Examination of Witnesses

Nationality and Borders Bill – in a Public Bill Committee at 3:15 pm on 23rd September 2021.

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Patricia Durr, Patricia Cabral and Adrian Berry gave evidence.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden 4:00 pm, 23rd September 2021

Q We will hear from all the next panellists remotely. They are Patricia Durr, chief executive of Every Child Protected Against Trafficking UK, Patricia Cabral, legal policy officer at the European Network on Statelessness, and Adrian Berry from the Immigration Law Practitioners Association. We have until 5 pm for this session. Could the witnesses please introduce themselves for the record?

Patricia Durr:

Hello. My name is Patricia Durr. I am the chief executive of ECPAT UK. We are a child rights and anti-trafficking charity working directly with child victims and those at risk, and advocating for their rights to protection and care.

Patricia Cabral:

Good afternoon. I am Patricia Cabral, the legal policy officer at the European Network on Statelessness. We are a civil society alliance working to protect stateless people, and to reduce statelessness throughout Europe. We have more than 170 members across Europe in 41 countries, including the UK. There are 45 of us in the UK.

Adrian Berry:

Hello. I am Adrian Berry, patron of the Immigration Law Practitioners Association. We represent barristers, solicitors and other immigration advisers who work in the field of migration policy to secure just and equitable immigration law and practice.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q I thank our witnesses for joining us this afternoon. To ECPAT first, you said in your written evidence that, although the Government’s stated intention is to improve support for child victims of trafficking, that is incompatible with their plans in the Bill. Can you explain that?

Patricia Durr:

Thank you for the opportunity to give evidence to the Committee. One of our concerns has been what little attention has been paid to child victims in consideration of the measures in the Bill. We welcome the focus in the earlier evidence session with Dame Sara Thornton and Siobhán Mullally, and some of the questions from the Committee on that. One of our key concerns is that the measures in part 4 of the Bill will affect all child victims of trafficking, including British national children, who currently form the majority of those who are referred into the national referral mechanism; yet it is being dealt with within an immigration context. For us, consideration of child victims of trafficking and modern slavery is a child protection matter solely.

We are also concerned that the measures in the Bill will be detrimental to unaccompanied children, who we know are at particular risk of exploitation, abuse and trafficking. We know that increasing numbers of children are being identified as victims; yet the barriers are huge. We support some of the stated intentions of providing more support for child victims, but this measure seems to be increasing vulnerability and increasing punishment of children who are already too often criminalised for their own exploitation.

We also think that the Bill is not compatible with the UK’s current obligations towards children, principally the Council of Europe convention on action against trafficking in human beings and the UN convention on the rights of the child, and that all decisions about children, including that of immigration leave, must be taken with their best interest as the primary consideration. They must not face discrimination due to their immigration status, nor must they be disqualified from protection in the UK. There should be a safeguarding response to all children.

We are concerned about all the clauses in part 4 of the Bill, but we have particular concerns about identification, the conclusive grounds provisions, the recovery period, which will potentially have an impact on child victims, and the disqualification from protection, as well as the leave to remain provision in clause 53. We think there is an opportunity to improve and strengthen that in terms of particular provision for children, whereas there is nothing in there now that meets the international legal standard for children.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q Thank you very much; that is incredibly helpful. Looking at some of the statistics for last year for the national referral mechanism, the data suggests there was an increase of nearly 10% in children being identified as potential victims of trafficking. Do you have a sense of what some of the reasons might be for that increase in children being referred?

Patricia Durr:

We need to bear in mind that the biggest single form of exploitation of children who are being referred is criminal exploitation, and to a large extent some of that is about increased awareness and better identification of children and young people. We are not sure yet what impact covid may have had on some of that; we know that the numbers of adults went down, maybe as a result of the access into work environments where they are being exploited. There may be some of that, but there is a broad understanding that there is an increase in exploitative behaviour towards children.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q With that in mind, looking at clause 51 specifically and given the prevalence, as you have just said, of children in the NRM who have been subject to child criminal exploitation, to what extent are you concerned that the measures in clause 51 will not only make it harder for children to come forward to seek support having been exploited, but make it harder to secure prosecutions against those who have been exploiting them?

