Legislative Scrutiny: Nationality and Borders Bill

We welcome the changes introduced by clauses 1, 2, 3, 4, 5, 6 and 7 to remove areas of historical discrimination in British nationality law.

We recommend that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of clause 1.

Those lacking full capacity should always have the requirement for full capacity waived if it is in their best interests to do so. We propose an amendment to section 44A BNA so that the Secretary of State “should” waive the requirement for a person to have full capacity if it is in the applicant’s best interests, so as not to unfairly disadvantage those lacking full capacity.

The Home Secretary should make clear how the discretion in clause 7 (new sections 4L and 4H BNA) will be exercised, for example by issuing guidance.

The Home Office must make clear whether or not any fees will be charged for an application under Part 1 of the NBB and, in particular, clauses 1, 2, 3 or 7. We urge the Home Secretary not to charge a fee for applications under this Part of the Bill as it would be wrong to charge people for rectifying historical discrimination against them. If any fees are charged, they must be set at affordable rates that do not effectively prevent certain categories of people, especially children, from accessing their right to nationality.

We consider that it is unlawful discrimination, contrary to Article 14 as read with Article 8 ECHR, to require a person to prove good character when remedying previous unlawful discrimination against that person. We therefore recommend that the clause 3(4) of the Bill be deleted.

The Secretary of State should clarify how she will exercise this discretion in clause 7 to take into account whether an applicant is of good character.

We reiterate concerns made by this Committee in previous Parliaments that requiring good character when considering applications resolving prior discrimination risks perpetuating the effects of discrimination for those previously discriminated against. Moreover, we also share the concerns raised by the JCHR in 2019 about the appropriateness of the good character requirements being applied to children, particularly children whose main or only real connection may be with the UK. It is difficult to align this requirement with the obligation to have the best interests of the child as a primary consideration. The Home Secretary should review the application of the good character requirement in Part 1 of the Bill and the BNA to ensure that it does not risk being applied in a way that risks perpetuating discrimination or in a way that would be contrary to the best interests of a child in an individual case.

The Government should clarify what steps it considers it is reasonable to expect a stateless child to take to acquire another nationality and whether there will be guidance making this clear. (Paragraph 56) 24 Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality

It is difficult to see how clause 9 complies with the UK’s obligations under both the 1961 Stateless Convention and the UN Convention on the Rights of the Child. Clause 9 should be amended—preferably to delete the clause altogether.

At a minimum two amendments should be made to clause 9(4). Firstly, to ensure that the best interests of the child are more central to decision-making, by adding into new paragraph 3A, sub-paragraph (2) of Schedule 2 BNA “(d) in all the circumstances, it would be in the best interests of the child for it to acquire the nationality in question”. Secondly, to ensure that, in line with the 1961 Statelessness Convention, British citizenship is only withheld where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles, by inserting into new paragraph 3A, sub-paragraph (2)(b) of Schedule 2 BNA, after “birth”, “without any legal or administrative obstacles”. (Paragraph 58) Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality 25 Declaration of interests Lord Brabazon of Tara • No relevant interests to declare Lord Dubs • Former Chief Executive of the Refugee Council Lord Henley • No relevant interests to declare Baroness Ludford • No relevant interests to declare Baroness Massey of Darwen • No relevant interests to declare Lord Singh of Wimbledon • No relevant interests to declare 26 Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality

Not only are the Masters of all ships bound to assist those whose lives are at risk at sea, but the UK is also bound to adopt measures to ensure that this is done, both under its general human rights obligations to take positive actions to respect the right to life, as well as under specific duties under maritime law, including SOLAS and UNCLOS.

The UK is bound, both under its general obligations to take positive actions to respect the right to life, as well as under specific duties under maritime law, including SOLAS, SAR and UNCLOS, to organise and deliver an effective search and rescue service to protect and save lives at sea.

The right to life is inherently engaged when people cross the Channel—a busy shipping lane, often with rough waters—in small unseaworthy vessels. This engages the responsibility of the State from which such boats embark to have taken reasonable measures to prevent people coming to harm at sea, for example by establishing a legal and operational framework to safeguard lives at sea, including by ensuring the seaworthiness of vessels, and by establishing systems to rescue anyone in distress within their search and rescue areas. Part of this includes taking reasonable measures to prevent people placing themselves (and others) in life-endangering situations, as well as to take enforcement action against those involved in human trafficking or slavery. It also engages the responsibility of any other States within whose territorial waters or search and rescue areas such boats pass to take reasonable action to save lives.

Under international maritime law, both UK and French authorities should cooperate to safeguard lives within the Channel and within their respective search and rescue zones. Moreover, where such boats cross into UK territorial waters and the UK search and rescue zone, it then becomes the responsibility of the UK authorities to take all reasonable actions to protect the right to life of those on board.

