Clause 17 - Asylum or human rights claim: damage to claimant’s credibility

Part of Nationality and Borders Bill – in a Public Bill Committee at 11:00 am on 26 October 2021.

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Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office) 11:00, 26 October 2021

As with clause 16, the Opposition are deeply concerned that clause 17 will contribute to a culture of disbelief that will harm vulnerable people who deserve our support. We will oppose the clause because we do not believe there is any way that it can be amended to be more reasonable. Clause 17 builds on the false premise established by clause 16 that evidence given after a certain date lessens the weight and, in turn, the credibility of the claimant. Clause 17 would extend that to the possible use of evidence in appeals.

Before I go further, I would like to draw the Committee’s attention once again to the startling statistics I referred to in the debate on clause 16. I do not believe they can be stated enough to illustrate the fallacy inherent in the culture of disbelief being pushed by the Government. Let me state again for the record: the proportion of successful asylum appeals allowed in the year up to March 2021 was 47%, and that has been steadily increasing over the past decade.

That is in a context where legal aid has been decimated. The Home Office is notoriously floundering with delays and a sclerotic process within the context of the hostile environment encouraged by the Government. If with those factors, nearly half of appeals are successful, how on earth can the Minister think it is fair to introduce another arbitrary hurdle for vulnerable people? What kind of civilised society implies that people who have escaped the most horrific situations imaginable are likely to be acting in bad faith? Clause 17, along with clause 16, will shame us and UK values if it reaches the statute book.

All the arguments that apply to clause 16 apply once again. As Ministers well know, there are many reasons why people who are escaping sexual abuse, gendered violence, torture and trauma cannot produce evidence by a particular date. Well-known psychological processes, such as dissociation, PTSD and denial of sexual trauma, militate against the so-called efficient delivery of evidence. That is before we get to the dysfunctional lack of legal aid and advice available, and the broken nature of the asylum system as a whole, as we discussed with reference to clause 16. Again, the Government seem to want to blame their own failings on vulnerable people, and scapegoat them for 11 years of a broken asylum system.

I will give an example of how unfair clause 17 is, and why someone’s credibility is in no way contingent on their ability to provide evidence by an arbitrary date. The example, concerning someone I will call “Gloria”, is a real case that was described to me by the excellent organisation Women for Refugee Women.

Gloria and her husband were supporters of the Opposition political party in the Democratic Republic of the Congo. When the Government started to suspect that her husband was talking to journalists about human rights abuses, they targeted both him and Gloria. Gloria was raped by soldiers and taken to prison. Upon release, she and her husband fled the Congo, but they were forced back into the DRC and targeted by the Government again. Gloria was violently raped again by several soldiers and held in a detention centre from where she was trafficked to the UK.

When she arrived here, Gloria was detained in a house and forced to have sex with several men for weeks, until a cleaner helped her to escape. This woman encouraged her to claim asylum, but Gloria was too scared to talk about her traffickers in the interview, so she could not explain why she had not claimed asylum earlier. Her male interpreter at the interview did not speak Lingala fluently and got angry with her when she tried to clarify points. She had no mental health support so was unable to discuss the extreme sexual violence she had experienced, and her lawyer never explained to her that the experience of being trafficked was relevant to her claim.

Gloria was refused asylum and taken to Yarl’s Wood, which she found highly traumatic, given her previous experience of incarceration in the DRC. She was released from Yarl’s Wood and then came to seek help from Women for Refugee Women, as she was homeless. She joined one of the organisation’s creative projects and, over time, began speaking about her story. Gloria now has a positive reasonable grounds decision and is preparing further submissions for a fresh asylum claim. Under clauses 16 and 17, Gloria could be prohibited from presenting evidence of the violence that she faced, with the ultimate risk of being returned to her persecutors. Gloria continues to suffer from post-traumatic stress disorder, depression and suicidal thoughts.

