New Clause 25 - Asylum visa for persons in France

Nationality and Borders Bill – in a Public Bill Committee at 2:45 pm on 4th November 2021.

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‘(1) On an application by a person (“P”) to the appropriate decision-maker for entry clearance, the appropriate decision-maker must grant P entry clearance if he is satisfied that P is a relevant person.

(2) For the purposes of paragraph (1), P is a relevant person if—

(a) P is in France on the date of application;

(b) P is not a national of a member State of the European Union or a national of Liechtenstein, Iceland, Norway or Switzerland;

(c) P intends to make a protection claim in the United Kingdom;

(d) P‘s protection claim, if made in the United Kingdom, would have a realistic prospect of success; and

(e) there are good reasons why P’s protection claim should be considered in the United Kingdom.

(3) For the purposes of paragraph (2)(e), in deciding whether there are good reasons why P‘s protection claim should be considered in the United Kingdom, the appropriate decision-maker shall take into account—

(a) the relative strength of P‘s family and other ties to the United Kingdom;

(b) the relative strength of P‘s family and other ties to France;

(c) P‘s mental and physical health and any particular vulnerabilities that P has; and

(d) any other matter that the appropriate decision-maker thinks relevant.

(4) For the purposes of an application under paragraph (1), the appropriate decision-maker must waive any of the requirements in paragraph (5) if satisfied that P cannot reasonably be expected to comply with them.

(5) The requirements in this paragraph are—

(a) any requirement prescribed (whether by immigration rules or otherwise) under section 50 of the Immigration, Asylum and Nationality Act 2006; and

(b) any requirement prescribed by regulations made under sections 5, 6, 7 or 8 of the UK Borders Act 2007 (biometric registration).

(6) No fee may be charged for the making of an application under paragraph (1).

(7) An entry clearance granted pursuant to paragraph (1) shall have effect as leave to enter for such period, being not less than six months, and on such conditions as the Secretary of State may prescribe by order.

(8) Upon a person entering the United Kingdom (within the meaning of section 11 of the Immigration Act 1971) pursuant to leave to enter given under paragraph (7), that person shall be deemed to have made a protection claim in the United Kingdom.

(9) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(10) After paragraph 30(1)(b) of Part 1 of Schedule 1 insert—

“; or

(c) are conferred by or under sections [Asylum visa for persons in France] and [Right of appeal against France asylum visa refusal] of the Nationality and Borders Act 2022.”

(11) In this section and in section [Right of appeal against France asylum visa refusal]—

“appropriate decision-maker” means a person authorised by the Secretary of State by rules made under section 3 of the Immigration Act 1971 to grant an entry clearance under paragraph (1);

“entry clearance” has the same meaning as in section 33(1) of the Immigration Act 1971;

“protection claim”, in relation to a person, means a claim that to remove him from or require him to leave the United Kingdom would be inconsistent with the United Kingdom’s obligations—

(a) under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention;

(b) in relation to persons entitled to a grant of humanitarian protection; or

(c) under Articles 2 or 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950.’ —

This new clause would provide for a person in France to be granted entry clearance to allow them to claim asylum in the UK in certain circumstances.

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to discuss new clause 26— Right of appeal against France asylum visa refusal—

‘(1) If an application by a person (“P”) for entry clearance under clause [Asylum visa for persons in France] is refused by the appropriate decision-maker, P may appeal to the First-tier Tribunal against the refusal.

(2) The following provisions of, or made under, the Nationality, Immigration and Asylum Act 2002 have effect in relation to an appeal under these Regulations to the First-tier Tribunal as if it were an appeal against a decision of the Secretary of State under section 82(1) of that Act (right of appeal to the Tribunal)—

(a) section 84 (grounds of appeal), as though the sole permitted ground of appeal was that the appropriate decision-maker was wrong to conclude that P was not a relevant person;

(b) section 85(1) to (4) (matters to be considered);

(c) section 86 (determination of appeal);

(d) section 105 and any regulations made under that section; and

(e) section 106 and any rules made pursuant to that section.

(3) In an appeal under this section, the First-tier Tribunal—

(a) shall allow the appeal if it is satisfied that P is a relevant person; and

(b) shall otherwise dismiss the appeal.

(4) In an appeal under this section, in deciding whether there are good reasons why P‘s protection claim should be considered in the United Kingdom, the First-tier Tribunal shall apply section [Asylum visa for persons in France] (3) as though for the words “appropriate decision-maker” there were substituted the words “First-tier Tribunal”.’

This new clause would allow a person whose application for entry clearance under clause [Asylum visa for persons in France] has been rejected to appeal to the First-tier Tribunal.

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

New clause 25 proposes a humanitarian visa route, and new clause 26 grants a right of appeal—something that made Tory MPs very excitable yesterday. I do not intend to push the new clauses to a vote; they are aimed at opening dialogue, and they link back to the points made by my hon. Friend the Member for Sheffield Central.

