Clause 16 - Provision of evidence in support of protection or human rights claim

Nationality and Borders Bill – in a Public Bill Committee at 10:00 am on 26th October 2021.

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Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office) 10:00 am, 26th October 2021

I beg to move amendment 36, in clause 16, page 20, line 8, at end insert

“, subject to subsection (1A)”

This amendment is consequential to the amendment which would remove the ability to serve an evidence notice on certain categories of person.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Amendment 37, in clause 16, page 20, line 8, at end insert—

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

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

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

(c) who has made a protection or human rights claim involving sexual or gender-based violence; or

(d) is a victim of modern slavery or trafficking.”

This amendment would remove the ability to serve an evidence notice on certain categories of person.

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

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

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

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

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

(d) who has experienced sexual violence;

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

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

(g) who has been a victim of torture;

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

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

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

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

We are extremely worried about the implications of clause 16 and its possible effects on vulnerable people. We tabled these amendments because we wish to further understand the Government’s intention with regard to certain particularly vulnerable groups. We believe that the impact of this clause, if it remains unamended, will further retraumatise vulnerable people.

As the Committee will know, clause 16 provides for an evidence notice to be issued to a claimant requiring them to provide evidence in support of their claim before a specified date. If they fail to do so, the provision of evidence will be deemed to be “late” and the claimant will be required to provide a statement setting out their reasons for providing that evidence “late”. The consequence for not complying with the evidence notice without good reason is that a decision maker may give minimal weight to the evidence. Apart from potentially impacting on a claimant’s credibility, the late provision of evidence in respect of evidence notices, under clauses 16 and 17, and priority removal notices, under clauses 18 and 20, may prejudice the weighting that a decision maker may give to the evidence. As we will see later, clause 23 states:

“Unless there are good reasons why the evidence was provided late, the deciding authority must, in considering it, have regard to the principle that minimal weight should be given to the evidence.”

It is unclear what “minimal weight” or, indeed, a decision maker having “regard to” this principle would mean in practice.

We are therefore extremely concerned that this clause and the others alongside it may potentially compound discrimination faced by people with protected characteristics. It is well established that people with different traumatic experiences may find it more difficult to disclose on demand their experiences of persecution, especially if they lack effective access to legal advice. Indeed, the Government’s message about legal aid to PRN recipients is insufficient amid the broader gutting of legal aid for the immigration sector since the legal aid cuts in 2013. This on its own is reason to doubt that individuals are likely to receive adequate legal support in terms of submitting evidence.

The situation may be compounded for people with protected characteristics. For example, women who have experienced sexual and/or gender-based violence may find it particularly difficult to disclose information about their experiences. The Home Office itself acknowledges the particular difficulties that LGBTQI+ asylum seekers may have in substantiating their claim or providing full disclosure, including experiences of discrimination, hatred, violence and stigma.

The stipulation about late evidence in clause 16 also has profound implications for the victims of trafficking and modern-day slavery. Frontline anti-trafficking organisations have previously highlighted how lack of identification is compounded because victims of trafficking are often unaware that there is a system to protect people who have experienced exploitation. The Government’s own guidance on the national referral mechanism provides that

“Victims may not be aware that they are being trafficked or exploited, and may have consented to elements of their exploitation, or accepted their situation.”

It is highly concerning that an individual could potentially be punished for failing to give evidence on time, in that such late disclosure might affect the credibility and/or weighting given to their evidence, which in turn would adversely affect their chances of a protection or human rights claim succeeding. It is clear that this is likely to lead to compounding of the discrimination experienced by certain groups, and make it harder for them to make the best possible case for themselves.

This brings me to the amendments. Anyone who takes the slightest interest in the plight of refugees will understand that, as I have outlined, there are many reasons why it may not be possible for someone to present all relevant information in support of their claim before a specified date. Our amendments seek to find out how this process will be adapted for those who may be too traumatised to recall coherently the events that led to flight, particularly if they are survivors of torture, sexual violence or trafficking. This also includes children: it is fairly self-explanatory that children, especially traumatised children, may not be able to provide evidence by a specified date. That is particularly the case if they have experienced failings in the process, such as a poor-quality interview or difficulty accessing quality legal advice.

