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

Part of 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

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.