Patricia Durr:

We are really concerned about that, because the definition of the threat to public order is not appropriately drawn. It is so broad that, as you say, a significant number of child victims would potentially be disqualified from that protection. The consequences for children and young people are huge. As we have said, criminal exploitation is the most commonly reported form of modern slavery for potential child victims, and a significant number of those cases are for drug-related offences, including some of the so-called county lines crimes, which may carry custodial sentences of more than 12 months, which this provision brings in. Those children would be disqualified from protection if they were identified on appeal for serving custodial sentences.

We also know that data on arrests of children aged 10 to 17 for drug-related offences show that more children are arrested for possession with intent to supply class A drugs. We are also concerned about the terrorism subsections of clause 51, which will exclude child victims exploited by non-state armed groups from accessing protection. The international legal framework on the use of children in armed conflict defines this form of exploitation as the worst form of child labour, and exclusion of children recruited by armed groups on public order grounds will significantly hinder their ability to be safeguarded from harm and to access support and protection. We draw particular attention to the impact it will have, not only on migrant children. It may include the identification of children domestically, such as those in Northern Ireland who are recruited into paramilitarism.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q In the light of what you have just said, do you have concerns that clause 51 may not be compatible with section 45 of the Modern Slavery Act 2015 in particular?

Patricia Durr:

Yes. It is a principle set out in international—and also our domestic—law that children should not be punished for their own exploitation and abuse. That non-punishment of trafficked children was recently judged in the European Court of Human Rights. I think Siobhán Mullally mentioned this case of V.C.L. and A.N., two Vietnamese teenagers who were criminalised and not identified as child victims of slavery. Yes, we are very concerned about this clause. We think that child victims should not be included within its remit.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q Thank you very much. I have just one more question for Adrian, if I may, Ms McDonagh. Turning to access to legal advice, particularly in relation to the NRM, could I get your thoughts on whether the system would be improved if people received legal advice upon entering the NRM, and whether that is appropriate?

Adrian Berry:

It is certainly appropriate for people to receive legal advice. The key element in that regard is whether or not people have public funds in order to secure the appropriate advice, and whether there is adequate funding for that. Yes, we would support that at all stages. Of course, it does not correct any of the defects in strengthening the tests for making a reasonable grounds decision or changing a standard of proof in respect of conclusive grounds decisions. What it does do is enable people to assert their rights, so it is a basic jumping-off point.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q We are still waiting to probe some of the information around these trafficking information notices, perhaps in Committee, but do you have a sense that it would be appropriate to receive legal aid and legal advice at the point at which you receive a trafficking information notice, as well?

Adrian Berry:

Yes, of course. As you know, there is a whole series of notices, including in relation to trafficking, which increasingly assimilate it to the asylum process where you get punished for producing evidence or material after an arbitrary cut-off date. There is no safeguard in the Bill for when that cut-off date is—it could be too soon, before you have had an opportunity to recover, to produce the information and receive support. Legal aid is one way of enabling people to properly frame their case at the earliest possible opportunity. The use of notices throughout the Bill, whether trafficking, asylum or priority removal notices, is a subject of serious concern in terms of procedural fairness and ensuring convention compliance, whether that is the trafficking convention or the refugee convention.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Q I will address this question to Patricia Cabral and the European Network on Statelessness. Could you just explain what the implications of this Bill are for children who face statelessness, and how this might impact on them?

Patricia Cabral:

Thank you for the question. Clause 9 proposes to amend and restrict a vital safeguard in British nationality law that was initially introduced with the aim of preventing and reducing childhood statelessness. It is important to note that the UK has international obligations in this area, so the existing safeguard implements those international obligations by enabling a child who was born in the UK and has always been stateless to acquire British citizenship after five years of residing here. We are concerned that the amendment proposed by clause 9 restricts children’s ability to access that safeguard and acquire British citizenship. It is not in line with the UK’s international obligations, and it clearly risks leaving even more children in the UK stateless and in limbo throughout their childhood.