Pushbacks are known to endanger lives at sea. This is even more so when dealing with people on small, unseaworthy vessels, in a busy shipping lane, often with rough waters, without appropriate life-saving equipment, as is the case for migrants in small boats in the Channel. The obligations on the UK in such circumstances are to take all reasonable actions to save lives at sea—by establishing a legal and operational framework to ensure that those at risk at sea are rescued; by ensuring that masters of ships take action to save those in distress at sea; and by ensuring that its state agents take all reasonable steps to rescue those at risk at sea. A policy of pushbacks fails to comply with the obligations to save those in distress, contrary to the right to life and international maritime law. Moreover, pushbacks would do the opposite of what is required to save lives. Pushbacks would create a situation where state actors were actively placing individuals in situations that would increase the risk to life. Under the current conditions, we cannot see how a policy of pushbacks can be implemented without risking lives, contrary to the UK’s obligations under the right to life and international maritime law. (Paragraph 55) Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement 67

We are concerned that pushbacks under the proposed maritime enforcement powers could lead to situations where victims of slavery or human trafficking are not protected and where action is not taken to adequately investigate and prosecute perpetrators of slavery or human trafficking. We therefore do not see how a pushback policy under the proposed new maritime enforcement powers can be operated in compliance with the UK’s obligations to combat slavery and human trafficking, under Article 4 ECHR, Article 8 ICCPR, ECAT and the UN Palermo Protocol.

Pushbacks to France on the information currently available, would not necessarily breach the non-refoulement obligations under the Refugee Convention or the provisions of the ECHR prohibiting return on the grounds of Articles 2, 3 or 4 ECHR. However, that may not always be the case as it will depend both on conditions in France, and on whether the French asylum system continues to be adequate to ensure against refoulement contrary to the Refugee Convention and Articles 2, 3 or 4 of the ECHR. Moreover, the need for an individual assessment still applies.

The Government should respect its obligations under refugee law and human rights law to undertake individual assessments of asylum seekers, as well as its obligations not to frustrate the object and purpose of Protocol 4 relating to collective expulsions. It is now 58 years since the UK signed Protocol 4 to the ECHR; the Government should act promptly to ratify it.

It is difficult to see how it would ever be in the best interests of the child to be subject to pushback techniques at sea.

The Government should explain what action it would take in respect of children on a small boat crossing the Channel—and in particular how it would ensure that such actions respected the rights of the child as well as the human rights of all people in board.

In order to comply with the right to an effective remedy in Article 13 ECHR in respect of an asylum seeker, the UK would need to have processes in place to undertake an examination of an individual’s personal circumstances, to take an individual decision in respect of that person, to enable that person to be able to challenge that decision, and to have a remedy with suspensive effect for potential violations of Articles 2 and 3 ECHR. The absence of those processes in the case of proposed pushbacks in the Channel is likely to risk violating Article 13 ECHR, in conjunction with other rights engaged. (Paragraph 73) Maritime enforcement powers in the Nationality and Borders Bill

The maritime enforcement powers introduced by clause 44 and Schedule 6 to the Bill may be capable of being exercised compatibly with human rights. However, there are also significant risks that such powers can be exercised in a way that is not compatible with human rights. It would seem appropriate for the Home Secretary to specify more clearly how such powers will be exercised and how she will ensure that they are not exercised in a way that would violate human rights, for example the right to life. (Paragraph 85) 68 Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement

The Home Secretary should provide a detailed memorandum setting out clearly how maritime enforcement powers under amended Schedule 4A to the Immigration Act 1971 will be exercised, how human rights would be engaged by such maritime enforcement activity, and in particular how she will ensure that such powers are not exercised in a way that would violate human rights. She should also reflect on whether all these powers are needed or whether they can be subject to conditions to ensure that they are only used in a way that respects human rights, and in particular the right to life.

Given the particular risks to life posed by using force at sea, we recommend that Schedule 4A to the Immigration Act 1971 be amended to specify that force must not be used if it would endanger life at sea. Additionally, we would suggest an amendment, ideally to all parts of Schedule 4A to the Immigration Act 1971, to read “The powers set out in this Part of the Schedule must not include any activity that could endanger life at sea.”

The Government should clarify why it felt it necessary to introduce this amendment to new section 28LA to remove the requirement in existing law for the Home Secretary to grant authorisations for maritime enforcement only where to do so would be compatible with international law, under UNCLOS. Alternatively, similar drafting to that which appears in section 28M(4), 28N(4) and 29O(4) of the Immigration Act 1971 should be added to new section 28LA in Schedule 6.

In any actions authorising or carrying out maritime enforcement, we expect Ministers and officials to comply with the law, including the UK’s international legal obligations, such as its human rights obligations and obligations under international maritime law. We expect Parliament to be informed if there is any intentional or accidental deviation from compliance with international law, including international human rights law.

