way possible—[Interruption.] He keeps interrupting from a sedentary position. Will he let me finish the point that I am trying to make?

The bottom line is that we are firmly committed to that resettlement scheme. We will announce details of it as quickly as possible, having taken proper account of the very real difficulties that exist in getting people safely, as far as that is possible, out of Afghanistan. Ministers and officials are working tirelessly to work that up in an appropriate manner.

[Stuart C. McDonald]

rose—

[Tom Pursglove]

I will give way to the hon. Gentleman as well, because I want to be generous and to hear what he has to say.

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[Stuart C. McDonald]

The Minister is being generous. I want to push things back to some of the questions—

[Tom Pursglove]

I have some answers on those to come.

[Stuart C. McDonald]

Great, because the purpose of the amendments is to probe exactly how these very broad powers will be used. It will be useful if he could talk about some of what the Government intend.

[Tom Pursglove]

I am keen to do just that. I have made the point about safe and legal routes. There are many examples in the past and that are still active.

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[Stuart C. McDonald]

I am slightly frustrated—actually, pretty frustrated—that we have not managed to tease out more about what the Government intend. We will no doubt come back to the point about article 31 justifying the provision.

We are being asked to hand hugely significant and broad powers to the Home Secretary, and we are being told, “Well, everything will be set out in immigration rules and guidance,” when we all know that scrutiny and opportunities to amend such provisions are incredibly limited. Let me ask the Minister this: what more do I know now about the Government’s intentions than I knew before half-past 11 this morning? Not very much. I am not sure I even understand the answer in relation to no recourse to public funds. I do not see how a person who is a refugee would still be on section 95 support; having been recognised as a refugee, such a person would obviously move on. At least I get the sense that there would be some sort of automatic decision not to put an NRPF condition on them, but I am none the wiser about how some of the other powers will be used.

[Tom Pursglove]

As I have said previously, I am very keen to be helpful to the Committee, so if I may, I will study Hansard to look back at the questions that the hon. Gentleman posed on this matter. I will gladly write to him to clarify the position and try to provide further detail.

[Stuart C. McDonald]

It would be hugely helpful for Members of this House, ahead of Report, and for Members of the other place, who will be wanting to scrutinise the Government’s intentions, to be told more about that support and about precisely how the clauses on family reunion can be consistent with article 8, and the answers to my questions about leave. That was the purpose of tabling the amendments, so if the Minister undertakes to do that, there is no reason to put anything to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald]

I beg to move amendment 15, in clause 10, page 13, line 34, at end insert—

“(7A) An Afghan national who is a refugee because they face a risk of persecution by the Taliban is not to be treated as a Group 2 refugee and in particular—

(a) must not face a restriction on their leave to enter compared to group 1 refugees;

(b) must have access to indefinite leave to remain on the same basis as group 1 refugees;

(c) must not have no recourse to public funds conditions attached to any leave to enter or remain given to them; and

(d) must have access to family reunion on the same basis as group 1 refugees.”

This amendment would prevent the Secretary of State from treating Afghan refugees at risk of persecution by the Taliban as Group 2 refugees.

I can be brief, because a lot of the territory in relation to Afghanistan was covered in the previous debate. Again, Members across this House have been forceful, powerful advocates. Whatever our views on the manner of the withdrawal, its timing and so on, I do not doubt for a minute that every Member of the House intended to ensure the UK did what could be done to assist the people of Afghanistan. The problem with this Bill, as far as I can see, is that that generosity of spirit, that determination to help, seems to come to a shuddering halt should a person from Afghanistan end up claiming asylum in this country.

The amendment confronts hon. Members with, to use a Home Office expression, a face behind the case. We are talking about creating an exemption where the Home Office has assessed a person’s case and accepted that they are at risk of persecution from the Taliban in Afghanistan, such that it will not be permissible for the Secretary of State to discriminate against them—to make them subject to no recourse to public funds, to deny them family reunion, to refuse to give them settlement after five years and to perpetrate all the other discriminations that the clause allows. In a sense, it would be nonsensical to create an exception only for such people, but the amendment is designed simply to confront hon. Members with the fact that that is who we are talking about. Those discriminations will apply to these people, whom we have all been championing, just as they would to any other asylum seeker. I do not need to say any more than that, but I will press the amendment to a Division.

