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 10:45 am on 26th October 2021.

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Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 10:45 am, 26th October 2021

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.