In the last year, we developed a project to understand the issue of childhood statelessness specifically in the UK, so we have gathered some evidence about the barriers these children are facing and who the stateless children in the UK are. Perhaps it would be useful for us to share some of our findings in this area. I will just note that the stateless children in the UK are mainly children who are currently affected by statelessness because their parents belong to a recognised stateless community—for example, the Kuwaiti Bidoon, Rohingya, Palestinian or Kurdish populations—but many of them are also children in care, especially where they have a migrant background. There may be issues with acquiring parental consent if it is required for the child to access nationality, because the documentation may be missing. Children in care are at particular risk of statelessness, because there is a general lack of awareness from local authorities about nationality issues. There may also be children of Roma families or children affected by domestic abuse, trafficking or other forms of exploitation. We are generally talking about children who are already vulnerable and marginalised, and who are also stateless.

We should also bear in mind that clause 9 would amend the provision that applies only to children who were born in the UK and who have lived here for at least five years. We are talking about children who were born here, who grew up here and who really feel that they belong in the UK. They do not know any other country, they feel British and they wonder where else they belong, if not in the UK. We have received some statements from children who grew up in the UK without British nationality, and it really has an impact on them. They describe feelings of alienation, a loss of self-confidence and the challenges to their identity. We have heard from a child who told us that she could not join her class on a trip to France, and she felt that the situation was really insecure and that it was not safe for her to make close friendships. We can only imagine the emotional burdens of this.

We can see how children feel the impact of being stateless, but they really do not understand why they are stateless, and they feel disempowered to change this. That is because the power to change this is really with the UK authorities—for them to grant nationality and a sense of belonging to the UK. Therefore, that starts with simply not amending the existing safeguards that are in line with international law, so clause 9 of the Bill should simply be dropped.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Q Adrian Berry, you wanted to come in on that question. At the same time, can you say whether the Home Office has explained why it wants to make it more difficult for already vulnerable children not to have access to recognition of statelessness?

Adrian Berry:

There are two things to say. First, there is a real problem with the efficacy of this provision. At the moment, you can apply for registration under this route only when you reach the age of five. But at the age of 10, any child, regardless of whether they have a nationality, can apply for registration as a British citizen under a different provision—section 1 of the British Nationality Act 1981. This is a provision on the face of the Bill that is designed to capture children between the ages of five and 10, because you have another route once you reach the age of 10. The question needs to be asked: what is the point of doing that? You have to have some compelling advice about the cohort aged between five and 10 in order to do it, and there is no evidence at all that that particular cohort of people are the subject of concern. There is no data adduced to show that there is any abuse of the current provision in schedule 2 to the British Nationality Act 1981, which deals with stateless children. There is no reason why you would just leave a child stateless between the ages of five and 10, knowing that there is another provision in law once they reach the age of 10. There is no gain by using this provision. On the question of—[Inaudible.]—simply that the provisions become more available.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Q On a slightly different question, perhaps one area where we can all be fairly positive is clauses 1 to 8. This is about correcting historical unfairness in the nationality system—is that right? Are we right to welcome these provisions but with the caveat that we have to see how effective the provisions become, how accessible they are, what fees are charged and so on?

Adrian Berry:

Yes. Clauses 1 to 8 are good stuff, as far as they go. They correct—[Inaudible.]—on the grounds of sex discrimination, discrimination on the grounds of illegitimacy, and historical unfairness in relation to people who might have been prejudicially treated in the Windrush scandal. There is not much not to like about that. There are some omissions. They cure prejudices against people who would be British citizens and overseas territory citizens today, but they ignore the people who would be British overseas citizens today. You will know that their concern is directly because they have no ability to come to the UK, but they still have British nationality. So there is more work to do, but so far, so good, and there are some welcome developments in clauses 1 to 8.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Can I ask about the scope of the criminal offence created by the Bill for coming into the United Kingdom irregularly? The Government’s Q focus is on boats, but does that catch other people who arrive here and claim asylum? For example, if I arrived here on a visit visa and then sought to claim asylum, and clearly I had applied for the visit visa only for the purposes of coming to claim asylum, would that be a criminal offence? Is it clear from the Bill?

