Clause 61 - Special Immigration Appeals Commission

Nationality and Borders Bill – in a Public Bill Committee at 3:30 pm on 2nd November 2021.

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

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to consider Government new clause 11—Special Immigration Appeals Commission.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

Clause 61 is one of six clauses drafted as placeholder clauses, as we have said. New clause 11 is intended to replace clause 61. The new clause makes changes to the Special Immigration Appeals Commission Act 1997 that are required to safeguard sensitive material. Current legislation allows for any immigration appeals and those judicial review challenges against exclusion, deportation or naturalisation and citizenship decisions to be certified so that they are heard by the Special Immigration Appeals Commission if certain criteria are met. Where a case is heard by the Special Immigration Appeals Commission, sensitive information can be relied upon to defend the decision which, if publicly disclosed, would be damaging to the public interest.

Not all immigration decisions can currently be certified, however. For example, a person refused entry clearance as an investor, or who is seeking to work or study in the UK, cannot have their judicial review challenge to that refusal decision certified for SIAC. In contrast, a person appealing a decision to refuse them asylum could have the appeal against the refusal of their claim certified. The effect of not being able to certify a decision is that where there is a judicial review challenge to that decision a range of sensitive information that might otherwise be used to defend that challenge cannot always be disclosed. That has the potential to be damaging to national security.

The new clause will extend the power to certify immigration decisions to cover those cases that carry no right of appeal and where a JR challenging the decision cannot currently be certified. That will ensure that the JR can be heard before the Special Immigration Appeals Commission. The test for certifying immigration decisions is not being changed by the new clause. It will still require the Secretary of State to certify that the decision being taken relies partly or wholly on information that, in her opinion, should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.

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

New clause 11, which replaces clause 61, significantly expands the jurisdiction of the Special Immigration Appeals Commission. On the face of it, this is a highly draconian measure that has been introduced at a very late stage in the Bill’s passage through Parliament, limiting the scrutiny. The new clause will enable SIAC to consider applications and set aside immigration decisions where the Secretary of State certifies that information on which her decision is partly or wholly based should not be made public on national security grounds, in the interest of the relationship between the UK and another country or otherwise in the public interest.

That means that information relating to the decision will not only not be made public; it will also not be provided to the person to whom the decision applies. If we unpick that, the cases to which the new clause applies include a decision of the Secretary of State concerning an entitlement to enter, reside in or remain in the UK, or a person’s removal from the UK. We are therefore talking about not only immigration decisions but nationality decisions. The extended powers in the new clause affect not just foreign nationals but British citizens, and do not concern merely migrants but residents. It is a huge expansion of power, and when combined with broad interpretations of the public interest, as mentioned, the power will put British citizens and others with the right to remain at risk of being excluded from the UK. They will also be left with no information regarding why that decision has been made, because the Government believe that it is in the public interest to withhold it from them.

The new clause is not limited to cases where a person’s entitlement to enter or stay in the UK is said to be in the interest of national security; it applies also to cases where the denial is authorised by information that the Secretary of State says is in the public interest—information that is kept from the person affected. How are any of those people, including the British citizens, able to defend themselves against expulsion, or even exile, in such circumstances? The power given to the Secretary of State is enormous, and in practice the measures will curb justice by allowing the Secretary of State to process appeals by SIAC, instead of normal processes, denying people their rights to a full case.

The sector has long expressed concerns about the powers and procedures of SIAC, but the Government are seeking to extend the powers even further. It follows that the wider escalation of the Home Office power in the Bill, which will have a devastating consequence for vulnerable people, will also provide the lead for others to promote and encourage similar draconian measures in their immigration and asylum systems. We are opposed to new clause 11, because it will significantly expand the powers of SIAC and put British citizens—and other people who have or seek an entitlement to enter, reside or remain in the UK—at risk of being excluded from the UK or of being treated as having no right to be here.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury 3:45 pm, 2nd November 2021

Let me address a couple of points. Basically, the hon. Gentleman is asking whether SIAC involves a further erosion of civil liberties. The direct answer to that is no—if anything, it is quite the opposite. New clause 11 allows the specialist court the ability to consider all evidence relied on to ensure that cases may be both brought and properly defended. In addition, the special advocate system, the disclosure procedure used in such hearings and other safeguards are designed to provide individuals with substantial measures of procedural justice in their difficult circumstances when, in the public interest, material cannot be disclosed to them directly.

Question put and negatived.

Clause 61 accordingly disagreed to.