It is understandable that it should principally be the Government that is responsible, in a civil claim, for the actions of its officers, rather than the officers being personally liable. This is borne out through the usual operation of vicarious liability. Similarly, it would be the Government that would be responsible in any human rights claim for a breach of human rights caused by the actions of its officers. However, this clause could risk neither being liable for harm caused, even killing a person (where that was done as a consequence of immigration enforcement action). It would be better if this clause made it clear that this wasn’t an attempt by the Home Office to absolve itself of civil liability, but rather specifically for the officers not to be liable personally.

We therefore recommend amending that paragraph to read “The Home Office, rather than an individual officer, is liable in civil proceedings for anything done in the purported performance of functions under this Part of this Schedule.”

If a criminal offence has been committed whilst undertaking pushbacks or other maritime enforcement operations, it is difficult to understand why there should be a specific defence or immunity from prosecution for immigration officers or enforcement officers. For example, if a child is killed due to the actions of an immigration officer at sea, it is hard to comprehend why that immigration officer Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement 69 should not be subject to the normal thresholds to assess criminal responsibility (for example if there was gross negligence manslaughter or unlawful and dangerous act manslaughter).

We therefore recommend that an amendment is made to remove any risk of immunity from prosecution for criminal offences committed by immigration officers or enforcement officers whilst undertaking pushbacks or other maritime enforcement operations.

As previously recognised, the primary obligation in respect of those at sea must be safety of life. This is even more so when dealing with people on small, unseaworthy vessels, in a busy shipping lane, often with rough waters, as is the case for migrants in small boats in the Channel. A policy of pushbacks would risk failing to comply with the obligations to save those in distress at sea, and instead would risk a situation where state actors were actively placing individuals in situations that would have an increased risk to life. We cannot see how a policy of pushbacks can be implemented without risking lives, contrary to the UK’s obligations under the right to life and international maritime law, especially if applied to fragile unseaworthy vessels.

Paragraph 8 of Schedule 6 should be amended so that it reads: “”ship” includes every description of vessel (including a hovercraft) used in navigation, but does not include any vessel that is not seaworthy or where there could otherwise be a risk to the safety of life and well-being of those onboard”.

The power to seize and detain property seems capable of being exercised compatibly with Convention rights, however it is noteworthy that it applies to a significant number of offences, including some where deprivation of property may not be a reasonable or proportionate outcome in an individual case. It will therefore be important that this power is exercised proportionately in practice. We therefore encourage the Home Secretary to issue guidance setting out how she will use this power and how she will ensure that it is only used when it is proportionate to do so.

We are concerned that even the Government’s own Equality Impact Assessment suggests that increased enforcement powers may not deter individuals from crossing the Channel and may even encourage them to take “riskier routes”.

The Government should do everything it can to prevent more individuals losing their life while trying to cross the Channel or attempting to enter the UK by other means.

Given their positive duties to protect the right to life, the Government should not engage in pushback tactics that would endanger asylum-seekers crossing the Channel or implement policies that would contribute to asylum-seekers taking dangerous routes into the UK.

The Government should consider whether the stated aim of deterring people smugglers by making the Channel an “unviable” route while still fulfilling their obligations to protect life could be better served by alternative means. A range of alternative options 70 Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement have been provided in written evidence to this inquiry, such as creating more safe and legal routes for refugees or enabling asylum seekers to obtain visas to come to the UK from France to claim asylum. (Paragraph 113) Criminalisation of asylum seekers and those who help them

The introduction of an offence of illegal arrival under clause 39 would effectively criminalise the act of seeking asylum in the UK. This is inconsistent with the UK’s obligations under the Refugee Convention, including Article 31, which prohibits the penalisation of refugees for unauthorised entry.

To ensure that it does not violate the UK’s obligations in international law, clause 39 should be amended to remove the offence of arriving in the UK without valid entry clearance. The Bill should also provide for the amendment of section 31 of the Immigration and Asylum Act 1999 so that the defence it contains is available in respect of all offences relating to unauthorised entry, including offences under section 24 of the Immigration Act 1971.

The potential for changes to immigration offences under clause 39 to impact on integration and settlement, on a refugee’s protection against non-refoulement and on the protections provided to a victim of slavery or trafficking represent further reasons why amendment to the Bill is needed.

The proposed changes to the offences of facilitating a breach of immigration law, under section 25 of the 1971 Act, and facilitating the entry or arrival of an asylum seeker, under section 25A of the 1971 Act, pose an unacceptable risk of criminalising altruistic and life-saving actions. They are inconsistent with international obligations to protect and save lives at sea, and with the fundamental right to life under Article 2 ECHR. Concerns about irregular migration cannot justify legislation that puts lives at risk.

