Nationality and Borders Bill — House of Lords, 2022-02-03
Topic: Immigration
David Wolfson (Conservative, Centre-right): There are a number of ways of skinning this particular cat because there are separate amendments but common themes. If when I am about to sit down, I have not dealt with it fully, I am sure the noble Baroness will intervene, but I will try to come to Clause 25 head on However, I was going to go next to Amendments 82A and 82B, both in the name of the noble Baroness, Lady Hamwee. Different elements of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 have different thresholds in how they are applied to the facts of a case and how credibility is consequently damaged. Clause 18 is drafted to take this into account, so that decision-makers will take into account the relevant thresholds on a case-by-case basis. Clause 18 will encourage claimants to engage with the process in good faith and, along with the measures relating to late evidence in Clauses 17 and 25, to provide evidence in support of their claim at the earliest opportunity. As I said earlier, we think that by encouraging people to bring all their evidence upfront in protection or human rights claims, we can protect those who need protection and identify any unmeritorious claims as early as possible Turning to Amendment 82B, the good faith requirement is intended, as I think is obvious, to address behaviours that a deciding authority thinks are not in good faith. Where an individual who makes a protection or human rights claim exhibits a pattern of non-compliant behaviour during their dealings with immigration authorities, their credibility should be damaged to reflect that behaviour. It is also designed to stop claimants deliberately obstructing the one-stop and expedited judicial process—for example, by not taking up our enhanced legal aid offer and then making a last-minute claim based on lack of access to legal advice. The good faith requirement therefore goes further than the behaviours currently described in Section 8 of the 2004 Act. It puts beyond doubt that past behaviour that is deliberately designed to frustrate or delay proceedings should be damaging to the claimant’s credibility. We think that is right, for the reasons I have outlined I turn to Amendments 83 and 88, which would remove the credibility provisions in Clauses 18 and 21. For the reasons that I set out earlier, we think that it is entirely reasonable to require evidence in support of a protection of human rights claim, or a claim of being a victim of modern slavery, to be provided in a timely manner, unless there are good reasons why that is not possible However, I underline that a person’s credibility is not necessarily determinative of their claim under the current rules and procedures, and the Bill does not change that. Decision-makers will still be required to consider credibility in the round, as they currently do, and, where a person has raised evidence late, which causes delay and wasted resource, it is right that decision-makers consider whether there is any merit in the reasons for that lateness I turn now to Amendment 90A, again in the name of the noble Baroness, Lady Hamwee. We recognise that, due to an person’s individual circumstances, it may be harder for them to provide material in a timely manner. Since this is essentially an amendment to Amendment 90 in the name of the noble and learned Lord, Lord Etherton, I respectfully direct the noble Baroness to the response that I gave to the noble and learned Lord As I am on the noble and learned Lord’s amendments, I will now deal with Amendment 91 on reasonable grounds. It is right that, where an individual has been assessed as a priority for removal or deportation, they should avail themselves of the associated legal aid advice offer and provide any matters listed within Clause 19(3)(a) before the cut-off date and they should provide reasons for lateness where a late claim is raised, under subsection (7) Decision-makers cannot reasonably be expected to speculate on or investigate why an individual who has received a removal notice and associated legal aid advice offer would raise a late protection or human rights claim. If no reasons for lateness are provided, or if the reasons provided are not considered to be good reasons, it would be clear to the decision-maker that any appeal must be subject to the expedited appeals process. In answer to the noble and learned Lord, I say that the good reasons test is adequate and sufficient The clause already provides significant safeguards for recipients of a PRN in the form of the legal aid advice provision and the good reasons test for individuals who raise late claims. I set out earlier what those good reasons can amount to. It is a very open-ended test. Therefore, I respectfully suggest to the noble and learned Lord that the amendment is unnecessary and, indeed, would risk complicating an otherwise straightforward and, I suggest, suitable test I turn now to Amendment 95 in the name of the noble Baroness, Lady Coussins, but spoken to by the noble Baroness, Lady Lister. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers should have regard to the principle —I underline "principle"—that minimal weight is given to evidence that is late, following receipt of either an evidence notice or a priority removal notice, without good reason I will come to the thrust of Clause 25 in a second, but I will first say that this amendment would place an obligation on decision-makers, not only in the Home Office but also the judiciary, to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. That would remove the requirement that decision-makers should have regard to the principle that minimal weight should be given to the evidence. That would be the case even if the reason for lateness was wholly unconnected to the category of claim or the personal factors. No causal link between the two is set out in the amendment. I respectfully suggest that that is overly prescriptive and would tie the hands of the decision-maker. Of course, in all cases, the decision-maker can take these matters into account—