[Tom Pursglove]

I do not think it would be appropriate for clause 10 to include an exemption from group 2 refugee conditions for Afghan national refugees. Although I have great sympathy for the plight of Afghan citizens who are fleeing the brutal reign of the Taliban, a blanket exemption for Afghan citizens who are recognised as refugees would be inappropriate for two reasons.

First, we cannot exempt any particular nationality, because situations of conflict and repression are fluid. There may come a time when that country is no longer unsafe and those from it who claim asylum are no longer genuinely in need of protection; I am sure that is something that we all wish to see. If there were still an exemption for them in primary legislation, it would serve as a huge pull factor to the UK for migrants seeking to claim asylum in order to work or otherwise make a new life in the UK.

Secondly, any blanket exemption would inevitably lead to people posing as Afghans in an attempt to benefit from the hon. Gentleman’s very principled generosity. That would, perversely, prevent us from protecting Afghans who were genuinely in need. I am sure hon. Members agree that that would be in no one’s interest.

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[Tom Pursglove]

I am very happy to reflect the sentiment in my conversations with my ministerial colleague. As I was about to say before I took the intervention from the shadow spokesperson, I urge SNP Members to withdraw their amendment.

[Stuart C. McDonald]

For the reasons given by the hon. Member for Sheffield Central in particular, I do not accept the argument about creating incentives. All we are asking is for Afghan asylum seekers to be treated in a few months’ time precisely in the same way as they are treated now, to be given a fair hearing, and, once they are recognised as refugees, to be treated in the same way as other refugees.

I have a second quick point before I conclude. Towards the end of his speech, the Minister referred a couple of times to things being looked at on a case-by-case basis. It is very important that, when we get to the clause stand part debate, he expands on what exactly he means by that. From what I heard from the Home Secretary, my understanding was that clause 10 would apply to Afghans in precisely the same way as it would to everybody else. The Minister’s reference to a case-by-case basis seems to suggest some sort of discretion, whether between nationalities or between individual cases. He has opened up a whole series of questions about how exactly the scheme is going to operate. Perhaps we can revisit that during the clause stand part debate.

I agree with the Minister that it does not make sense for legislation to carve out a particular nationality. However, what makes even less sense, as I said at the outset, is for all of us to be champions of Afghans so long as they are—

[Tom Pursglove]

I am keen to clarify that point. The point that I was making was exactly as I alluded to earlier: that, for example, we would not return someone to a country that is fundamentally unsafe.

[Stuart C. McDonald]

I am grateful for that clarification. I had thought that the Minister was saying that the powers in clause 10 would be applied on a case-by-case basis depending on individual circumstances, rather than what seems to be suggested by the clause: depending on their mode of arrival. He has clarified that what the Home Secretary said was correct: it will apply to Afghans, Uyghurs and everybody else in the same way.

Amendment 15 is not the most perfect or wonderful amendment, but even less perfect are the provisions in the Bill that would see Afghan asylum seekers stripped of public funds, stripped of family reunion rights and treated, frankly, abysmally. I would therefore like to put amendment 15 to a vote.

Question put, That the amendment be made.

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[Stuart C. McDonald]

I will take the amendments in reverse order. To go back to part of Tuesday’s debate about Parliament, rather than the Executive, taking back control, nobody—regardless of whether they were for or against anything else I have said this morning— could deny that these are sweeping powers, with next to no limits or constraints on how they may be used. In theory, the Secretary of State could put everyone up in palaces or prisons, expand or restrict family reunion rights, and give 50 years’ leave or 50 days’ leave. Because it can all be done by changes to the immigration rules, there might as well be no oversight at all.

The process is even weaker than the negative procedure that we use for some statutory instruments. Not since 2008 has a statement of changes to the rules been properly debated by MPs. Although the other place has a better record of holding debates, 87 changes to the immigration rules have been made since 2008 without the procedure being fully invoked. Even if either House disapproves the changes within 40 days, all that means is that the Home Secretary has to lay further rules, making any changes that she thinks appropriate. In short, these are massive powers that could fundamentally change the asylum system in the UK. More important, they will have a profound impact on hundreds of thousands of people. The powers need proper oversight, which is essentially what amendment 97 supplies.