Amendment 37 is fairly obvious and self-explanatory. However, should the Minister require more evidence about why late evidence may be a significant issue for vulnerable groups, it has been provided by studies, including one conducted by the British Journal of Psychiatry in 2007. The background to that study was the way in which late disclosure or non-disclosure during Home Office interviews is commonly cited as a reason to doubt an asylum seeker’s credibility. It sought to find out whether sexual violence affects asylum seekers’ disclosure of personal information during Home Office interviews.

For the study, 27 refugees and asylum seekers were interviewed. The results found that the majority of participants reported difficulties in disclosing. Those with a history of sexual violence reported more difficulties in disclosing personal information during Home Office interviews and were more likely to disassociate during those interviews, and scored significantly higher on measures of post-traumatic stress symptoms and shame than those with a history of non-sexual violence. The conclusion of the psychiatrists involved was that the results indicated the importance of shame, disassociation and psychopathology in disclosure. They concluded that their findings support the need for immigration procedures to be sensitive to those issues, and that judgments that late disclosure is indicative of a fabricated asylum claim must take into account the possibility of factors related to sexual violence and the circumstances of the interview process itself.

Without alterations, the proposals in clause 16 will penalise the most vulnerable and those who have been failed by the system by seeking to reduce the weight that is given to any evidence that is submitted after the applicant has been through an already draconian process. It is worth remembering that the proportion of asylum appeals allowed in the year to March 2021 was 47%, a figure that has been steadily increasing over the past decade. That shows how the system is already flawed, and how important evidence is already not given due weight. The attempt to make evidence even more contingent on its timing will make this situation worse and actively harm those in need of support.

In short, the Opposition believe that clause 16 and the other clauses up to and including clause 23 have the potential to inhibit access to justice, risk inherent unfairness contrary to the common law, and violate the procedural requirements of articles 2, 3, 4, 8 and 13 of the ECHR. Most importantly, they may add a significant risk of refoulement, which, as Members know, is in contradiction of the refugee convention.

The provisions in clause 16 on providing evidence are profoundly troubling. We believe that the impact of this clause, if it remains unamended, will be to further re-traumatise vulnerable people—something we come back to time and again in the Bill. The evidence notices and late provision of evidence will worsen discrimination. It is wholly accepted that people with different traumatic experiences find it more difficult to disclose what has happened to them. Let us consider the matter of torture: survivors rarely speak about what they have gone through; even long after the event they find doing so both draining and harrowing.

The potential consequences of the clauses may be to compound the discrimination faced by people with protected characteristics, breach people’s right to an effective remedy in relation to any international protection or human rights claim they make, or give rise to the risk of refoulement in breach of the UK’s international and domestic law obligations.

Photo of Roger Gale Roger Gale Conservative, North Thanet

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

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

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

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

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

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

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

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

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

Let me quote the Home Office’s policy:

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

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

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

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

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

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

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

“policies could indirectly disadvantage protected groups”, such as

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

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

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

On a day like this, I really do regret giving up coffee. I remind Members of my entry in the Register of Members’ Financial Interests and of my support for the Refugee, Asylum and Migration Policy project.

I had not planned to speak but I was very disappointed with the first set of answers I received. The only reason our debating time is limited is that the Government set an artificial timeframe for a very controversial piece of legislation. Yesterday morning I visited an asylum hostel set up in Southwark without giving prior notice to the council or to local organisations that would be willing, and have the network, to support asylum seekers. In the course of my discussion with asylum seekers in my constituency, I asked what specific support they had received in making their applications. They said, “Nothing apart from an interpreter.” When I asked if they had been given access to legal aid, they said they did not know what it was. The Home Office officials and the charity present said that legal aid information had been included in their induction materials, which are in several languages, but nobody had bothered to explain to them in their first language what legal aid meant, and no one had pointed out how someone could get access to legal aid in Southwark. Members should bear in mind that some of them were being told, especially when they first arrived, that they should not leave the premises. Access is a crucial point.

If the Home Office actually bothered to get out of bed and talk to local authorities before making such impositions on local communities, it would find that there is a willingness to better co-ordinate support and to help. There are some brilliant organisations, such as the Southwark Law Centre and the Southwark Day Centre for Asylum Seekers, which are there, willing and able to support those asylum seekers—if the Home Office just bothered to communicate. Instead, we have a more expensive system, with duplication and the Home Office imposing new contracts, commissioning new services and ignoring networks and systems that are already there, at substantial cost to the taxpayer—something that the Government seem to ignore. That is the context of clause 16: people do not have access to sufficient support to make the best application possible at the first point.