To ensure compliance with international human rights obligations, and in particular the right to life, clause 39(4) and clause 40(2) must be removed from the Bill. (Paragraph 160) Removals and notice periods

Overall, the Committee welcomes clause 45 as it provides a statutory guarantee of at least 5 working days’ notice before a person is removed, an increase on the 72hrs currently guaranteed in policy guidance and does not permit the use of ‘removal windows’. These changes provide greater protection for the right of access to justice and against unjustified removals to face human rights abuses taking place without legal challenge. It is important to recognise, however, that the Bill provides for a minimum period of notice, and that if more notice is required to ensure the recipient’s right to access justice is respected then more must be provided.

It is also important that the power to remove a person who has been issued a priority removal notice without providing a notice period is not used in cases where the right to access justice requires notice to be given. The power of the Secretary of State to remove a person without further notice being given where a removal has previously Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement 71 failed must not be used in cases where a removal has failed for legitimate reasons or where the claimant’s right to access justice requires him or her to have additional notice. This power must not be relied upon to detain individuals on immigration grounds when detention is not necessary.

The Bill should be amended to make plain that the right to access justice must be respected in any decision on providing notice to an individual liable to removal. It should also be emphasised in the policy guidance that accompanies the power to detain that detention should not be maintained for 21 days in advance of a removal date where that detention is not necessary and proportionate in the individual case. (Paragraph 176) Immigration Detention and Bail

We are disappointed that the Government have not used the Nationality and Borders Bill as an opportunity to introduce independence into the immigration detention decision-making process.

The Government must take action to ensure that people are not being detained unlawfully.

The changes proposed in the Bill increase the risk that immigration detention will be used, and prolonged, where it is not necessary or proportionate.

We recommend that clause 47 be removed from the Bill to improve safeguards against detention in breach of Article 5 ECHR. (Paragraph 190) 72 Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement Declaration of interests Declaration of interests Lord Brabazon of Tara • No relevant interests to declare Lord Dubs • Former Chief Executive of the Refugee Council Lord Henley • No relevant interests to declare Baroness Ludford • Vice President of Justice • Vice Chair of the All-Party Parliamentary Group on Migration Baroness Massey of Darwen • No relevant interests to declare Lord Singh of Wimbledon • No relevant interests to declare Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement 73

The Secretary of State should clarify whether there will be guidance on setting a “specified date” by which information under a slavery or trafficking information notice must be provided, whether it will allow for sufficient time for victims (who are known to take time to feel comfortable talking about slavery and trafficking experiences) to provide the required information, and whether extensions may be granted in certain cases.

It is not clear whether ‘slavery or trafficking information notices’ will be served on all asylum applicants or only some. There is the potential for the effects of slavery or trafficking information notices to be discriminatory if they are only served on certain categories of person. This will especially be so if those categories of people are negatively impacted by their difficulty in meeting the deadlines imposed by the Home Office. There is the potential, therefore, for Article 14 ECHR (principle of non-discrimination), as read with Article 4 ECHR (prohibition on slavery), to be engaged by the application of clauses 57 and 58 in practice. We are concerned about the potential for discrimination in the application of this clause unless clear criteria are set as to how it will be applied and to whom.

The Secretary of State should produce guidance on how and when to submit a statement of reasons and what are likely to be considered “good reasons”. The Secretary of State should clarify how vulnerable or traumatised people who provide information late due to their vulnerability or trauma will be treated under this provision.

We consider that clause 58 should be amended so that it does not inadvertently remove protection from victims of slavery or human trafficking, contrary to the UK’s obligations to combat slavery and human trafficking. This would also bring it closer in line with the established caselaw of the Courts in relation to how the words in this provision should be read. Clause 58 should be amended to replace “must take account, as damaging the person’s credibility, of the late provision of the relevant status information” with “may take account, as potentially damaging the person’s credibility, of the late provision of the relevant status information”.

We consider that clause 58 should be further amended to specify that it does not apply to child victims and victims of sexual exploitation, given the well-documented impact of trauma in delaying disclosure, especially on those two categories of victim. (Paragraph 25) Defining “victim of slavery” and “victim of human trafficking”

The definitions of “victim of slavery” and “victim of human trafficking” are central to the treatment of victims of slavery and human trafficking, and how the Bill will operate in protecting those victims. At a minimum, the definitions used in legislation should comply with those contained in the relevant international treaties, such as the definition of “human trafficking” in the UN Palermo Protocol. (Paragraph 33) Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery 43

At a minimum, the definitions used in legislation should comply with those contained in the relevant international treaties, such as the definition of “human trafficking” in the UN Palermo Protocol. The Government should consider amending the Bill to include definitions of “victim of slavery” and “victim of human trafficking”. (Paragraph 33) The process for determining whether a person is a victim of slavery or human trafficking

The Secretary of State should explain how she envisages clause 61 working. She should explain how she justifies including a discretion in clause 61, as to whether a potential victim will be protected from removal, where a conclusive grounds decision is pending. We consider that the test for providing further protection under clause 61 should be amended to ensure that victims of slavery and human trafficking are given the protection they need.