If the Government are serious about finding solutions to people smuggling and trafficking, they should consider providing practical routes for people seeking sanctuary, in the way that they do for Syria and Afghanistan, and undertake to review humanitarian routes and how they could work. I thank Bella Sankey of Detention Action for her work on these clauses. There are some fantastic people working on these issues.

The purpose of the new clauses is to offer the Government a constructive solution for safe routes. They would have the benefit of cutting smuggling and potentially saving money in the long term. If they are serious about safe and regular routes, the humanitarian visa option would create them. The new clauses also make use of the border anomaly in Calais.

The Government should commit to exploring safe routes if they are serious about preventing dangerous options. The example from Detention Action is of Dylan Footohi, an Iranian refugee who says,

“I came to the UK seeking asylum. I came irregularly simply because there was no legal way for me to do so. My journey to the UK took two years; two years of exploitation and abuse and life-threatening experiences.”

He felt that that way was the only option. If there had been an alternative, he would have taken it. These new clauses offer that alternative.

The new clauses provide for certain persons in France to be granted entry clearance to allow them to claim asylum in the UK. The new clauses set out who qualifies: they have to be in France; they cannot be an EU national or a national of Liechtenstein, Iceland, Norway or Switzerland; they have to intend to make a protection claim in the UK; their protection claim, if made in the UK, must have a realistic prospect of success; and there must be good reasons why their protection claim should be considered in the UK.

The first three criteria are self-explanatory. The fourth criterion—the realistic prospect of success—is a well-established test in UK immigration law. It is used in paragraph 353 of the immigration rules, which deals with a person who has been refused asylum and has later made further submissions on asylum grounds and says that they have a fresh right of appeal against the refusal of their further submissions. Home Office officials, courts and tribunals are well used to applying that test. The leading case on the realistic prospect of success is WM (DRC) [2006] EWCA Civ 1495.

To give an example of how the criterion could work in practice, applicant X applies for a France asylum visa. She is from country A and claims that she is wanted by the authorities of country A for a political offence. The applicable country guidance accepts that if a person is detained for political offence in country A, they are likely to be subjected to serious ill-treatment, so if applicant X’s claim is found to be credible she would be entitled to asylum. The appropriate decision maker believes that applicant X is credible. Applicant X’s claim is likely to have realistic prospect of success, so the criterion is likely to be satisfied. I will keep examples brief in the interest of time.

The fifth criterion is about good reasons and is intentionally open-ended. It allows the appropriate decision maker to make a fact-sensitive evaluation of the merits of the case. In considering whether there are good reasons, the decision maker will take into account the relative strength of their family or other ties to the UK and France; their mental and physical health and any particular vulnerabilities; and any other matter the decision maker thinks is relevant.

To give a brief example, applicant X applies for a France asylum visa. She is street homeless in France due to a shortage of available accommodation. She has PTSD and depression as a result of being tortured and has not been able to seek treatment due to her insecure living situation. She has no family and friends in France but has a brother in the UK with whom she has a close relationship and who could support her if she were here. She speaks good English but does not speak French. There are likely to be good reasons for her claim to be dealt with in the UK, so the criterion is likely to be satisfied. That is an illustrative example, but decision makers would make up their minds on the facts of each individual case, having regard to all relevant factors.

The procedure for making the application would be to the appropriate decision maker—an entry clearance officer authorised by the Secretary of State—and they would be required to waive biometric and other procedural requirements if satisfied that the applicant could not be reasonably expected to comply. There would be no fee for the application.

The successful applicant would be given leave to enter for a period of not less than six months, prescribed by the Secretary of State, who would also prescribe the conditions of such leave. On arrival, they would be deemed to have made a protection claim in the UK and go through the normal asylum process. They would have access to legal aid and there would be a right of appeal in the first-tier tribunal against the refusal of a France asylum visa application. That would be a full merits appeal and would not be limited to a review of the original decision-maker’s decision. The tribunal will decide for itself whether the criteria are met.

That appeal process utilises the existing machinery of immigration appeals under the Nationality, Immigration and Asylum Act 2002. There would be onward rights of appeal to the upper tribunal and Court of Appeal under sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007, as with other types of immigration appeal.

I ask that the Government consider those practical solutions that could take the power away from people smugglers and traffickers, who the Minister routinely calls evil, with which I agree, while honouring our commitment to the refugee convention. I commend the new clauses to the Committee.

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

I am grateful to the hon. Gentleman for tabling the new clauses; it is fair to say that during the course of the Committee we have had many debates around many aspects of what they refer to. The Government’s position is clear: we are trying to stop dangerous journeys wholesale—in relation not just to the channel, but to the Mediterranean. We believe in upholding the long-standing principle that people should claim asylum in the first safe country that they reach. Of course, people should also avail themselves of our safe and legal routes. With that, I urge the hon. Gentleman to withdraw the new clause.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark 3:00 pm, 4th November 2021

I do not think that even the Home Office impact assessment of the Bill accepts what the Minister has just said, because it says that Bill compels some people to take dangerous routes. As I said at the start, however, this is just a probing set of new clauses. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.