Adrian Berry:

If you apply for a visit visa, you are making a representation that you intend to return to your country of origin. At some point, unless you claim on arrival when you land, you may be declared an illegal entrant under existing provisions. The problem with clauses 37 and 38 is that they criminalise arrival and assisting arrival in the UK. So it is the crime of arrival or assisting arrival, if you want to think about it like that. What that does is that applies to asylum seekers. So you say, “Of course, we are not impeding the efficacy of the refugee convention”. In the explanatory notes the Home Office says that, but in practice it is. If you criminalise arrival, that is precisely what you are doing. You cannot see those provisions separately from clause 12, which prohibits you from claiming asylum in UK territorial waters.

When you fit them all together, you have the criminal offence of arrival: you do not have to have entered the UK, you are still on a vessel. You are in UK territorial waters because you are on your way to the UK and you cannot claim asylum there. However, the maritime enforcement powers, which the Home Office gives itself under schedule 3, allow it not only to board your vessel and not take your asylum claim, but require you to go back to the port from which you came and require you to leave UK territorial waters. If you look at the package—criminal offence, not being able to claim asylum, and power to board your vessel and require you to leave—not only might that put you at risk in your insecure vessel, but it just shuts you out from the refugee convention. It is a full-scale assault on being able to claim territorial asylum in the UK.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

In essence, the only part of the asylum system that would be left would be people who happened to be in this country and there was a dramatic change of circumstances in their home country—refugee sur place. It is not so much an objection to shutting down unsafe routes; it is an objection to shutting down the UK asylum system, pretty much.Q

Adrian Berry:

Yes. The whole point of the refugee convention is not about resettlement; it is about people making it to the territory and processing and determining their claims. That is why you have the prohibition on penalties in article 31. It is all about coming to the UK to claim asylum and being a refugee on an irregular route. If you shut that out, all that is left is sur place claims, as they are called, where you are on the territory, as you suggest.

Photo of Paul Howell Paul Howell Conservative, Sedgefield

I have a question for PatriciaQ Durr, more focused on children. One of the things we hear about is people claiming to be children when they are not, and where the boundary is in that. There are questions about what the boundary of assessment is. Do you have an opinion on that, because I do not think we have heard anything so far on that? Where do you feel that sits? Obviously, it is very important that we keep adults separate from children in any holding pattern.

Patricia Durr:

We are waiting for more information about the age assessment, given the placeholder clauses in the Bill. I guess our biggest concern is about children being treated as adults. I know that the Committee has expressed some concern about adults being treated as children, but we need to consider that the greater risk is that children are being pushed into adult systems through inappropriate age assessments. Obviously, it is a concern all round, but that is the greatest concern, I think, because the consequences of the adultification of children who are then also criminalised are huge. In any provision for children and young people in this country, we should have in place very strong, robust safeguarding measures that provide better protection for children and young people there than would be provided for a child in adult provision. That is the way I would consider that.

We are concerned that age assessment should remain within a safeguarding framework and remain with professionals who are skilled in children’s development and care. I think the British Medical Association has given written evidence to the Committee to disavow the idea that there is a scientific method or approach to age assessment. It is obviously about professional judgment by skilled professionals—in this case, social workers—who have a better understanding of child development.

Photo of Paul Howell Paul Howell Conservative, Sedgefield

I agree that it is a difficult one either way—children to adult or adult to children. It is just a question of where the boundaries sit and making sure we get those in the right place.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q I have some questions for Adrian about enforcement and the legal parts of the Bill. I will start with clauses 23 and 24. This is about the late provision of evidence, giving weight to the late provision of evidence and then, following on from that, appeals. What are your thoughts in relation to that? You probably need to look at it in conjunction with clauses 16 to 20. Just give us your assessment of those clauses.

