Clause 23 - Late provision of evidence in asylum or human rights claim: weight

Nationality and Borders Bill – in a Public Bill Committee at 3:00 pm on 26th October 2021.

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Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs) 3:00 pm, 26th October 2021

I beg to move amendment 43, in clause 23, page 26, line 38, leave out subsection (2) and insert—

“(2) Where subsection (1) applies, the deciding authority must have regard to the fact of the evidence being provided late and any reasons why it was provided late in considering it and determining the claim or appeal.”

This amendment would remove the provision which states that “minimal weight” should be given to any evidence provided late.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to discuss the following:

Amendment 38, in clause 23, page 26, line 40, at end insert—

“(2A) Subsection (2) does not apply where—

(a) the claimant’s claim is based on their sexual orientation or gender identity; or

(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom.”.

This amendment would remove the direction to the deciding authority to give minimal weight to evidence provided late in cases where an asylum claim or human rights claim is based on issues of sexual orientation or gender identity; or where the claimant was under 18 when they arrived in the UK.

Amendment 131, in clause 23, page 26, after line 40, insert—

“(2A) The deciding authority must accept that there are good reasons why the evidence was provided late where—

(a) the claimant’s claim is based on sexual orientation, gender identity, gender expression or sex characteristics;

(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom;

(c) the claimant’s claim is based on gender-based violence;

(d) the claimant has experienced sexual violence;

(e) the claimant is a victim of modern slavery or trafficking;

(f) the claimant is suffering from a mental health condition or impairment;

(g) the claimant has been a victim of torture;

(h) the claimant is suffering from a serious physical disability;

(i) the claimant is suffering from other serious physical health conditions or illnesses.”

This amendment sets out the circumstances where the deciding authority must accept that there were good reasons for providing evidence late.

Amendment 44, in clause 23, page 27, line 13, at end insert—

“(6B) This section does not apply where the evidence provided proves that a claimant is at risk of persecution by the Taliban.”

This amendment would disapply Clause 23 (under which minimal weight is given to any evidence provided late) in respect of claimants who are at risk of persecution by the Taliban.

Clause stand part.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

The clause is similar in nature to clauses we have debated already, and most of the amendments address similar issues. It is about penalties for providing evidence after a specified cut-off date. Amendment 43 makes the point, again, that we regard it as legitimate to ask a decision maker to take account of the fact that evidence was provided late and the reasons for that, but it should not tell a decision maker what to conclude. We have also added our names in support of amendment 131, which seeks to ensure an acknowledgement of how difficult the process of the provision of evidence can be for certain categories of claimant, and the inappropriateness of fixing hard and fast deadlines.

It is important to say that the clause is even more objectionable and even more dangerous than the ones we debated earlier. It does not just require a decision maker to regard late evident without explanation as damaging credibility to whatever extent the decision maker thinks fit; rather, it provides that in considering evidence that is provided late, they must

“have regard to the principle that minimal weight should be given to the evidence.”

To my mind, that is a frankly outrageous proposition. Parliament cannot tell decision makers what weight to give to evidence that we cannot know anything about. The evidence does not exist yet. It is the decision makers who see and hear the evidence—we do not. We are just guessing what the evidence might be.

Amendment 44 is a bit different. It provides an example and illustrates the absurdity of the provisions that we have been debating so far. It would mean that the clause did not apply where the evidence provided proves that a claimant is at risk of persecution by the Taliban. Let us say that a claimant from Afghanistan provides very little evidence of particular individual risk, but then—we might say through sheer stupidity or stubbornness—they provide late evidence that shows conclusively that they are at specific risk from the Taliban. How on earth could we then say that that evidence should be given minimal weight? Perhaps the evidence is a threatening letter. Perhaps it is a photo showing torture or punishment. Perhaps it is news footage of the Taliban condemning the claimant publicly and offering a bounty for his capture. How does the clause operate in those circumstances? Why should minimal weight be given to something that is conclusive or clear? Are we going to remove people to Afghanistan even if we know that they are at risk, simply because of this outrageous provision? The whole idea is dangerous and absurd.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office) 3:15 pm, 26th October 2021

I will speak to amendments 38 and 131, and will seek to press amendment 131.

