Clause 14 - Asylum claims by persons with connection to safe third State: inadmissibility

Nationality and Borders Bill – in a Public Bill Committee at 9:25 am on 26th October 2021.

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Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs) 9:25 am, 26th October 2021

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

“(d) there are in law and practice—

(i) appropriate reception arrangements for asylum seekers;

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

(iii) protection against refoulement;

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

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

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

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

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

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(6) In this section—

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

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

Clause stand part.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

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

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

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

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

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

“the claim should be considered”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Furthermore, in a significant and highly problematic departure from international practice and UK case law, it is irrelevant whether the claimant would actually be admitted to the safe third state in question. Although a connection, in the limited sense of the proposed new section 80C, between the applicant and the safe third state is required for a claimant to be declared inadmissible, the Secretary of State may still remove the applicant to any safe third state. The required connection therefore appears to be utterly meaningless in terms of ensuring the reasonableness and appropriateness of actual transfers. How on earth is that fair? Such fake definitions of the terms “connection” and “safe” imply that clause 14 is underpinned by nothing other than a desire to be shot of people from our shores—people who in all probability deserve our support and are entitled to support under international law.

With clause 14, Ministers seem intent on inventing yet more impossible hurdles for refugees. The mere idea that someone could, perhaps in another lifetime, have applied for refugee status in another state, in which they may or may not be safe, may or may not have been granted refugee status and may or may not have a hypothetical connection, is being used as an excuse to deem their claim in the UK inadmissible. Franz Kafka could not have dreamed up a more absurd and irrational state of affairs.

I would like now to examine a view on some of these matters provided by Matrix Chambers in response to a request from Freedom from Torture. Matrix Chambers’ legal assessment of many aspects of the Bill is so extremely damning that, as Members may have seen, it gained national press coverage a few days ago. The opinion states that the key legal concerns arising from the proposed inadmissibility regime are

“the absence of adequate safeguards against returning individuals to countries where they will be denied rights owed to them under the Refugee Convention while they await determination of their status, in breach of the UK’s duty to implement its treaty obligations in good faith” and that

“One of the key pillars of the Refugee Convention is the prohibition on refoulement.”

In other words, according to this legal opinion, clause 14 is likely to return vulnerable people to unsafe countries and therefore breach international law and the refugee convention.

It is also worth reminding the Committee of what the refugee convention says. Article 33(1) provides:

“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, members of a particular social group or political opinion.”

As the Matrix opinion states,

“The principle of non-refoulement applies to all refugees unless they fall within the narrow exceptions identified in Article 33(2) of the Refugee Convention.”

The Matrix opinion points out that the principle of non-refoulement has two important aspects, particularly in reference to clause 14. The refugee convention prohibition on refoulement applies to all refugees, not only those whose status has been formally recognised. As a result, it must in practice be treated as applicable to all asylum seekers, whereas clause 14 seeks to establish a precedent according to which those who have not been granted asylum are clearly at more risk of refoulement if their claim is deemed inadmissible.

In conclusion, I and other Labour Members are deeply concerned by clause 14, and we deplore the Orwellian doublespeak and how it renders meaningless terms such as “safe country” and “connection” with a safe country. We are appalled by the real risk that it poses to international law and the refugee convention through refoulement.

We would find the fantasy underpinning clause 14 laughable if it were not so concerning. The clause is clearly predicated on the presumption that the Government can persuade other countries to accept people from the UK. Ministers appear to believe that their powers of persuasion are so fantastic that others who already take far greater asylum responsibility than the UK will agree to relieve the UK of a substantial part of the very modest responsibility that it currently takes.

That is, plainly, nonsense. The reality of clause 14 is that no such agreements will materialise. Instead, the clause will lead at best to more backlogs in a sclerotic system and at worst to very real harm to already vulnerable people, breaches of international law and a further erosion of civilised values in the UK. We reject the clause and will vote against it standing part.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 9:45 am, 26th October 2021

I thank hon. Members for tabling their amendments. I have listened carefully to the arguments that they have put forward.

Amendments 18 to 26 and amendment 56 seek to amend the Bill provisions relating to the inadmissibility of asylum claimants with a connection to a safe third country. This Government are clear that people should seek asylum in the first safe country they reach rather than make dangerous journeys to the UK to claim asylum here. Inadmissibility is a longstanding process designed to prevent secondary movements across Europe, and these measures are being introduced to support that. The amendments seek to significantly weaken our ability to treat these individuals as inadmissible, and therefore weaken our ability to focus our resources on those most in need of our help. I make no apologies for prioritising the protection of the individuals most in need of help over those who could have claimed asylum elsewhere.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

Will the Minister indicate where in international law there is a requirement on an individual to make such a claim in the first safe country they reach? Or is the UK seeking to impose its domestic law on the international community?

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

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.

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

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

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

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.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

Defining what is safe is very important. It is not adequately set out in the Bill. Does the Minister believe that Afghanistan is a safe country?

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

I refer the hon. Member to our earlier exchanges during the passage of the clauses we debated previously. In relation to Afghanistan, as that situation has evolved, the approach that we have taken has also evolved, and quite rightly so. No one is being returned to Afghanistan at the moment. That fully reflects the in-country situation in Afghanistan, of which we are incredibly mindful, as the hon. Member and people of this country would quite rightly expect.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

The Home Office has published updated guidance that suggests that it is open to question as to whether there continues to be a situation of international or internal armed conflict in Afghanistan, and that should indiscriminate violence be taking place, it is only in some areas and to a far lesser extent following the Taliban takeover. Therefore, the Home Office is saying that Afghanistan is becoming safer because the Taliban are now in control. Does the Minister accept that position?