The Secretary of State should explain how the test of appropriateness in clause 63 (new section 50A(4)) will be applied and if it will ensure that assistance and support will be provided in all cases where this is necessary. (Paragraph 45) Victims that won’t receive protection: the public order and bad faith exceptions

The Secretary of State should clarify the drafting intention as between clause 62(2)(b) and clauses 64(6) and (7).

Excluding certain victims from protection increases the likelihood that their cases will not be adequately investigated or prosecuted and, therefore, that action will not be taken against organised gangs exploiting these victims of slavery or human trafficking. Such an approach therefore runs counter to the UK’s obligations under ECAT and Article 4 ECHR, as well as leaving gaps in enforcing action against traffickers. We are concerned that such an approach will leave a loophole for those responsible for exploiting people in slavery and human trafficking to evade investigation and prosecution, by targeting those with a criminal past.

More must be done to ensure that victims of slavery or human trafficking are not prosecuted due to conduct they were compelled to undertake as part of their exploitation. Prosecuting trafficking victims is wrong because it wrongly punishes them for doing something they may have been compelled to do as victims. Moreover, this is of concern in light of clause 62, since, if convicted, a victim may then also lose their protection and support (which itself can have ramifications for the investigation and prosecution of the perpetrators). It is not compatible with ECAT or Article 4 ECHR to remove protection from victims of slavery or human trafficking, other than for those posing a current threat, and for the most serious offending. Protection should not be removed from victims for activities caused by being a victim of slavery or human trafficking.

The Secretary of State should explain whether there will be any further clarification given as to what “bad faith” means for the purposes of section 62(1) NBB. (Paragraph 62) 44 Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery

The wide definition of “public order” contained with the Bill risks catching levels of behaviour that fall below what we consider to be the appropriate threshold to deprive a person of protection as a victim of slavery or human trafficking. For example, clause 62(3) catches historic offending, minor offending, offending where a person was compelled to do so by their captors in a slavery or human trafficking situation, cases where there has been no conviction, and cases relying on unsafe convictions from overseas. Moreover, it is important to recall that Article 13 ECAT only permits these exceptions where “grounds of public order prevent it”—therefore, even for those individuals who may fall within one of the limbs in clause 62(3), a person should not be excluded unless it is additionally shown that they, as an individual, present such an ongoing risk to public order as to enable the UK to avail itself of the exception in Article 13 ECAT.

We recommend that clause 62 be amended so that it complies with ECAT and is limited only to those posing a current and ongoing serious threat to public order. Such an amendment should additionally ensure that clause 62 does not to apply to minor offending or historic offending. Clause 62 should additionally be amended so that victims are not excluded from protection for any conduct they were compelled to undertake as a victim of slavery or human trafficking.

Clause 62 should be amended to ensure that it does not place the competent authority in a difficult position of having to make determinations in relation to terrorism or national security; such determinations should be made by the Secretary of State following clear decision-making processes.

The Secretary of State should clarify whether guidance will be issued to explain when and how the discretion in clause 62 will be exercised to ensure that it complies with the UK’s obligations to combat slavery and human trafficking and to protect the victims of such practices.

The Secretary of State should clarify what protections will be in place, such as instructions as to how to apply any discretion, to ensure that unsafe convictions overseas do not lead to a person’s victim status being removed under clause 62.

Clause 62, as currently drafted, does not adequately appreciate how trafficking and slavery can affect children, and does not comply with the rights of the child, under the UNCRC.

Clause 62 should be amended so that it does not apply to child victims of slavery or human trafficking, in order to comply with the UNCRC. Such an amendment would also go some way to addressing concerns about the application of clause 62 to children exploited by non-state armed groups. (Paragraph 79) Support for victims of slavery and human trafficking

We are concerned that clause 64(2)(a), as currently drafted, does not give full effect to the obligation in Article 14(1)(a) ECAT to give a victim of slavery or human trafficking leave to remain, as necessary, owing to their personal situation. (Paragraph 87) Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery 45

We recommend amending the language in clause 64(2)(a) so that it is clear that it covers the obligations in Article 14 ECAT.

In order to comply with the UK’s obligations under ECAT and the UNCRC toward child victims of slavery and human trafficking in the UK, clause 64 should be amended to include a requirement for residence permits for child victims of slavery or human trafficking to be granted in accordance with the best interests of the child, and renewed where appropriate.

The Secretary of State should clarify how this discretion will be exercised and how she will ensure that the Rules and the exercise of this discretion will respect the UK’s obligations under ECAT.