We do not believe that it is fair that some evidence is deemed to have minimal weight when there are practical and psychological reasons that it cannot be disclosed by a particular date. We have grave concerns about the clause, in particular because of the awful impact it could have on vulnerable women and other groups such as the LGBT+ community. That is why we have tabled the amendments. We want a cast-iron and legal guarantee that groups who have good reasons for late evidence are protected under the law. Otherwise, there is a danger that the persecution they have fled will be compounded by the inappropriate disregard of their late evidence.

The clause instructs decision makers to give regard to the principle that minimal weight be given to later evidence unless there are good reasons, which are undefined in the Bill and are therefore left entirely to the discretion of the Home Secretary. There are many good reasons why, for instance, women who have fled sexual and gender-based violence cannot share relevant experiences right away. This is even acknowledged in Home Office guidance that refers to

“guilt, shame, and concerns about family ‘honour’, or fear of family members”.

The same guidance acknowledges that women who have been trafficked to the UK may be facing threats from their traffickers at the time of their interview, such that they are unable to speak openly. Some women who have fled persecution because of their sexual orientation are not able to disclose their sexuality during the time of their initial claim. They may still be coming to terms with it themselves—a process that can take years. Other women or people who have fled sexual violence or torture may be suffering from post-traumatic stress disorder, and may experience disassociation from their experiences, which is a well-known psychological phenomenon in the aftermath of sexual violence.

Women therefore already face significant barriers to the full investigation and recognition of their protection claims. The clauses on late evidence will worsen those obstacles if they are not given additional protections. As well as causing harm to women in desperate need of safety, if unamended the clause will lead to greater unfairness in the system, an increasing number of incorrect decisions and ultimately, therefore, an increase in the backlog of cases.

With reference to women and late evidence, the Bill taken as a whole goes directly against Home Office policy, which states that late disclosure should not automatically prejudice a woman’s credibility. The backlog of asylum cases urgently needs addressing, but restricting the ability of vulnerable women or other vulnerable people to bring evidence is neither a fair nor an effective solution. That is why we believe the amendment that provides the specific categories as set out is so needed.

Introducing a rigid deadline for providing evidence and penalising those who provide late evidence also risks negatively impacting trans people specifically from applying for asylum. Trans people already face difficulty in “proving” their gender identity, due to the innateness of someone’s gender identity together with social expectations and stereotypes ostracising a population of trans people from protection. We see a similar difficulty in respect of other LGBT+ identities in so far as it is by nature next to impossible to prove something so intimate, without its becoming disproportionately invasive. Therefore we believe that these groups, too, are adversely impacted by the provisions around late evidence.

For people under 18, there are obvious reasons why their evidence may be late. It seems ridiculous that without amendment, the clause seriously suggests that we punish children by giving their evidence less weight if they cannot meet an arbitrary date. How on earth is it appropriate that children who may have escaped the worst imaginable situations, and who are likely to be suffering from trauma, are then further traumatised with arbitrary conditions placed on evidence and its weight?

Clause 23 creates the principle that a decision maker must give minimal weight to evidence raised late by a claimant, unless there are good reasons why that evidence was provided late. We are deeply concerned about the clause and the impact of the Bill’s measures around delayed disclosure in part 2. There are many reasons why it may not be possible to present all information in support of an asylum claim at the earliest opportunity. Women who have been trafficked to the UK may be facing threats from their traffickers at the time of interview. Others who have fled persecution because of their sexual orientation may be unable to disclose their sexuality during the time of their initial claim. They may still be coming to terms with themselves—a process that can take years.

If implemented, the Government’s proposals would adversely impact those vulnerable people. We propose that the Government introduce a cast-iron legal guarantee that groups that have a good reason for late evidence are protected under the law. Failing to do so risks penalising the most vulnerable people and those who have been failed by the system.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

Clause 23 is deeply pernicious and comes at a time that suggests that the Government have rushed this legislation. Last Tuesday, there was a meeting between the Prime Minister’s special envoy for freedom of religion or belief and Sir Edward Leigh. That meeting was to discuss the case of Maira Shahbaz, a 15-year-old Christian who has fled Pakistan having been kidnapped, forced to convert religion and forced to marry one of the men who kidnapped her. She managed to escape and is seeking asylum, but she was held for a significant time, so she would not necessarily meet the original timeframe and she might fall foul of the measures in this legislation.