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

I will repeat this point again: we are not returning individuals to Afghanistan at the present time. I believe that is the right decision and I believe it fully takes into account the circumstances within the country at the moment. That is an approach that Members across this House can support.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

Does the Minister agree that situations in different countries can change? I have a constituent who was granted asylum from Iran, but subsequently has gone on a package holiday to Turkey and visited his family in Iran. As far as he is concerned, the situation in Iran has obviously improved.

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

It is of course the case that situations in countries change. That is why the approach we take is flexible and means that we keep under constant review the circumstances in individual countries. We then make judgments on the approach that we take in response.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

The Government’s resettlement scheme for citizens of Afghanistan is not even open and they are paving the way for Afghanistan to be redetermined as a safe country. Based on the previous example, if an Afghan asylum seeker ever gets to come through the scheme in this country and then goes back to visit Pakistan to see relatives—probably in one of the refugee camps there—they may be deemed to be okay to go back to Afghanistan.

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

I can only the refer the hon. Gentleman to the point that I have now made several times about Afghanistan.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

Have you got a more convincing argument?

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

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.

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

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?

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

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.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

Will the Minister set out how many reciprocal arrangements we have at the moment? Will there be more detail in the Bill documents about what those arrangements might be?

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

As I have said, there are case-by-case agreements that are reached in relation to returns. The Government are ambitious about the approach we want to take through the Bill. We want to try and forge fresh returns agreements with countries. The hon. Gentleman will note that this year we reached a returns agreement with Albania. That is a positive and welcome development. I will not give a running commentary on the negotiations we might be having with countries to forge returns agreements, and he would not expect me to do that.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

We certainly have a returns agreement with Nigeria, where we have biometric evidence that the person concerned is indeed the person who came to the UK. I know that because I signed it myself.

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

It is fair to say that my right hon. Friend was a proactive Immigration Minister. That was a significant achievement during his tenure.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

While we are celebrating this one reciprocal arrangement that can be used, and having trashed the Dublin Accord and all that it provided, can I just remind the Minister that Albania provided, in the last full year we have stats, the second highest number of successful asylum claims to the UK? The Albanian Foreign Minister has described the Government’s approach to negotiations on offshoring with Albania as “fake news”.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 10:00 am, 26th October 2021

As I said, I am not going to get into a running commentary about negotiations that the Government may or may not be having with individual countries. What I would say more generally on returns arrangements is that we are seeking to negotiate readmission arrangements with key EU member states. Where we do not have broad return agreements, we will seek returns on a case-by-case basis—a long-established process that we will continue to follow.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

I note the point made by the hon. Member for Bermondsey and Old Southwark, but is it not the case that Albania, Montenegro, North Macedonia, Serbia and Turkey are in negotiation with the European Union, under article 49 of the 1992 Maastricht treaty? That means that they will have to meet the 1993 Copenhagen criteria on human rights, and respect for and protection of minorities. If they meet those criteria regarding accession to the EU, they must meet the criteria for returns.

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

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.

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

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

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

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.

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

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.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

What consideration has the Minister given to the impact on the system of international protection for those fleeing conflict and persecution if the entire world adopted that principle, so that the responsibility only ever fell on the countries on the frontline of conflict and persecution?

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

I have heard the point that the hon. Gentleman has raised. I would make the point that this country has and will continue to make a significant contribution to the global effort to tackle the challenges that we face around displacement. We would argue that that must be achieved through safe and legal routes. That is the cornerstone of our policy, and I think that is the right approach. We must render these dangerous channel crossings unviable.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I thank the Minister for giving way again. I want to press the issue, because it is helpful to have an answer that reflects the question. The question did not ask him to reiterate his belief, but to articulate what the Government feel would be the consequences for the international protection system if every country adopted the same approach.

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

The point that I would make is that we need to establish a clear principle that people should come to this country through safe and legal routes. We would argue that the best and most effective contribution that we can make as part of the global effort is to establish those safe and legal routes—there are many past and current examples. We think that is the right approach; we cannot in any way support or endorse people making dangerous and unacceptable crossings.

As a result, we strongly believe that the approach that we are taking in the Bill is right and builds on our proud traditions in this country of providing sanctuary to those who require it. That gets to the heart of the hon. Gentleman’s question. It is not about this country refusing to participate in the global effort, but about establishing clear expectations around how we intend to do that. We will continue to build on the proud traditions that we have in this country.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

I am finding the Minister’s answers increasingly disappointing. Could he come back to the specific legal question from my hon. Friend the Member for Enfield, Southgate about article 33 of the refugee convention and the principle of non-refoulement?

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

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.

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

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.

Division number 13 Nationality and Borders Bill — Clause 14 - Asylum claims by persons with connection to safe third State: inadmissibility

Aye: 7 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

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

Division number 14 Nationality and Borders Bill — Clause 14 - Asylum claims by persons with connection to safe third State: inadmissibility

Aye: 9 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to.

Clause 14 ordered to stand part of the Bill.

Clause 15 ordered to stand part of the Bill.