I want to speak explicitly about children today, because the Children’s Society has suggested that clause 16 will disproportionately affect children and young people, who are often unable to disclose evidence because of trauma and abuse or because they have not received adequate and child-appropriate legal representation. It believes that to subject asylum-seeking children and young people to clause 16 would be an outright disregard of the Home Office’s guidance and its obligations to safeguard and promote the welfare of children, as outlined in the UN convention on the rights of the child. The question for the Minister, which I hope he will return to, is how does the Home Office ensure that there is support to complete applications, given that direct, real-life example I gave, both for adults—I was talking to men yesterday—and for children, for the purposes of this contribution?

As my hon. Friend the Member for Sheffield Central pointed out, the Government’s equality impact assessment of its new immigration plan explicitly sets out that vulnerable people, including children,

“might find it more difficult than others: to disclose what has happened to them; to participate in proceedings; and to understand the consequences of non-compliance with legal requirements.”

Even the Home Office’s own documents suggest an understanding of UK law that may not be there—in fact, it is very unlikely to be there—for asylum seekers in the UK and especially for children and anyone who has gone through trauma. Hon. Members have already referenced the sexual violence that many may have experienced on their journeys to the UK.

The Home Office bears a duty to promote and protect the welfare of children, as set out in section 55 of the Borders, Citizenship and Immigration Act 2009, but in the year ending March 2020, there were 5,000 unaccompanied asylum-seeking children who were looked after, and such children arrived in this country alone, scared and in need of protection and support. Clause 16 would make it significantly harder for those children to build a happy and stable life in the UK, where they can be safe and have opportunities.

I do not pretend to be an individual expert on this, and we have all had access to the same information from the Children’s Society, which is sending its excellent briefings through. It has supported many asylum-seeking children and young people through the appeals process and has had to present new claims or evidence in later proceedings. That is the reality of the asylum process that the Government are seeking to impose: new demands, new complexity and new punishments for those who fail to meet higher standards.

The Children’s Society says that these young people and children are unlikely to set out the breadth of their claims and evidence in the first instance. That is due not to the weakness in any claim, but to the impact of the journeys they have endured and the consequent trauma they have faced, as well as being the direct result of poor initial legal representation—or none, as with the cases I mentioned yesterday, which real people out there have experienced.

We have just had some disappointing answers. The idea that even adults, never mind children, understand the need to point out religious or sexuality-based discrimination that they have experienced on the way, is frankly ludicrous and would be another example of—we talked about this in Committee last week—where the Home Office can be shown to be failing in its duty to consider the best interests of children, which means we will not end up with legislation that goes through, that no one comes back to and that is implemented effectively. We will see further legal action and millions more pounds of taxpayers’ money poured down the drain because the Government would prefer to have a culture war than build a fair, effective and fast system to deliver asylum decisions.

I am sure the Minister is an expert in medical conditions, but post-traumatic stress disorder does not always appear immediately after a traumatic incident or event. This legislation requires PTSD to occur immediately. It seeks to change the nature of a medical condition that most medical professionals, who I would argue know a little bit more about it than any member of this Committee, suggest usually takes between three to six months to appear, and before it has the most traumatic impact in an individual’s life. The suggestion that the UK, just one country on the planet, should legislate to require that to happen, and in relation to a medical condition that does not present itself immediately, is absurd. Frankly, I find it bizarre.

Preventing asylum-seeking children and young people from substantiating their claims and adding to their evidence at a later stage disregards the hugely traumatic experiences and trauma that they have been through. Instead of making the system fairer, it will penalise the most vulnerable groups, including children, who struggle to disclose information up front, as we know from the previous evidence base. It will lead to more unfair and more incorrect decisions, more bureaucracy, more appeals and more costs to the taxpayer, the Home Office and the justice system. Of course, it also fails the best-interests test, and I would suggest that it fails the Equality Act 2010, the Human Rights Act 1998 and international law.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby 10:30 am, 26th October 2021

Does the hon. Gentleman accept, however, that there will be cases where the reason evidence is presented late is that the initial reason for an asylum claim was exposed as a complete pack of lies, and therefore the claimant, maybe following the advice of people who understand the system, casts around for another reason why he or she might want to make an asylum claim?

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

I think the right hon. Gentleman makes the point that I am making, which is that we need a fast, fair and effective system up front. If we had such a system, those bogus claims would be weeded out pretty early on, and we would not have a Government desiring to implement a new set of impositions on children who have gone through trauma. The Government’s own statistics show how many cases are actually proven and upheld, so he does an injustice when he suggests that there might be some volume to the level of the claims he described.