The Secretary of State should confirm whether “necessary assistance and support” will include all of the types of assistance listed in Article 12 ECAT and whether this will be made clear in the arrangements and Regulations made under section 49 and 50 MSA. (Paragraph 95) Legal aid

We welcome the changes to legal assistance being introduced by clauses 65 and 66. However, we are concerned about the impact of “legal aid deserts” and note that these provisions do not help victims of slavery or human trafficking who may need advice but are not already in receipt of legal aid. Advice on entering into the NRM process for victims of slavery or human trafficking should be free for all potential victims (including those in wholly domestic situations, such as those being used by criminal gangs in the UK).

The Bill should be amended to provide victims of slavery or human trafficking with an equivalent amount of civil legal services support as for those receiving a priority removal notice. (Paragraph 101) Disapplication of certain rights and obligations under the EU Trafficking Directive

As the Government has set out, from the current state of UK law in relation to the human trafficking directive, “it is not clear what from the Directive, if anything, applies” and the Government recognises that the current state of UK law in this respect “brings little legislative certainty, so it is difficult for victims to interpret the legislation and their entitlements”.

We are concerned that clause 67 NBB, as read with section 4 EUWA, lacks sufficient clarity and accessibility to be compatible with the rule of law and moreover does not allow the Committee to know the extent to which human rights, for example the rights of victims of slavery or human trafficking, might be negatively affected by this clause. We are further concerned that the Government itself is unable to explain what, of the Trafficking Directive, applies in UK law. We encourage the Government to ensure better transparency and clarity in legislating by ensuring the impact of provisions are clear and by providing Memoranda explaining the impacts of provisions where necessary. (Paragraph 109) 46 Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery

It is not entirely clear to us why clause 67 is present in the Bill, given that section 5(1) of the EU (Withdrawal) Act would seem to already achieve the effect of the later NBB taking precedence over earlier retained EU law.

The Government should clarify its intentions with regard to the Trafficking People for Exploitation Regulations 2013, which implement the Trafficking Directive. (Paragraph 111) Other Matters Arising

The Government should provide a Memorandum setting out how it has given effect to each provision of ECAT and the UN Palermo Protocol in order to improve transparency and to assist the Committee in holding the Government to account for complying with international human rights standards in combatting slavery and human trafficking.

We are concerned that the creation of a separate body to the Single Competent Authority, may indicate a different level of treatment, or a different approach, for certain victims of slavery and human trafficking. This will be even more concerning if this approach leads to lower standards being applied to one group of victims of slavery or human trafficking. The Government should clarify why it considers it necessary and justified to create a separate Immigration Enforcement Competent Authority to determine the cases for certain victims or potential victims of slavery and human trafficking.

The Government should clarify why it considers it necessary and justified to create a separate Immigration Enforcement Competent Authority to determine the cases for certain victims or potential victims of slavery and human trafficking. Absent compelling reasons, we cannot see how a separate body can be justified, and the Government should reconsider its approach. (Paragraph 121) Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery 47

Home Office data shows that approximately 65% of asylum applicants awaiting initial decisions had been waiting more than six months and that the average time to make an initial decision is now more than a year. This is clearly concerning. Delays can have a significant adverse impact on the wellbeing and mental health of asylum applicants (which is protected by Articles 3 and 8 ECHR), and whilst awaiting decisions they are generally not permitted to work, begin the family reunification process and cannot access the entitlements guaranteed in the Refugee Convention. To reduce the adverse impacts on individuals awaiting decisions the Home Office should give serious consideration to the UNHCR’s recommendations to introduce a triaging and prioritization system, simplify case processing procedures and frontload the asylum system and make clear how it plans to streamline and shorten the asylum decision-making process.

We support the Chief Inspector of Borders and Immigration’s recommendation that a new published service standard must be introduced as a matter of urgency. That service standard should set realistic targets which take into account the human rights of applicants and the severe impacts that lengthy waits for decisions can have.

As recommended by Wendy Williams in her Windrush Lessons Learned Review, Home Office decision-making should be based on the principles of “fairness, rigour and humanity”.

The Home Office must establish why the proportion of initial decisions found to be flawed has been gradually increasing and what they plan to do to improve the quality of asylum decision-making. This plan must include providing adequate support and training to staff who are handling difficult cases on a day-by-day basis and may be suffering from ‘compassion fatigue’. The Home Office should promote a human rights culture where the rights and dignity of asylum applicants is at the heart of decision- making, as opposed to a culture in which staff are treated as and perceive of themselves as ‘gatekeepers’ of the asylum system. (Paragraph 46) Differential treatment

There is no requirement under the Refugee Convention for asylum seekers to claim asylum in the first safe country they reach. The Bill should not establish in domestic law an interpretation of Article 31 of the Refugee Convention that explicitly or implicitly says the opposite.