Amendment 96 is designed to retrieve a sliver of hope from an otherwise horrendous clause. Even if the Government are hellbent on proceeding down this road, by their own logic they surely cannot apply these changes and disincentives retrospectively to somebody who has already claimed asylum. The Minister says that the Bill is about disincentives to stop people crossing, or coming by other dangerous routes. I do not think that that will work, or that it is right, appropriate or ethical to do that. Although the Government take the opposite view, they cannot possible argue that we can disincentivise someone who is already here.

There are 70,000 people in the asylum system, many of whom claimed for refugee status many months ago. It is a source of stress and anxiety, according to organisations that work with refugees, such as the British Red Cross, that the threat of being put into limbo, and of family separation and destitution—all the things that we have just spoken about—will hang over them if the provisions of the Bill apply to them.

[Tom Pursglove]

I hope that I can give the hon. Gentleman the reassurance he seeks in relation to amendment 96. It has never been our intention to apply differentiation retrospectively.

[Stuart C. McDonald]

That is a hugely welcome assurance, which many people will be very pleased to hear. The Minister can say in his response why he objects to that going in the Bill, but, as I say, it will make a profound difference to 70,000 lives, and to family members further afield.

[Tom Pursglove]

I reassure the Committee that amendment 96, which seeks to ensure that only asylum claims made after commencement are considered under clause 10, is not needed. For many good reasons, not least for purposes of practicality, we have always intended to apply clause 10 only to asylum claims made after commencement. The position is similar in respect of amendment 97, which seeks to ensure that any regulations required to implement the policy should be subject to the affirmative procedure in Parliament. Clause 10(8) is not a regulation-making power; rather, it is a power to make immigration rules. In any event, the amendment is not needed since the rules are subject to their own parliamentary procedure, set out in section 3(2) of the Immigration Act 1971. Parliamentarians may pray against them within a 40-day period. I therefore urge the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw his amendment.

[Stuart C. McDonald]

I am grateful to the Minister for his response. After a day and a half of debate, I feel I have achieved one small positive, which is reassurance in relation to retrospective application of clause 10. That is welcome. I have moved millions of amendments to Bills over the years in relation to scrutiny and oversight of immigration legislation, and they have all been rejected, so I am not going to press this to a vote. However, I make the point that if we parliamentarians are serious about scrutinising legislation and profound changes that have an impact on people’s lives, we have to come up with better ways of scrutinising what goes on in the immigration system. I shall leave that debate for another day. Having made my point, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nationality and Borders Bill (Sixth sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[Tom Pursglove]

I will deal with each of the amendments proposed, and then I will of course pick up on a number of the points, questions and challenges that have been raised throughout the course of this debate.

I thank the hon. Members for Enfield, Southgate and for Halifax for having tabled amendment 35, which would allow a person to become a British citizen automatically following their adoption in the UK if the order was made after the age of 18 but before the age of 19, but the adoption proceedings started before their 18th birthday. I have noted the unusual situation, highlighted by hon. Members, in which newly adopted young people can find themselves as a result of differences between the Adoption and Children Act 2002 and the British Nationality Act 1981. An adopted person can automatically acquire British citizenship, provided they are under 18 on the date the adoption order is made. However, under the 2002 Act, it is possible for an adoption order to be made where someone is already 18 years old but has not yet turned 19.

I am aware of cases in which individuals are affected by those nationality provisions, and I have some sympathy for them. However, I am also conscious that a person aged 18 will normally be capable of making their own life choices. At 18, someone can purchase alcohol, accrue debt, join the Army, or vote in an election. From a legal standpoint, at 18, an individual is fully fledged and can theoretically live independently of other family members. It is therefore consistent that a person aged 18 or over who is seeking to acquire British citizenship should normally do so only on the basis of their personal connections with this country, not those of their new family.