For the Prime Minister’s special envoy to be willing to meet and discuss that case suggests that there should be a process by which someone in those circumstances is able to avoid the provisions of this legislation. I am deeply concerned that one bit of the Government are off having discussions elsewhere, while the Home Office is bringing forward plans that could prevent someone in those exact circumstances from benefiting from any exemptions they might have discussed in that meeting last Tuesday. It suggests once again that this is more about culture wars and headlines than it is about the practical reality of the system that exists or building towards a system that is fairer, more effective and faster.

I wanted to quickly raise issues around sexuality. I am deeply grateful to Rainbow Migration, who provided some examples and evidence for the Committee to all members. It said that clause 23 specifically

“would be acutely detrimental to LGBT+ people because of the difficulties in gathering and providing evidence that helps 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…in the UK”,

never mind in regimes where it is specifically illegal or unlawful, and could be punished.

Earlier, I asked the Minister what a gay man would need to provide to meet the initial evidence threshold, to avoid PRNs and to avoid being punished by clause 23. If someone has been persecuted on the grounds of their sexuality—persecuted for having the temerity to fall in love with someone of the same gender—in their country of birth, they may inevitably worry about revealing that identity, having managed to escape such an horrific regime.

I ask the Minister again to explore some of the practical realities of those circumstances before penalising someone specifically on the grounds of sexuality, because I think that it will fall foul of existing UK law, if not other international obligations. I am very mindful that I have a live case of a gay man trying to flee Lebanon where he is being forced, as the only son in a family, to marry against his wishes. He is seeking to escape Lebanon in order to not be forced to subjugate his sexuality in the interests of his family’s wishes.

I hope that the Minister can give more information on what the burden of proof would be, because I do not understand. Producing a boyfriend or girlfriend, or a love letter from someone still living in a regime where it is impossible to do that, will not necessarily be possible; yet the Government are legislating to penalise people in exactly those circumstances. Members across the House are deeply worried about the implications of such a measure.

On 3 February 2020, the Home Office was asked in question 11509 when it

“plans to update the House on the progress of the review into the way asylum claims based on religious grounds and LGBT+ grounds are assessed.”

The response was:

“The review into the way asylum claims on the basis of religious and LGBT+ grounds are assessed has been completed.”

That review has never been published. The Government refused to publish it in February last year, and they have refused to do so in answer to many subsequent questions. It is troubling that, while the Government withhold information on how existing processes have not necessarily dealt with faith and sexuality-based cases very well, we now have measures before us that deliberately penalise people who will find it harder to prove discrimination or persecution on faith and sexuality grounds. I hope that the Minister will agree that the review should be made public during the Bill’s passage, and certainly before anyone is penalised and has their case impeded on those grounds.

We talked about PTSD. Under clause 23 someone could face having their case undermined before their PTSD symptoms were, importantly, fully diagnosed. I will not repeat what I said this morning, but it would be ludicrous to legislate that someone be forced to have that diagnosis when they cannot access healthcare and not all symptoms will necessarily be evident.

Finally, the Anti Trafficking and Labour Exploitation Unit has provided a case of a Nigerian woman whom it has just listed as “X”. Promised a career in the UK as a hairdresser, she was forced into sex work, when in the UK, for nearly a year before she managed to escape. She was unable to meet the time limit, could be subject to a PRN and could be subject to clause 23 if she finally makes a case. The Minister had said that trafficking victims would not be subject to those provisions; but the Home Office initially declared that specific woman, X, not to be a victim of trafficking. By the time the Home Office had admitted its mistake, she could have gone through that process. She could have had the PRN imposed before the Home Office was willing to accept that, and before she had the legal advice to support her to make the case that proved she was the victim of human trafficking. I see no safeguards before us today that would prevent her from being subject to clause 23, and having less weight applied to her case or being removed from the country before she could make that case. The Government need to come forward with more safeguards before they progress these measures any further.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 3:30 pm, 26th October 2021

I thank hon. Members for raising these important issues. 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 participate fully 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, because of a lack of trust in the authorities or because of the sensitive and personal nature of their claim. That is why clause 16, together with clauses 17 and 23, provides for good reasons why evidence might be provided late. What constitutes “good reasons” has not been defined in the Bill, because to do so 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 where an expert report is not available. 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.