Clause 36(4) would require an interpretation of Article 31 that removes its protections from a refugee who commits an offence while leaving the UK for another destination. This is inconsistent with an interpretation of the Refugee Convention that accepts asylum seekers are not required to claim asylum in the first safe country they reach. It is also hard to see how the UK benefits from prosecuting individuals who want to leave the UK to claim asylum elsewhere. (Paragraph 74) Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office 71 Decision-Making, Age Assessments, and Deprivation of Citizenship Orders

Clause 36 requires amendment to ensure that it does not contradict the protection Article 31 provides to asylum seekers who have passed through other countries on their way to the UK or are passing through the UK on their way to their destination.

We are unable to see how the duty under the UNCRC to act in the best interests of the child and to avoid discrimination can be met if Group 2 refugee children are exposed to reduced status, restrictions on family reunion and restrictions on access to state support.

Clause 11 would allow for individuals who have been recognised as refugees to be given inferior treatment, based on the way in which they came to the UK. We consider this to be inconsistent with the UK’s obligations under the Refugee Convention, which does not require asylum seekers to wait to be selected for resettlement programmes and does not require them to claim asylum in the first safe country they reach. The proposed differential treatment also appears likely to be inconsistent with the right to private and family life under Article 8 ECHR and the prohibition on discrimination under Article 14 ECHR. At a time when there is already an unprecedented backlog of asylum claims, these changes would make the asylum decision-making process longer, more complicated and open to further appeals.

Clause 11 should be removed from the Bill.

It is imperative that the Government learns from the poor treatment of asylum seekers housed in former military barracks. If accommodation centres are to be used to house those awaiting asylum decisions and appeals or awaiting removal from the UK the conditions must ensure that residents are free to come and go, treated with respect, provided with adequate access to healthcare and legal advice and not prevented from mixing with the rest of society. (Paragraph 91) Inadmissibility and offshore processing

While an inadmissibility regime is not in itself inconsistent with the Refugee Convention and ECHR, there are numerous ways in which the clauses in the Bill do not provide the safeguards necessary to ensure compliance. The threshold for establishing a connection with a safe third state is too low. The standards against which the safety of a third state is judged are insufficient.

Clause 15 should be amended to ensure that claims cannot be declared inadmissible on the basis of the Home Office’s view that it would have been reasonable to expect the claimant to have claimed elsewhere. The clause also requires amendment to prevent asylum seekers being removed to countries other than the one with which they are considered to have a connection. The definition of safe third country must ensure that the state in question provides effective protection against human rights abuses and access to an effective asylum system that fully complies with the Refugee Convention.

Suspending an asylum claim for 6 months when there is no real prospect of it being considered by another state amounts to an unjustified delay. It does not appear to 72 Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders be consistent with complying with the Refugee Convention ‘in good faith’. It also places the mental and physical health of vulnerable asylum seekers at risk, potentially resulting in violations of Article 8 or even Article 3 ECHR.

The Bill should be amended to prohibit any asylum claimant being provided with a notice of intent or assessed as inadmissible unless a return arrangement has already been put in place with the relevant third country.

The UK risks doing damage to the shared responsibility that underpins the Refugee Convention if it proceeds with plans for the offshore processing of asylum claims. The Bill should be amended to remove the power to remove an asylum seeker from the UK while their claim is pending, unless compliance with human rights standards, including the Refugee Convention, in any future arrangements can be unequivocally guaranteed. (Paragraph 122) Interpretation of the Refugee Convention

The Bill includes requirements as to how the Refugee Convention must be interpreted. This risks the UK being out of step with established interpretations of Refugee Convention obligations, reducing the protection against human rights abuses that the Refugee Convention provides.

The introduction of a split and raised standard of proof for establishing a well- founded fear of persecution runs contrary to well-established interpretation of the Refugee Convention and creates unnecessary additional complexity in asylum decision-making. In light of the difficulties that genuine asylum seekers already face proving their claims, it would increase the risk of individuals being wrongly refused asylum and removed to face violations of fundamental human rights. It is important that a legitimate desire to ensure that refugee status is not given to individuals who do not meet the definition of refugee does not support a ‘culture of disbelief’ that puts genuine refugees at risk.

Clause 31 should be amended to confirm that the standard of proof for establishing a well-founded fear of persecution remains a composite standard of ‘reasonable likelihood’.

Despite the presumption that a person who has committed such a crime amounts to a ‘danger to the community’ remaining rebuttable, the proposal to lower the threshold for what constitutes a ‘particularly serious crime’ to any offence receiving a 12-month sentence would not be consistent with the language of Article 33(2) or with the humanitarian purpose of the Refugee Convention. The combination of the new threshold with provisions expressly denying an individual the opportunity to prove that he has not committed a ‘particularly serious’ offence would ‘expand the scope’ of Article 33(2) and ‘correspondingly weaken the principle of non- refoulement itself’. The Bill requires amendment to remove the lowering of this threshold.