I want to come back to the point about legal advice. It is poor legal advice, in addition to trauma, and an inability, not through any deliberate purpose but just through a lack of understanding, that lead—I am trying to find my place.

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

I just want to support the incredibly powerful contribution that my hon. Friend is making, following our hon. Friend the Member for Sheffield Central. As we have heard, it is often those who have been subject to the most trauma and who are most deserving of sanctuary who will take the longest to disclose. Those are the people who will be really negatively impacted if we allow these provisions to go ahead.

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

My hon. Friend is not only right; she is also a jolly good egg for helping me out.

All too often with asylum-seeking children and young people, poor legal advice, in addition to trauma, can lead to an inadequately prepared case and the rejection of their claim—in the small number of cases that are rejected. Having a good solicitor can make all the difference in enabling young people to give instruction, and to anticipate a thorough and full asylum claim, which negates the need to present at later stages.

In the hostel I visited yesterday, I was told that there is a Home Office list of legal aid providers that can be used. It would be really helpful if the Government agreed to publish the list so that it could be expanded and improved. Other local organisations that do this—often on a pro bono basis but obviously with professionals—could provide the best advice up front, so that we do not end up with lengthy cases, with stuff added later that could have been added up front, and the individuals could then have the best support possible. I think we should be committed to having a first-class, up-front service.

I will give one example, provided by the Children’s Society, of a child who went through the process:

“My solicitor did nothing, it was horrible. They didn’t even prepare a witness statement for my interview. I had to do everything myself. I had my social worker but she didn’t know how to help me with my asylum case. The interviewer told me she had no information and that I had to tell her everything”.

Of course, we have had a decade of legal aid funding cuts, with many asylum-seeking children and young people struggling to access quality legal advice. The availability of high-quality legal advice under the legal aid contract or on a charitable basis is both patchy and frequently limited. We are very fortunate to have some excellent organisations in Southwark but I know that that is not the case across the country, where there is a dearth of legally aided advice for asylum seekers. That is the system that exists and that has been attacked for a decade because the failure to provide up-front support necessitates further stages. Clause 16 will make that worse.

Another example from the organisations that have briefed us is the fact that many asylum seekers change solicitor. That is not because they have hundreds of thousands of pounds in their pocket and are looking for a different lawyer who might get a better result but because of the process. It is because the Home Office has moved them and because they rely on free legal aid contracts. They do not have the funds to stick with one solicitor and visit them by train if they move from city to city as part of the accommodation process that the Home Office requires. The Home Office is not doing this because it is deliberately trying to upset the legal support but because it is moving people and takes too long to make decisions. If it committed to a timeframe to make decisions up front, perhaps we would be in a stronger position and would be more supportive of legislation that makes such demands, though I doubt it very much in this case.

Last week, I asked the Minister about the extension of legal aid and I did not get a particularly precise answer, if I may put it delicately. I also tabled a named-day question––I think it was 58412––to the Ministry of Justice because the equality impact assessment suggests that legal aid will be extended. I asked the Minister whether it would be and I did not get an answer last week. Nor is there a commitment to extended legal aid for these cases in the answer from the Ministry of Justice, so I am confused and surprised. There must be a cost attached to this. The Department must have some more information, which I hope the Minister can share today, on how this new extension for legal aid will be paid for, where exactly it sits and who is delivering it. Is the Home Office again going to seek to extend its empire and build new services and contracts rather than working better with the Ministry of Justice? Councils often get dumped on by the Home Office rather than being supported and worked with. They have contracts with legal aid solicitors and experts on the ground who could provide a valuable service that speeds things up and cuts costs for the Home Office, rather than having the Home Office suddenly impose a new contract. I hope that the Minister can shed some light on that.

I am concerned about the clause’s potential cost and damage to the UK’s reputation, and about the potential breach of Home Office duties. Hon. Members have already touched on this, so I shall just whizz through. The Secretary of State bears a duty

“to safeguard and promote the welfare of children” under section 55 of the Borders, Citizenship and Immigration Act 2009. It is through section 55 that the spirit of the UK obligation to the best-interest principle set out in article 3 of the 1989 UN convention on the rights of the child in respect of asylum-seeking children has been translated into UK law.