Adrian Berry:

This is an attempt to be prescriptive on the way in which, first, the Home Office and, secondly, judges will assess credibility in a range of situations in relation to claims on human rights grounds and asylum claims. It is not the first time that we have had credibility clauses put into Bills to tell judges what their job is and how to approach witness evidence. Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 tried to do that, and now we see a range of these provisions spattered across the Bill. The problem is that they always set early cut-off dates for providing evidence and then say, “Well, if you provide the evidence late, you’re penalised on credibility.” But the obvious question is this: what is the instrumental connection? If the evidence is good and proves that you are in need of international protection, why is your credibility damaged? You have done what you are supposed to do, and the UK obligations are engaged.

It attempts, effectively, to usurp the judicial function, to take it away from judges, who are expert at assessing past facts of what has happened in foreign countries, foreign laws and protection risks, and to say, “Well, here we’re going to discipline the task for you, regardless of the merit of the application, and penalise a person who may have difficulty getting evidence, who may be traumatised by their journey to the UK and who may lack funding to get things properly translated or to commission expert reports.” It says to them, “We’re going to penalise you, regardless of the merits of your claim, because we have set an early cut-off date and you haven’t met it.” It is introducing yet one more hurdle. It has not worked before, under the 2004 Act, and it is unlikely to work in this Act.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q I also want to ask about the impact on appeals, because there is a limit on where you can appeal to. What do you think the impact of that will be on decision making?

Adrian Berry:

Severe, in fact. If you look at the provision for priority removal notices and expedited appeals, there are some serious concerns. If you introduce a claim for asylum and you provide evidence after the cut-off date given, in a priority removal notice you are given what is called an expedited appeal. That begins in the upper tribunal. Your first punishment is that you lose your right of appeal and hearing in the first-tier tribunal. The second punishment—much more serious—is the return of the ouster clause. It is that the upper tribunal hearing is final; there is no onward appeal to the Court of Appeal. That is something that was first tried in clause 11 of the 2004 asylum and immigration Bill, before it became the 2004 Act. And it is wrong—one first-instance appeal on human rights grounds or asylum grounds in the upper tribunal. Mistakes happen. They need to be corrected. There would be a reason for the Court of Appeal to be available, and thereafter the Supreme Court. And there is no vice in allowing that, because of course the appeal tests, for permission to appeal, are tightly controlled and policed by judges making permission decisions. An expedited appeal leaves you with one shot—no rights of appeal. It has serious implications for the rule of law that the first-instance tribunal decision cannot be reviewed.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q Adrian, still on the issue of telling judges and courts what to do, clauses 62 and 63 are on wasted costs orders. I just wondered what your thoughts were on those clauses.

Adrian Berry:

There are three things. First, there is no need for them. We already have three ways of controlling advocates in court. First, there are case management powers in the tribunal system to regulate conduct of a case. Secondly, under section 29 of the Tribunals, Courts and Enforcement Act 2007, there is a wasted costs and unreasonable costs jurisdiction, which is applied in the tribunals. Thirdly, there is the ability of tribunals and courts to refer practitioners who are considered to have behaved improperly or negligently to their regulatory bodies, such as the Solicitors Regulation Authority. We already have all those constraints.

Adding in charges, which would be paid to the state, rather than being costs between the parties, and making provisions for unreasonable costs orders, is absolutely unnecessary. There is not any evidence in the explanatory notes as to why that needs to be done, because there is no evidence of any deficiencies in the existing three mechanisms that I have outlined. It will chill the ability of other people to take difficult points on behalf of vulnerable people.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q Looking at the enforcement part of the Bill, I am looking at clause 41, which is about maritime enforcement and introduces new schedule 5, which relates to the Immigration Act 1971. It is to do with pushbacks and other associated measures. What is your interpretation of what this clause does and how effective it will be?