I must consider the wider position of adopted children, and I am satisfied that to extend the nationality rules to cover persons who have attained the majority would move nationality out of step with immigration routes. For example, young people over the age of 18 must meet the requirements of the immigration category they are applying in, and are unable to rely on other family members for a claim to residence. I have sympathy for those young adults who feel that they have lost out, but other routes are available that would allow them to choose whether they wish to naturalise or register as British citizens.

Turning to amendment 13, again I thank hon. Members for tabling the amendment and for drawing attention to clause 7, which we believe is a positive move that will allow the Home Secretary to grant British citizenship to those who have missed out on acquiring it, potentially due to reasons beyond their control. Clause 7 will apply to anyone who

“would have been, or would have been able to become, a British citizen but for—

(a) historical legislative unfairness,

(b) an act or omission of a public authority,”

or their exceptional circumstances. This means that the clause covers not just those who would have become citizens automatically, but those who might have had an entitlement to registration or could have registered or naturalised at the Home Secretary’s discretion. As such, we think it right that the provision remains discretionary, to allow the Home Secretary to take into account the criteria that she might have taken into account at the time.

[Stuart C. McDonald]

I will have to give some further thought to what the Minister has just said. I take the point about people who would have had to register—therefore, there is still an element of discretion. However, will he look again at the case of those who would have automatically had that citizenship and whether there really should be such broad discretion in cases where people have missed out on citizenship because of historical injustice or exceptional circumstances?

--- Later in debate ---

[Tom Pursglove]

We will no doubt debate this in great detail in due course. As I say, we are putting in place an improved access to justice offer more generally through the Bill.

[Stuart C. McDonald]

There is an absolutely fundamental distinction between naturalisation and registration. We are talking about people who would have had an automatic right to citizenship, which is completely different from naturalisation altogether. Again, I am still struggling to understand why there has to be such broad discretion. People have lost their automatic right because of historical injustice, and the danger that has been highlighted by Members is that that will put folk off applying. Will the Minister not even think about some restrictions on the degree of discretion that the Home Secretary has, or at least provide detailed guidance on when she will exercise that in people’s favour?

[Tom Pursglove]

I want to pick up the points that have been raised by the hon. Members for Bermondsey and for Old Southwark and for Cumbernauld, Kilsyth and Kirkintilloch East. Clearly, the guidance is a very important element of the immigration system, so that people can understand very clearly what is required and precisely how cases will be handled. I am always in favour of trying to make such matters more transparent and to improve guidance wherever we can, and that is always ongoing work. I take on board the point that has been raised, and I will certainly reflect on it.

As I say, Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised. This works, and we intend that published guidance will also be available for the new adult registration route. The fact that the Home Secretary is not obliged to naturalise a person does not therefore impact practically on most applicants. However, we want to maintain the ability to refuse applications from people who might meet the requirements, but are nevertheless unsuitable to become British citizens.

Where registration is set out in legislation as an entitlement, it needs to be more tightly set out so that there is no doubt as to who does and does not benefit. Because of the historical nature of citizenship and the fact that issues can crop up that we might not have been aware of, we need the flexibility to be able to consider someone’s circumstances without being overly prescriptive. Equally, we recognise that people can be affected by a number of circumstances, which may be difficult to set out in detail. We are not making this a discretionary provision in order to refuse deserving people, but to allow us to respond to situations that cannot reasonably be foreseen.

I understand that hon. Members may wish to seek assurance that people who have missed out in the past will be granted citizenship, but we think that this can be achieved through a discretionary route, which will allow us to take into account all the circumstances of a case. That is why we are introducing the various provisions in the Bill in the first place: to right those historical wrongs. We want this to work.

On amendment 30, again, I thank the hon. Members for tabling the amendment. The new adult discretionary registration provision will allow the Home Secretary to grant British citizenship to anyone who would have been, or would have been able to become, a British citizen, but for historical legislative unfairness, an act or omission of a public authority, or the exceptional circumstances in play. I understand hon. Members’ concerns that that power should be used fairly and consistently, which is right.