Surely when hearing of cases such as Gloria’s, Ministers must pause and realise that provisions such as clause 17 are inappropriate. Worse than that, calling into question the credibility of people who are traumatised is severely harmful. As discussed with reference to clause 16, the ultimate risk of undermining the credibility of applicants and denying the validity of their evidence is refoulement and is in contradiction of the refugee convention.

The one-stop process being proposed in the group of clauses that include clause 17 would force traumatised women to raise all the reasons why they need protection at the outset. If they fail to do so, their credibility could be damaged, according to the clause. It is worth stating again that, as with clause 16, this goes directly against the Home Office’s guidance, which states that late disclosure should not automatically prejudice a woman’s credibility.

As highlighted, moreover, many women do not realise that their experiences of gendered violence may constitute an asylum claim. Poor legal advice compounds that problem, so women do not raise these experiences in their initial claim. Clauses 16, 17 and 23 will result in more women being wrongly refused protection and so becoming liable for detention.

Clauses 16, 17 and 23 create a mechanism that forces people to produce relevant evidence by a fixed date. If that deadline is missed, the evidence could be given “minimal weight”, which will impact on a decision maker’s assessment of an applicant’s LGBT+ status and/or whether they have a well-founded fear of persecution. That would be acutely detrimental to LGBT+ people because of the difficulties in gathering and providing evidence that helps to confirm their sexual orientation or gender identity. Many LGBT+ people may have spent a long time trying to hide their sexual orientation or gender identity from other people not only in their countries of origin, but in the UK. Further, it can be an enormous challenge, if not impossible, to obtain supporting evidence from former partners, friends or family members in their country of origin, who can be too afraid to write a witness statement. For trans people specifically, many are unable to access healthcare in their countries of origin and to receive timely support in the UK, and, again, struggle to offer supporting evidence as a result.

If LGBT+ people get evidence such as letters from those who can testify to their sexual orientation or gender identity, proof of membership of LGBT+ organisations or photos at Pride, it may not be until they are more comfortable and confident in being open about their sexual orientation or gender identity, and therefore easily after any deadlines for evidence are imposed by the Home Office.

Clauses 17, 20 and 23 direct or encourage decision makers, including immigration judges on appeal, to exclude evidence or reject the credibility of a claimant. That exclusion or rejection is arbitrary. It is not on the basis of the decision maker’s assessment of the relevance or probity of the evidence or truthfulness of the claimant. It is not on the basis of any individual assessment of all the relevant material and circumstances.

Unless Ministers wish to make the charge that decision makers, whether Home Office staff or independent tribunal judges, are incapable of fulfilling their responsibilities, they must surely anticipate that this can only increase the likelihood that some people with good asylum claims are made unable to substantiate them. What then? It cannot be expected that people who are in real fear of persecution, for what will be good reasons, will be willing to accept a return to torture or execution, or some other serious harm. There will be greater obstruction to the Home Office, because it will be charged with carrying out the return of someone who, quite justifiably, will not co-operate and, similarly justifiably, will wish to take every opportunity, including by making a fresh claim and pursuing litigation—appeal or judicial review—to substantiate their good claim to be a refugee. Home Office and other limited public resources, including legal aid and court time, will be spent pursuing what should not be pursued and what may and, it must be hoped, will turn out to be unattainable. That will not merely add directly to delays and backlogs. It will have a wider impact in diminishing confidence in the asylum and immigration system, particularly where the treatment and outcomes for people are manifestly unequal for no reason properly related to the strength of their claim.

The Opposition are deeply concerned by clause 17. It will contribute to a culture of disbelief that will harm vulnerable people who deserve our support, including women such as Gloria. Under clauses 16 and 17, Gloria could be prohibited from presenting evidence of the violence that she faced, with the ultimate risk of being returned to her persecutors. That is unconscionable. We will therefore oppose this clause, as we do not believe that there is any way in which it can reasonably be made better.