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 10:30 am on 26th October 2021.

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Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark 10:30 am, 26th October 2021

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?