Each case will be considered on its own merits, taking into account the particular circumstances of that person, including the reasons they were unable to become a British citizen automatically, through registration or through naturalisation. On that basis it would be unnecessary to have a legislative clause that effectively causes us to treat like cases in a similar way, because applications will be decided in line with the legislation and guidance.

I have already mentioned that we intend to publish caseworker guidance setting out when we expect that this power might be used and the sort of circumstances we will take into account. Of course, that is done very transparently and can be seen by hon. Members and by people out there seeking access to those routes. As I think is my colleagues’ intended purpose in proposing the amendment, that will help to maintain consistency in decision making.

However, I am not convinced that that would be helped by a statutory requirement to produce or amend guidance every time a person with different circumstances is registered. There may be concerns about reflecting an individual’s circumstances in published guidance, even if anonymised. We will reflect the overarching principles in guidance and amend as appropriate. Guidance will continue to be published on the gov.UK website. I can also assure hon. Members that work is done within UK Visas and Immigration to ensure consistency of decision making, particularly when a new route is introduced, and I think that that is right and proper.

I do not think we can commit in statute to publicise any grants of citizenship to people in a similar position. As I have said, we will publish guidance setting out the approach we will take and make it available to potential applicants, but it would not be right to impose a statutory requirement to do so. Indeed, some of those registered will be in unique positions and it would not be possible to identify others who might qualify on the same basis.

The reporting obligation set out in the amendment would require the Home Secretary each year to report any historical legislative unfairness that had been identified in registering a person under clause 7 and say how she intends to correct it. Perhaps it would help to clarify that the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario.

--- Later in debate ---

[Tom Pursglove]

The clause amends the provision for registering a child as a British citizen or British overseas territories citizen when the child was born in the UK or a territory and has been stateless since birth. Although it applies to both British citizenship and BOTC, it addresses an issue specific to the UK, so I am going to talk about British citizenship. However, parallel changes will be made in relation to BOTC.

It may help if I put the issue in the context of all children born in the United Kingdom. Since 1983, a child born in the UK will be a British citizen automatically only if one of their parents is a British citizen, is settled in the United Kingdom or, from 13 January 2010, is a member of the armed forces.

“Settled” is defined in the British Nationality Act 1981 as being ordinarily resident in the United Kingdom and not subject to an immigration time restriction on their stay. That effectively excludes those whose parents only have limited leave to remain or are here illegally. Those exempt from immigration control because of diplomatic service or as members of visiting forces are also not regarded as settled. Any child born in the United Kingdom after 1 January 1983 who was not a British citizen at birth has an entitlement to register as a British citizen if the parent becomes a British citizen or settled in the UK, if the parent joins the armed forces, or if the child lives here for the first 10 years of their life.

In addition, there is provision for children born in the UK who would otherwise be stateless to acquire citizenship. If a child is born in the UK to a parent who is a British overseas territories citizen, British overseas citizen or British subject and would otherwise be stateless, they will acquire the same nationality as the parent. Alternatively, if a child is born in the UK and is, and has always been, stateless, they can apply to be registered as a British citizen before their 22nd birthday based on a period of five years’ residence. Those provisions enable us to meet our obligations under the convention on the reduction of statelessness. That means that if a child is stateless and has had no other citizenship or nationality from birth, they can effectively be registered on reaching the age of five—rather than after the age of 10, like other children born in the UK.

The UK, like many other countries, allows for citizenship to be acquired by descent by a child born abroad to a parent who holds that status by birth. Under most countries’ citizenship laws that happens automatically, but some countries require the parents to register a child’s birth for the child to access citizenship. That is the case for India and Sri Lanka, where a child’s birth needs to be registered at a high commission if they are to be recognised as a citizen.

We are aware that increasing numbers of non-settled parents in the UK are actively deciding not to register their child’s birth at the embassy or high commission, and thus failing to secure their child’s entitlement to their parents’ nationality by descent.

[Stuart C. McDonald]

The explanatory note just says that there have been cases. This is a very serious change. Can the Minister give us examples of analysis that has been done and the types of circumstances in which such decisions are taking place? Tell us about the scale. I see no evidence of a significant problem, whereas I do see that the clause could cause significant harm.