Amendment 43 would effectively remove the minimal weight principle; it would disapply the requirement for a decision maker to have regard to the principle that minimal weight should be given to late evidence for two categories of people. The amendments fail to take into account the fact that decision makers will have discretion in how they apply the principle that minimal weight should be given to late evidence, and that they may choose not to apply the principle in any given case. Clause 23 does not create a provision whereby decision makers are required to give late evidence minimal weight; they are required only to have regard to the principle, which they can choose to disregard.

Amendment 131 would place a statutory obligation on decision makers to accept that there are good reasons for late evidence where an individual’s claim is based on certain factors, or the individual falls into a particular category. That would apply to Home Office decision makers as well as the judiciary. Compelling a judge to accept good reasons for late evidence based solely on the grounds of the person’s claim raises significant issues and interferes with their fact-finding role. It also ignores the possibility that a claim may fall within a particular category or a person may identify as one of the listed categories, but their evidence may be late for unrelated reasons. The amendment would therefore create a blanket acceptance of late evidence in specific prescribed circumstances, and yet a vulnerable individual who did not fall within the specified groups might have late evidence and face a different test for whether or not they have good reasons. We feel that is unfair.

On amendment 44, this country has a proud history of welcoming with open arms those who require its protection. That includes circumstances where, as in Afghanistan, a significant change in circumstances means a sudden shift in a country’s security situation. Where evidence is brought late on account of such a change, that is clearly capable of falling within the “good reasons” consideration, so there is no need to make specific provision in relation to a fear of the Taliban.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

But what would happen in the hypothetical example I gave, where there was not good reason? The guy was a bit stubborn and did not think he should have to go through this process; he thought he should have had some automatic leave. I am still at a loss to understand what it means for the decision maker to have regard to the principle that minimal weight should be given to the evidence. I do not understand the expression. How does that work in the context of the hypothetical example I gave?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I will come back to that point and try to give the hon. Gentleman some further clarity, which I hope will be helpful. I will make the point again that, in the current circumstances that we find ourselves in regarding Afghanistan, people are not being removed there.

Of course, all the relevant information is taken into consideration when reaching decisions on individual cases. For example, if there is an assessment that a particular country is safe but for a particular individual there are grounds whereby it is not safe for them in their circumstances, that is reflected in the decisions that are taken.

To finish the point about amendment 44, it would create a system where those with a fear of the Taliban were treated differently from all other asylum seekers, no matter the risks they faced or the vulnerabilities of the individuals involved, simply on the basis of where they were from. That is discriminatory and cannot be right.

On the point about how decision makers can be told that they must apply minimal weight to evidence, clause 23 does not create a requirement for Home Office decision makers or the judiciary to give late evidence, following the receipt of an evidence notice or a priority removal notice, minimal weight. In protection and human rights claims, decision makers must have regard to the principle that minimal weight will be given to any late evidence, but they can consider the principle and determine that it should not be applied in a particular case.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I have made that point previously and I have reiterated it now for the record. I will give way to the hon. Gentleman, but I have made the point pretty clear.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

The Minister suggests there is clarity where no clarity exists. If the clause is not to reduce the weight that the evidence is given, what exactly is it there for? Is he suggesting that he will withdraw it?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

No, that is not for a moment what I am suggesting. The point that I am making is that, as I have alluded to on many occasions in relation to the clauses that we have considered, we want decision makers to have the appropriate discretion within the framework that we are establishing through the Bill. We think that is the right approach to reach the right decisions in individual cases, taking into account all the relevant circumstances and all the relevant information that is provided. We think that is the right way to proceed. More detail will of course be set out in the guidance.