Adrian Berry:

Maritime enforcement provisions butt up against the United Nations convention on the law of the sea and its article 98 duty of rescue. That is a part of customary international law. If you are at sea as master of a ship and see someone at risk of losing their life because they are in an insecure vessel or are in distress and they ask for assistance, you are obligated to help them. That is the basic position. This provision not only creates powers to allow Home Office vessels to leave UK territorial waters and enter international and foreign waters, but it enables them to stop, board and then divert vessels away from the UK and back to foreign ports.

That creates a situation where there may be a risk to life and limb, because these vessels are often very insecure. Although Home Office staff may not board them, in circling them and trying to press them back, they are making those lives insecure. There may be a question of extraterritorial jurisdiction under the Human Rights Act 1998 for such behaviour. It also risks their lives. It cuts across the duty of rescue, which applies not just to the Royal National Lifeboat Institution or to merchant vessels; it also applies to those very Home Office vessels. They, too, are subject to the duty of rescue, regardless of the fact that they are trying to hustle asylum seekers back out of UK territorial waters.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q There is a clause in the Bill that removes the words “for profit” from one of the pieces of legislation on rescuing, so that would clearly impact on anybody rescuing anybody in distress. Is that your reading of it?

Adrian Berry:

Yes, that is clause 38, which removes the “for gain” provision from assisting an asylum seeker to enter the United Kingdom. That could prejudice a prosecution that is brought on people who are involved in search-and-rescue operations, which is also part of the UN Convention on the Law of the Sea, by the way. In addition, an asylum seeker who might be piloting an unsecured vessel across the channel could be prosecuted, even though they too are an asylum seeker. There is no article 31—of the refugee convention—defence to that criminal charge, and it would undoubtedly be a penalty, because it would be frustrating the operation of the refugee convention, in terms of the UK’s obligations under that.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q A number of clauses seek to interpret the 1951 refugee convention, particularly clauses 27 to 36. By trying to do that, does it put the UK in a better position or would that be laughed out of court, for want of a better phrase?

Adrian Berry:

Judges are not necessarily meant to laugh in court, but the question is: what is the purpose of it? When we were in the European Union and had the common European asylum system, we had a system of common standards, so the refugee qualification directive specified the way in which refugee convention terms were to be applied, because we needed to have common methods and systems throughout the European Union. We have left, as we all know, and the status quo ante ought to apply, where we just apply the refugee convention as determined by our courts and the provisions thereunder.

This specification in primary legislation is unnecessary. These terms are well understood. The only attempt here is to change the settled law, including from the highest judicial courts—the previous judicial House of Lords, now the Supreme Court—and other decisions of binding authorities. We see an attempt to change the standard of proof for the assessment of past facts in refugee cases from “reasonable chance” to “the balance of probability”. That cuts straight across binding authority in this jurisdiction in the case of Karanakaran v. Secretary of State for the Home Department. We see an attempt to revise the definition of “particular social group” so that the two tests are now cumulative rather than the alternative. Again, that cuts across binding authority. It is an attempt to write out the settled view of the courts on the interpretation of the United Kingdom’s international obligation, where the UK courts’ interpretation is consistent with international practice and the terms as defined in the Bill are not.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q A final question from me. Looking at the Bill as a whole, bearing in mind that it seeks to make the system fairer, to deter people from using illegal routes and to break the smuggling model, do you think that it will achieve any of those objectives?

Adrian Berry:

No, not at all. If you want to end smuggling routes, you have to open safe and legal routes to claim asylum in the UK, which may mean humanitarian corridors. It may mean bringing people to the UK to claim asylum rather than allowing them to be exploited by smugglers and traffickers. It may mean improving and having a fast and fair procedure in the United Kingdom that allows claims to be determined swiftly and robustly. The main reason why there is a smuggling industry is that there are no safe and legal routes, and therefore one can make a profit out of these vulnerable people.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q I have a question for Mr Berry. Do you see any benefit whatsoever in streamlining the processing of applications in the way that the Bill seeks to do, and providing clarity for the claimants sooner?