Nationality and Borders Bill (Fifth sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[Tom Pursglove]

I will of course be delighted to receive any such examples. I genuinely think that, as with so many cases of immigration law, the underpinning guidance plays an important role in making it clear, in plain English that people can understand, precisely what various aspects of the law entail. I am satisfied with the current wording of the clause.

[Stuart C. McDonald]

I understand what the Minister says about the wording doing a job in statute, but will he say whether he thinks that the wording used has any implications for British citizenship as opposed to British overseas territories citizenship? Was a problem with the wording recognised and is that the reason why it was not copied across? Or is this Bill a wee bit different and therefore uses different wording?

[Tom Pursglove]

The short answer, based on my understanding, is no. The connected provision in the Act talks about parents and not the mother and the father, so that is why we think this is the appropriate route to take for BOTCs. I am satisfied that the current wording does what is required so I ask hon. Members not to press their amendments.

--- Later in debate ---

[Tom Pursglove]

I will gladly take away the Committee’s feedback on fees. As I have said, fees are kept under constant review and are subject to parliamentary scrutiny. I have no doubt that members of the Committee, and indeed Members across the House, will want to scrutinise any fees orders and fees regulations that are brought forward, express views on them and, as they see fit, either support them or take issue with them.

To return to the focus of the amendments and the clause, removing these fees during the passage of the Bill would undermine the existing legal framework without proper consideration of sustainability and fairness for the UK taxpayer. It would also reduce clarity in the fees structure by creating an alternative mechanism for controlling fees.

Beginning with amendments 8, 9, 10, 11 and 12, the aim of which is to limit the Secretary of State’s power to charge a fee for applying for British overseas territories citizenship, I can reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that I am sympathetic to the view that a fee should not be charged in cases where a person missed out on becoming a British citizen automatically due to historical anomalies. The provisions in the Bill are about righting historical wrongs, and I can give the Committee my assurance that we will look carefully at where fees should be waived via the fees regulations. However, as I have outlined, that is not a matter for this Bill and it should be remedied through secondary legislation, in line with other changes to immigration and nationality fees.

[Stuart C. McDonald]

My understanding, from the briefing I was given at the weekend, is that in July the Home Office sent a letter to nationality experts stating that the intention was not to charge a fee, but the Minister seems to be saying something different; that there will be fee waivers, rather than no fees at all. We are talking about historical injustices here, so can he be a little more clear? Is the intention not to charge a fee for the applications to which amendments 8 to 11 refer?

[Tom Pursglove]

The hon. Member is always on point in asking pertinent questions. I reiterate the point that the Home Office tends not to charge fees in instances where unfairness or injustice have occurred, and it remains our intention to continue to adopt that approach in relation to the provisions that we are enacting through the Bill. I hope that gives him the reassurance he is seeking.

--- Later in debate ---

[Tom Pursglove]

The hon. Member would be surprised if we did not want to review the situation and take into account fully the judgment of the Supreme Court in due course. I think that it is entirely proper that we take a view on this and that the situation should be reviewed in the light of any judicial ruling handed down. This exchange has been very useful, as it has allowed me to address many of the points that I would have picked up at the end of my remarks.

I turn now to subsection (1) of new clause 16, the aim of which is to limit the Secretary of State’s power to charge a fee for applying for British citizenship and British overseas territories citizenship to the cost to the Secretary of State of processing the application. As I have already outlined, imposing such a requirement would cut across the funding and coherence of the whole system and is not a matter for the Bill.

Subsection (2) would prevent the Secretary of State from charging a fee to register as a British citizen or British overseas territories citizen if the child is being looked after by a local authority. It is important to remember that any child, irrespective of nationality, who is looked after by their local authority can apply for both limited and indefinite leave to remain without being required to pay application fees.

[Stuart C. McDonald]

The Minister is being generous with his time, but I regret that the Home Office appears to have dusted down the same old briefing and he is making the same points that have been made before. He cannot possibly argue that limited leave is some sort of alternative to British citizenship. None of us would accept that; why should these kids?