The hon. Gentleman earlier alluded to very difficult circumstances that a particular individual has found challenging to talk about and disclose. I repeat that caseworkers are trained to be sympathetic to circumstances. The burden of proof, as he described it, will be set out in the guidance that follows. Again, I want to see proper discretion and proper consideration of cases on a case-by-case basis. That is the right and proper way to address such matters.

All individuals should be treated with respect by having proper consideration given to their case. As I said, the detail will be established in the guidance. There will also be training for decision makers, but there is already training for decision makers to ensure that they are sympathetic to the sorts of issues that the hon. Gentleman has raised.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

With the best will in the world, no amount of training will change the fact that, even if someone has come out in the UK, the Bill makes it harder for gay men in particular from certain countries. What do they need to provide to prove that they would face homophobic persecution if they went back? What do they need to show or do? I want a practical example of how it will work in practice. I cannot believe that one even exists at the moment.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am sure the hon. Gentleman will understand why it is difficult to set out in the Bill all the circumstances that would capture all the situations that individuals face in relation to such matters. It is just not possible to do that, which is why we are saying that we will establish that in the guidance that will be published if and when the Bill becomes law, as I hope it will. The guidance will set out the circumstances and the way that cases will be considered. Again, that discretion, flexibility and consideration will be shown to individual cases.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am conscious that we are going over this ground repeatedly, but I will give the hon. Gentleman the opportunity to intervene again.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

Is the Minister saying that the guidance will set out what a gay man needs to provide in order to prove that they will face persecution? I think and hope that is what he is saying, and I hope that he will say why the Home Office has not published the review it has already undertaken of the existing process and when it will be published.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am not familiar with the review to which he refers, but the hon. Gentleman will appreciate that I have been in this role only for the past four weeks. However, I will go away and look into that.

I can only repeat the point that we will set out in guidance the relevant factors that will be taken into consideration when cases are determined. I would expect there to be sympathetic consideration of people’s individual circumstances. I have also made that point at the Dispatch Box when we have talked about the operationalisation of the policy. Of course, it is right that that information is established in full. With that, I encourage the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw his amendment.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I am grateful to the Minister for his answer. At points, he did sound almost reassuring, but the problem is that he sounds reassuring when he says, essentially, “This clause will not have any effect,” suggesting that decision makers will be able just to have regard to all the circumstances on a case-by-case basis. That is what decision makers do anyway without the need for this myriad of statute provisions telling them what to think about a, b, c and the weight to be applied to evidence here, there and everywhere. While I take at face value his intention—I think we probably intend the same thing—that my Afghan example would not end up with conclusive evidence being disregarded because the man was stubborn or behaved in a stupid way because he was at risk, I still find the wording in the clause troubling. I hope the Home Office will think again.

In the meantime, we have pressed similar amendments to a vote, so I do not need to do so again. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 131, in clause 23, page 26, after line 40, insert—

“(2A) The deciding authority must accept that there are good reasons why the evidence was provided late where—

(a) the claimant’s claim is based on sexual orientation, gender identity, gender expression or sex characteristics;

(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom;

(c) the claimant’s claim is based on gender-based violence;

(d) the claimant has experienced sexual violence;

(e) the claimant is a victim of modern slavery or trafficking;

(f) the claimant is suffering from a mental health condition or impairment;

(g) the claimant has been a victim of torture;

(h) the claimant is suffering from a serious physical disability;

save-line2(i) the claimant is suffering from other serious physical health conditions or illnesses.”—

This amendment sets out the circumstances where the deciding authority must accept that there were good reasons for providing evidence late.

Question put, That the amendment be made.

Division number 24 Nationality and Borders Bill — Clause 23 - Late provision of evidence in asylum or human rights claim: weight

Aye: 6 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 6, Noes 7.

Question accordingly negatived.

Question put, That the clause 23 stand part of the Bill.

The Committee divided: Ayes 7, Noes 6.

Question accordingly agreed to.

Clause 23 ordered to stand part of the Bill.