The Home Office’s own casework guidance for assessing claims from asylum-seeking children makes it clear that decision makers are to take account of what it is reasonable to expect a child to know or relay

“in their given set of circumstances.”

That is crucial to the children we are discussing. It is inappropriate for authorities to question the credibility of a child’s claim if they omit information, bearing in mind the child’s age, maturity and other reasons that may have led to those omissions, which may be many, given the people we are talking about. The guidance sets out distinct factors that decision makers are to take into account, including age, maturity, the time of the event, the time of the interview, mental or emotional trauma experienced by the child, educational level––bearing in mind that many children will have had a fractured education––fear or mistrust of authorities given the experience many of them will have come through, and feelings of shame and painful memories, particularly those of a sexual nature.

Once again, we look set to have a Government, who have already been found to be acting unlawfully, failing to take into account the best interests of children. We have had that in the High Court. The Government want to spend hundreds more millions of pounds going through legal cases. Let us not do that. Let us get the system right and ensure that first-class legal aid and support are there for children at the soonest point rather than requiring them to fail because they do not understand the system and because no legal aid is there, and then punishing them for their failure, which is actually a state failure.

I have one more example from the Children’s Society—again, from a child:

“My first court hearing was horrible, my solicitor advised me to not answer every time anyone asks you any questions. However, when I got the refusal letter from the judge, it said it was because I hadn’t answered any of the questions. As soon as I changed solicitor, my solicitor told me to appeal, prepared an expert report and told me to speak in court this time round and finally my case was accepted.”

We agree with the Government that asylum applications need to be dealt with in a timely manner. That is not happening at present, and it should not come at the cost of limiting the ability to present new or late evidence, as proposed in the Bill. Children should be a focus in our minds because they make up nearly a quarter—23%—of asylum claims. To include children in some of the measures in the Bill is frankly cruel. Can the Minister confirm whether a child rights impact assessment has been carried out on clause 16? If not, will it be done before we meet again?

Photo of Roger Gale Roger Gale Conservative, North Thanet 10:45 am, 26th October 2021

Before I invite the Minister to respond, I need to clarify something. At the start of his remarks, the hon. Member for Bermondsey and Old Southwark indicated that there had been a lack of time to consider the Bill. I cannot recall whether he was a member of the Programming Sub-Committee, which I chaired, but the programme motion was agreed by its members, from both sides of the House. The motion was then put to the whole Committee at the start of the first evidence session, and was again agreed without dispute. I am sure that no criticism of the Chair was intended, but I think it is necessary to clarify that.

Let me also make it absolutely plain that this Chair, and I am sure Ms McDonagh, is at the service of the Committee, as are the Officers of the House. It may be unpalatable, inconvenient or undesirable, but if it is necessary for the Committee to sit late into the evening, or even into the night, and that is what the Committee desires, then we are at your disposal. Clearly, we have to expedite the business, and believe me that this Chair, at least, understands the difference between a filibuster and a contribution, and I will say so, but no Member on either side of the Committee should feel constrained by time. We have an important job to do, and it is vital that we do it thoroughly. I hope that is absolutely clear.

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

Thank you for that clarification, Sir Roger. I thank hon. Members for raising these important issues. I will start by addressing amendments 36 and 37.

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

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

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

Rather than facilitate engagement in the process, amendments 36 and 37 would exclude claimants from it. They would artificially limit the circumstances in which the evidence notice would apply, favouring certain groups above others, who may have genuinely good reasons for providing late evidence. The amendment could create a perverse outcome, whereby it takes longer for the particulars of a genuine claim to be surfaced and to receive favourable consideration. Furthermore, this would create a situation in which unscrupulous claimants could cynically abuse the process by falsely claiming to be within one of those categories. That would tie the hands of decision makers, who are able to look at the facts of a case in detail and make an appropriate decision based on the facts before them. That would perpetuate the issues that the clauses are designed to address, to the detriment of genuine claimants.

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

I did point out earlier that 23% of these applications come from children. Is the Minister suggesting that they are making bogus claims and are cynical? Those are the words he is using. I urge him to distinguish more carefully between children and adults, and would make the case again that children should be exempt, specifically because of their age.

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

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

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

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

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

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

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

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

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

Of course, the situation will be set out clearly in guidance. We think that is the better approach, because it allows greater flexibility on the sorts of factors that might be relevant to the disclosure of late information, and obviously on matters that are relevant to individuals circumstances.