[Tom Pursglove]

We would argue that the provision ensures no child in local authority care is unable to access leave. We remain of the view that citizenship is not necessary for any individual to work, live, study or access services within the UK. Subsection (3) would prevent the Secretary of State from charging a fee to be registered as a British citizen or British overseas territories citizen that the child or the child’s parent, guardian or carer is unable to afford. That raises similar points to subsection (1) in that imposing such a requirement would cut across the funding and coherence of the whole system and is not a matter for the Bill. Subsection (4) would require the Secretary of State to take steps to raise awareness of rights under the British Nationality Act 1981.

[Stuart C. McDonald]

I have a quick question on the fee waiver. Why is registration for citizenship just about the only thing where there is no fee waiver scheme at all? There is a fee waiver sometimes for the 10-year route to settlement—as ludicrous a system as that is. Why is there no fee waiver system at all even for folk who cannot remotely afford that?

[Tom Pursglove]

I am conscious that I want to get through my remarks on this. I will write to the hon. Member on that point.

[Tom Pursglove]

Again, I do not have the figure to hand, but I will happily take that away and see if I can provide him with a written answer on that point. Information about becoming a British citizen is made available in published guidance on gov.uk and we are committed to ensuring information of this nature is fully accessible for all. I am conscious that we have had quite an extensive debate around fees in general, but I hope what I have said around the provisions in the Bill and the Government’s intentions for handling fees in relation to the nationality measures we are seeking to enact gives comfort to the Committee, and that the hon. Members will feel able to withdraw their amendments.

[Stuart C. McDonald]

I am grateful to all Members for taking part and the Minister for his response. There have been two separate issues. First, on the new registration provision in the Bill, he has provided some assurance that because it is correcting historic injustices the broad intention will be hopefully to avoid a fee. We will hold the Government to that and watch very carefully.

I hear what the Minister says about the fact there is a system of statutory instruments being laid—we all come here and say our piece and then the Government sets a fee pretty much regardless. In theory, that is fine. However, the lesson we learned about the citizenship registration of kids is that in 1981 the then Government and Parliament as a whole made it absolutely clear that profits should not be made on that registration, and that was fine for 20 or 25 years. But then along came successive Governments that decided to ramp it up.

On a principle as fundamental as this, I still think there is a strong case for putting it in the Bill. If a new Government want to change the approach in the future, they can do so, but they will first have to introduce primary legislation to do that. I do insist on amendment 8. I will insist even more strongly on new clause 16.

Oral Answers to Questions

Debate between Tom Pursglove and Stuart C McDonald

Monday 18th October 2021 Commons Chamber

[Mr Speaker]

I call the SNP spokesperson.

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

I and my colleagues, from the bottom of our hearts, send our deepest condolences to the family, friends and colleagues of both Sir David Amess and James Brokenshire. It is fair to say that, in short, everyone knew Sir David and everyone liked and respected him, without exception.

I shadowed James Brokenshire as Immigration Minister in my first year in this place, and he made my job 10 times tougher, not only because of his mastery of the brief, but because he, too, was a person whom it was impossible not to respect and to like and we will sorely miss him.

At the last Home Office questions, the Home Secretary suggested that I had not read the Nationality and Borders Bill when I said that it would see Uyghurs, persecuted Christians and Syrians fleeing war prosecuted and sentenced to prison, but I have read it and that is precisely what clause 37 will do. I welcome the Minister to his place, but if he does not want to see Uyghurs, persecuted Christians and Syrians prosecuted and imprisoned, will he take that clause out of the Bill?

[Tom Pursglove]

I would expect nothing less from the hon. Gentleman given that we are beginning line-by-line consideration of the Bill tomorrow in Committee. I have no doubt that he will have studied every single clause very carefully and will be interrogating me on each of them. We do not want to see anybody persecuted. As I have said previously, as a country and as a Government, we are absolutely determined to make sure that there continue to be safe and legal routes, so that people who qualify can continue to access sanctuary in this country. Also, of course, through our international engagement, we always press home that human rights must be respected and upheld at every turn.

