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 10:15 am on 26th October 2021.

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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.