We tend to think that taking a less prescriptive approach than what the hon. Member is suggesting is the best way to address that, because we want to focus on individual cases and on ensuring proper consideration on a case-by-case basis, which is very difficult to capture in the circumstances being suggested here or by adopting the approach necessary to achieve that. That is why clause 16, together with clauses 17 and 23, allows for good reasons why evidence might be provided late.

As per the amendments directly commented on, rather than facilitate engagement in the process, amendment 153 would exclude claimants from it. This would have the perverse impact of some vulnerable claimants facing different evidential requirements simply because their particular vulnerability was not included in the list of exceptions. In addition, the amendment could create a situation where individuals who do not fall into one of the categories identified by the amendment were able to abuse the process by falsely claiming that they did. This would perpetuate the issues these clauses are designed to address to the detriment of genuine claimants, undermining their usefulness.

I am mindful that a number of detailed points were raised during the debate that I want to come to. The issue of deviation from the Home Office’s existing policy was raised by the hon. Member for Sheffield Central. I would not accept that depiction. I would say that the Home Office will have discretion over who is served an evidence notice and the extent to which credibility is damaged by late evidence. Where there are good reasons for late evidence, credibility will not be damaged. There is nothing automatic about this. Credibility is also not by itself determinative.

Building on that point, there are various safeguards in the clauses that mitigate a decision that could lead to removal in breach of the rights afforded by the conventions. First, claimants who raise matters late will have the opportunity to provide reasons for that lateness—and where those reasons are good, credibility will not be damaged. Decision makers will have the discretion to determine the extent to which credibility should be damaged, and that determination need not by itself be determinative of a claim, as I have already said.

The point was raised, understandably and quite rightly, about how we intend to deal with potential victims of trauma. Of course, how decision makers reach decisions is important in all this, and they should treat claims from vulnerable people in accordance with the guidance that we will set out. Extensive training will of course be put in place alongside that. Decision makers are already accustomed to ensuring that complex factors relating to trauma are properly considered.

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

How will this training operate in practice, given the points already made about how long it can take for PTSD symptoms and impact to emerge? No training on the planet can force those symptoms to emerge sooner, unless the Home Office is developing a particularly pernicious system.

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

I do not accept the hon. Gentleman’s latter point. I would expect there to be extensive training for decision makers on guidance when it is issued. Again, I make the point that the approach we are adopting is intended to be responsive to individual circumstances, and cases should be considered on a case-by-case basis. That is the entire approach we are taking here.

The shadow Minister, the hon. Member for Enfield, Southgate, raised the issue of refoulement, and I just want to be clear on this point. Again, individuals will not be removed if there is a risk of refoulement, and the provisions are drafted to ensure this.

On the point made by the hon. Member for Bermondsey and Old Southwark about legal aid, it is generally not available to individuals who are seeking advice or assistance with citizenship applications or on nationality matters. That is because it is not an issue within scope of the legal aid scheme—in other words, it is not an issue that Parliament has expressly provided for in statute as something for which legal aid can be provided.

For any issue where legal aid is not available, individuals can apply for exceptional case funding. The test for this is whether, without legal aid, an individual’s human rights might be breached. The only group of people who can routinely receive advice on nationality and citizenship are separated migrant children, as that is provided for in statute. We will come on to later clauses in which the legal aid provisions in this Bill, which relate to priority removal notices, will no doubt be debated as part of our consideration.

The hon. Gentleman also asked me whether a child rights impact assessment has been carried out on clauses 16 to 23. As part of our obligations under the public sector equality duty, equality impact assessments have been completed in respect of these clauses, and those assessments incorporate a consideration of the impacts on children.

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

Having looked at the amendments, I think amendment 153 is more substantive than my amendments 36 and 37. On the understanding that the spokesperson for the Scottish National party, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, will be pressing amendment 153 to a vote, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Roger Gale Roger Gale Conservative, North Thanet 11:00 am, 26th October 2021

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

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

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

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

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

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

(d) who has experienced sexual violence;

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

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

(g) who has been a victim of torture;

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

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

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

Question put, That the amendment be made.

Division number 15 Nationality and Borders Bill — Clause 16 - Provision of evidence in support of protection or human rights claim

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.

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

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

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

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

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

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

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

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

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

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

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

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

Photo of Roger Gale Roger Gale Conservative, North Thanet

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

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

Division number 16 Nationality and Borders Bill — Clause 16 - Provision of evidence in support of protection or human rights claim

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 16 ordered to stand part of the Bill.