Nationality and Borders Bill (Second sitting)

Debate between Tom Pursglove and Stuart C McDonald

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[Tom Pursglove]

Q I noted the broad support for the national age assessment board approach that we are proposing to try to deal with some of this, but what impact do you believe the current judicial review-based processes for settling disputes of age assessments have on your organisation? I am conscious, as a former councillor, that it is not always just financial; it is also around officer time in particular, and the impact on services more generally. What would you say about that?

Councillor Rachael Robathan: Anything that moves towards a uniform process will greatly help. At the moment, involving the local authorities and putting the responsibility on them is very difficult for what are very often stretched institutions. Having a uniform, joined-up process would be very welcome.

Councillor Roger Gough: Already when you see changes in, for instance, what the courts have found about what is a reasonable basis on which a challenge can be presented by Border Force, as we have seen recently, that has made a huge difference. The proportion of young people coming to us age disputed is significantly lower than it was before that.

When you get changes in the process, it can make a material difference. Authorities like ours are at least experienced in this area, even if we are in the eye of the storm. As dispersal happens, or when, as I mentioned earlier, those who have been placed as adults launch a challenge within their own authority, issues may arise for an authority that is not nearly as well set up to deal with them as we are.

To pick up on the point that Councillor Robathan made, it is worth emphasising what a difference going into the children’s system or the adult system makes. As we have both said, first there are children in care and then there is the care leaver process, all of which, quite properly in their own way, have particular requirements for children’s services departments in authorities. The process around adult dispersal clearly still makes demands on council services, but in the first instance it is a housing-related issue, from which a number of other things follow. It is not quite the same as building in what can be a seven, eight or 10 year process of somebody being part of the children’s services operations of the council.

[Stuart C. McDonald]

Q I thank the witnesses for their evidence so far. I have a couple of follow-up questions on age assessments. You have spoken about the safeguarding issues that arise if somebody who is an adult finds themselves in a space for children, but of course the opposite can also happen; there are huge safeguarding issues if somebody aged 15 or 16 ends up being put in a hotel with adults or dispersed to some other part of the United Kingdom with limited supervision. It is in all our interests to get that absolutely right. Would it make any difference, for example, if we took the pressure off these decisions—I am thinking slightly off the top of my head—by continuing UASC leave to a higher age, say 20 or 21?

Councillor Roger Gough: Sorry, could you just run your last point by me again?

--- Later in debate ---

[Tom Pursglove]

Q Presumably trying to focus our approach on safe and legal routes is also very helpful from a national security perspective.

Rob Jones: Absolutely, with the normalisation of clandestine entry, where people are allowed to hide in a crowd. When this problem began, a big day was 100. We are now looking at a big day as being over 700. Within that, you get an increased risk that people will enter the country in a truly clandestine fashion. The more that you can do to offer safe and legal routes, and to disincentivise the business model through deterrents and a range of provisions, the more effective we can be at tackling the organised crime element, because we can then concentrate on the worst groups, which pose the highest risk and will potentially be moving people with a criminal history, whom we are most concerned about.

[Stuart C. McDonald]

Q Thank you for your evidence, Mr Jones. I do not think that anyone would beg to differ on the need to deter and disrupt the smuggling gangs and to support safe legal routes; the issue is much more about where we draw the line in trying to deter people who use those gangs, whether it is appropriate to criminalise them, and so on. May I ask you about another challenge on which I think you have given evidence to the Foreign Affairs Committee: the use of social media companies and encryption to try to organise these sailings, and so on? Back then, I think you indicated that there was a lack of co-operation from a lot of the social media companies, which was posing a lot of challenges. Has there been any progress in that regard?

Rob Jones: There has been some progress. We have been working constantly with the social media companies to get a better response, and to ensure that their platforms are not being used to promote dangerous crossings, and there is progress. We are working in a voluntary environment. We are, in some ways, short of regulation, particularly in relation to this element, but we continue to work with those companies on a day-to-day basis to take material down. That response has improved. It is still not as good as I would like it to be, and we are working to an action plan where we have a common agreement of standards in terms of takedown and our aspiration to prevent adverse outcomes in the English channel, which is ultimately what this is all about. It has got better. It is not as good as it could be. Your point on encryption and some of the closed spaces that we cannot see that are being used to promote these crossings remains an issue for us.