Adrian Berry:

I do not think it provides clarity to take away the ability to properly prepare a protection claim. What you need are proper resources and proper funding in order for that claim to be properly advanced, and then you need a robust determination mechanism to assess it. The difficulties relate to gathering evidence, taking witness statements from people who have been traumatised in their home country and traumatised by their journey, and obtaining other evidence in terms of other witnesses of fact and expert evidence in a case. These things take a little bit of time, and the existing procedure creaks even without accelerating the procedures. So long as people are treated with dignity and the resources are available, determinations will be made that are good and do not require challenge. That alone would foreshorten the procedure.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q If you had the opportunity, what would you do to better shape the system to remove those with no right to be here and to deport foreign national offenders?

Adrian Berry:

Foreign national offenders are a completely separate issue. We are talking about asylum, and the Bill is focused on protection claims in the section that we are concerned with. It is very important not to confuse foreign national offenders with people who are claiming asylum.

Adrian Berry:

Yes, and the Bill as a whole contains provisions on asylum, not extra removal provisions, so I was talking about the Bill as a whole as well. You already have everything you need. We are almost returning to the stage where immigration Bills happen every couple of years, attempting to address problems that had apparently been solved by earlier immigration Bills. The Home Office has a vast array of powers at its disposal. What is needed is that it properly uses them.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

Are there any other questions? Mr McDonald, I stopped you on a question. Would you like to carry on?

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Q Thank you, Ms McDonagh. I have just a couple more questions. Mr Charalambous was very comprehensive in his own questioning. Can I go back to the change to the standard of proof? How problematic is it having this balance of probabilities test in there alongside the refugee convention definition of a refugee, which talks of real risk?

Adrian Berry:

It is extremely problematic, and not just because it is deprecated in other jurisdictions, but because it makes the judge’s task so much harder—they have to have a split personality. They have to weigh some of the evidence—including the question of whether the person has a refugee convention reason, such as a political opinion or membership of a particular social group—on the balance of probability standard, and then they have to assess the question of what happened in the past on that standard. Then they have to evaluate future risk, which is intimately bound up with how you have been treated in the past, on the lower civil standard of reasonable degree of likelihood.

It is a charter for errors of law creeping into decision making and for onward appeals. It will almost certainly lead to more onward appeals, which will lengthen the process. It will add to costs and uncertainty, and ultimately it will leave people without protection, when there is a commonly understood threshold test, with the reasonable degree of likelihood across the piece, whether it is past facts or future risk, that has applied in this country and other common law jurisdictions and is endorsed by the United Nations High Commissioner for Refugees.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Q Thank you. Finally, can I ask Patricia Cabral about statelessness? You have indicated what is wrong with the Bill and how it makes access to recognition of statelessness for children more difficult. What would you like to see in the Bill? Is it fair to say that the system for applying to be recognised as stateless in the United Kingdom is fairly good by international standards, but there are still hurdles and problems that need to be improved? What could be put in the Bill to improve the system for recognising statelessness in the UK?

Patricia Cabral:

Yes, there are a number of issues with statelessness in the UK anyway, but with this Bill we want to focus on clause 9, in particular. Our research shows that children who are brought up stateless in the UK already face a number of significant issues in acquiring British citizenship. There is a lack of legal advice and quality legal support. Legal aid is not always available. There are a number of challenges in evidencing and proving statelessness. There are already all these barriers for children trying to acquire British nationality, which might be the only nationality available to them.

What we are really aiming for today is just to make sure we do not create even more barriers for these children, and that we remove clause 9 to ensure that we do not amend any of the existing safeguards. Paragraph 3 of schedule 2 to the British Nationality Act 1981 is in compliance with international law—the 1961 convention on the rejection of statelessness and the convention on the rights of the child. We simply do not need to touch those safeguards or make this amendment.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q I have a question for Every Child Protected Against Trafficking. Patricia, in your written submission you were very critical of the lack of due process. Could you take me through just how dissatisfied you were with the consultation process and why?

Patricia Durr:

We have talked about how children’s rights are exercised by the provisions in the Bill. A children’s rights impact statement would really have assisted consideration of some of the measures, by setting out which children’s rights are invoked and how they are impacted. It is something the Committee on the Rights of the Child has asked the UK Government to do systematically. It is safe to say that the length of the consultation period was not sufficient.

