Clause 25 - Claims certified as clearly unfounded: removal of right of appeal

Nationality and Borders Bill – in a Public Bill Committee at 3:45 pm on 26th October 2021.

Alert me about debates like this

Question proposed, That the clause stand part of the Bill.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 4:00 pm, 26th October 2021

Protection or human rights claims that are certified as clearly unfounded are those so clearly without substance that they are bound to fail. The refusal of such claims can currently be appealed after the person has left the UK. By contrast, there is no right of appeal against the rejection of further submissions received after a protection or human rights claim has previously been refused, where those submissions do not create a realistic prospect of success. That approach is right: there should be no right of appeal unless there is something of real substance for the tribunal to consider.

The clause removes the out-of-country right of appeal under section 94 of the Nationality, Immigration and Asylum Act 2002 for those whose protection or human rights claims are certified as clearly unfounded and bound to fail, bringing them into line with how we treat further submissions that have no realistic prospect of success. It will apply only to claims that are certified after the clause comes into effect. I would like to be clear that removing the right of appeal for certified claims does not prevent a person from applying for a judicial review to challenge a certification decision. It provides a necessary and effective safeguard in the event that a claim is incorrectly certified as clearly unfounded.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

It is ironic that we are debating this clause as the Judicial Review and Courts Bill is receiving its Second Reading. We oppose the clause. We have heard time and again that the Government are aiming to make it harder for a person in the UK to establish their refugee status and entitlement to asylum. Clause 25 further restricts appeal rights for people seeking asylum. This clause removes the in-country and out-of-country rights of appeal for human rights and protection claims certified as clearly unfounded. It is concerning as, once again, it seeks to limit the rights of individuals, while failing to increase efficiency in the system and in turn decreasing fairness, with regrettable consequences for individuals. In respect of articles 6 and 8 of the ECHR, it represents a clear breach and will give rise to legal challenge. That was seen in the case of Kiarie and Byndloss v. the Home Secretary in 2017. At present, where the Home Secretary certifies a case as clearly unfounded, any appeal may be brought only after removal from the UK. In cases concerning protection claims or article 3 human rights claims, such appeals are incapable of providing an effective remedy, because the feared harm will have eventuated before the appeal can be heard.

As the explanatory notes to the Bill acknowledge, the right of appeal is rarely exercised; instead, challenges are brought by way of judicial review. This provision therefore contributes to the general trend in immigration and asylum law away from rights of appeal to the First-tier Tribunal and towards unappealable decisions, which are amenable to judicial review.

For the reasons specified in my speech, we will oppose clause 25 standing part of the Bill.

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

Division number 25 Nationality and Borders Bill — Clause 23 - Late provision of evidence in asylum or human rights claim: weight

Aye: 7 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 6.

Question accordingly agreed to.

Clause 25 ordered to stand part of the Bill.