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

Part of Nationality and Borders Bill – in a Public Bill Committee at 11:15 am on 26 October 2021.

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Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 11:15, 26 October 2021

Amendment 39 would render clause 17 inoperable. Clause 17 introduces two new behaviours into section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. That section provides that a decision maker shall take account, as damaging the claimant’s credibility, of the behaviour to which the section applies. Without the consequent amendment to section 8, which amendment 39 seeks to remove, there is no penalty for late evidence or not acting in good faith, which would make such a measure inappropriate for primary legislation and would also render it pointless.

Clause 17 is not prescriptive as to how decision makers, within both the Home Office and the judiciary, determine credibility or the claim itself. It has always been the case that decision makers must consider egregious conduct by the claimant. It is then open to the Home Office or the courts to decide the extent to which credibility should subsequently be damaged. Amendment 39 simply seeks to do away with that well established principle.

Let me build on the point about the judiciary and the point that was raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. He asked, “Aren’t judges best placed to determine the credibility that evidence should have? Why be prescriptive?” The point that I will make in response is that clause 17 is not prescriptive as to how judges determine credibility or the claim itself. It adds two new behaviours to the existing section 8 of the 2004 Act. That section provides that a decision maker shall take account, as damaging the claimant’s credibility, of the behaviour to which the section applies. I think it is important to clarify this. It should be noted that clause 17 applies to all decision makers. That includes Home Office staff who make the initial decision on protection and human rights claims. Clause 17 adds new behaviours to the existing behaviours that should already be taken into account as damaging to credibility under section 8 of the 2004 Act. The concept that certain conduct should be damaging to credibility is nothing new. It has always been the case that decision makers must consider egregious conduct by the claimant. It is then open to the Home Office or the courts to decide the extent to which credibility should subsequently be damaged.

Clause 17 will also not be determinative of a claim. Decision makers will still be required to consider the claimant’s credibility in the round, as they would currently as part of their decision-making processes.