We were quite surprised that the part 4 provisions are being included in this asylum and immigration Bill, particularly given that there is currently a review of the modern slavery strategy. On the lack of consultation, certainly from our perspective, what implications might there be for child victims of trafficking? Their experience of waiting in limbo, and the lack of provision for leave to remain as recognised child victims of trafficking, rather than through asylum provisions within the immigration rules are certainly a huge concern for the young people we work with, and that would come through very strongly from them. It was that combination: why these provisions in this Bill, and the lack of engagement with children and young people—from our perspective—but also, survivors of trafficking and exploitation more broadly.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q Based on what you have just said, this came as a bit of a surprise. Would it be fair to say that you think that part 4, on modern slavery, does not belong in a piece of legislation around borders? Perhaps it should be removed, the consultation process should be done properly, and then revised proposals around properly tackling modern slavery and trafficking, supporting victims and bringing perpetrators to justice, could come back in a way that we would all like to see?

Patricia Cabral:

I think that would be preferable, given that we have got a review of the whole of the modern slavery strategy. What we do not want to risk is the progress that has been made, and the good provisions that have been made, through the UK’s modern slavery strategy, potentially getting rolled back. That is the big concern. What we should be doing is improving things. I would support looking at the provisions around modern slavery and trafficking as safeguarding matters, rather than immigration matters. Obviously, there are enforcement matters related, but there is confusion. I draw the Committee’s attention to the Government’s 2014 review, by Jeremy Oppenheim, which led to revisions of the national referral mechanism to separate immigration decisions from matters of modern slavery. The provisions in part 4 are rolling that back quite considerably.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q I have one further question. On Tuesday, one of the issues that the local government witnesses referred to as being particularly problematic was around age assessments. I would be interested to know whether any of the witnesses have come into contact with that challenge? They mentioned that sometimes those cases end up in quite long and protracted judicial review processes. I would be keen to hear any reflections that the witnesses have around the Bill’s approach to this.

Adrian Berry:

I do not know whether the other witnesses have had experience of age assessment trials—I have. This Committee cannot scrutinise that clause in the Bill, because all you have put in it is a placeholder clause, with the detail said to be coming later on. We are not in a position to scrutinise it, and I cannot tell you what it says, because you had not finished the Bill before publishing.

Age assessment trials are trials; although they take place within a judicial review context, they are full trials with witnesses, and over time the courts have developed a system for case managing those trials. The difficulties that arise would arise in any context. In other words, it is very difficult to tell how old someone is. It is a process that requires expert evidence and the gathering of timelines and the chronologies of people’s journeys, and their explanations. That would take time in any context. Until we see the detail of what you propose, the age assessment provision simply cannot be assessed. We hope you bring forward the actual clause by Report.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

Are there any further questions?

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

Q I have a question for Patricia Durr from ECPAT. When trailing the Bill, the Home Office talked about the widespread abuse of the system by child rapists and criminals—foreign national offenders. We heard the Minister alluding to that earlier. Of course, nobody wants to have a system that is abused, but I understand that ECPAT submitted a freedom of information request on that. I wonder whether you could tell us how widespread that abuse was.

Patricia Durr:

We did not submit the FOI, but the response back indicated that that information is not available, so evidence of widespread abuse does not exist as far as we know.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

If there are no further questions from Members, I thank the witnesses for their evidence. That brings us to the end of our oral evidence sessions. The Committee will meet again after the recess on Tuesday 19 October at 9.25 am to commence line-by-line consideration of the Bill.

Ordered, That further consideration be now adjourned. —(Craig Whittaker.)

Adjourned till Tuesday 19 October at twenty-five minutes past Nine o’clock.

NBB13 Migrant Voice and Amnesty International UK (joint submission)

NBB14 Project for the Registration of Children as British Citizens (PRCBC) and Amnesty International UK (joint submission)

NBB15 Mermaids