Despite the presumption that a person who has committed such a crime amounts to a ‘danger to the community’ remaining rebuttable, the proposal to lower the threshold for what constitutes a ‘particularly serious crime’ to any offence receiving Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office 73 Decision-Making, Age Assessments, and Deprivation of Citizenship Orders a 12-month sentence would not be consistent with the language of Article 33(2) or with the humanitarian purpose of the Refugee Convention. The combination of the new threshold with provisions expressly denying an individual the opportunity to prove that he has not committed a ‘particularly serious’ offence would ‘expand the scope’ of Article 33(2) and ‘correspondingly weaken the principle of non-refoulement itself’. The Bill requires amendment to remove the lowering of this threshold. (Paragraph 142) Procedural changes

It is crucial that decision-makers recognise the many legitimate reasons why asylum seekers may struggle to prove evidence in support of their claims within tight deadlines.

We welcome the proposal to provide additional legal aid to persons in receipt of priority removal notices. The Government must ensure, however, that there are sufficient qualified immigration practitioners with legal aid contracts available to provide this additional support.

It is important that Home Office decision-makers and tribunals are free to carry out global assessments of credibility.

The combined effect of the provisions on credibility and weight, which emphasise procedural failure as damaging to the substantive asylum claim, is to increase the risk that genuine refugees will be denied asylum because they were wrongly disbelieved, or their evidence wrongly given minimal weight. This would expose people to persecution and human rights abuses.

The Bill should be amended to remove the provisions that emphasise damage to credibility and weight of evidence as a result of delay. If the Government is intent on penalising late submission of evidence, it should only introduce penalties that do not impact on consideration of the substantive asylum claim. At the very least, the Bill must be amended to clarify that a failure to meet a deadline ‘may’ be damaging to the applicant’s credibility or to the weight given to evidence, rather than that it must.

If asylum seekers are to be detained, it should be for the shortest period possible. We also agree with the Court of Appeal that speed and efficiency must not trump justice and fairness.

The proposed accelerated detained appeals process would significantly contract the timeframe for the asylum application and appeals procedure. This has implications for the ability of those genuinely fleeing persecution to be able to present their claims effectively, potentially denying them the sanctuary to which they are entitled in international law. In the absence of clear safeguards that would restrict the use of the accelerated detained appeals process to appeals that are clearly unfounded and without merit, we consider that the process poses too great a risk of unfair decisions resulting in exposure to human rights violations.

Clause 26 requires substantial amendment to limit the cases that are brought within the accelerated detained appeals process, to ensure that cases are removed from the 74 Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders process where the interests of justice and fairness requires it and to ensure that the process itself is not so accelerated as to risk unfair decision making and consequential human rights violations. If this is not possible, clause 26 should be removed from the Bill. (Paragraph 172) Age assessments

The Government has indicated that it intends to retain the benefit of the doubt for certain age-disputed persons, but that it intends to lower the threshold for giving the benefit of the doubt (which is currently extended to those who are assessed as being under 25 years old). Whilst the judgment of the Supreme Court in the case of BF Eritrea gives the Government leeway to lower this threshold, it must be borne in mind that there are severe consequences of mistakenly treating a child as an adult, which would amount to a denial of that child’s rights to education, support, and accommodation. Any lowering of the threshold increases the risk of wrongly identifying a child as an adult and unlawfully detaining a child in immigration detention. Whilst it is a burden on resources to give young adults the benefit of the doubt and treat them as children, a lower threshold may result in more children being placed into unsafe accommodation with inadequate safeguarding and no access to services such as education, to which they are legally entitled. Depending on the circumstances, treating a child as an adult may also result in trauma which may reach the threshold of violating Article 3 ECHR. It is imperative that the threshold test minimises as far as possible the risk that children will be misidentified as adults and denied their rights.

Whilst centralisation of age assessments may not necessarily be adverse for unaccompanied asylum-seeking children, it is difficult to scrutinise the Government’s plans for the new NAAB given the lack of detail contained within the Bill. It will be crucial for this new body to adhere to the guidance set out in case law and to ensure that the best interests of the child are core to its functioning.

The power for the Secretary of State to make regulations setting out specified scientific methods for assessing age is concerning. A number of medical organisations have voiced opposition to this policy on the basis that such methods are inaccurate and involve a wide margin of error. If this is the case, then the use of such methods may not improve the accuracy of decision-making when compared to a holistic assessment undertaken by a social worker. A holistic assessment would avoid the use of any physical (and potentially invasive) procedures which may not be appropriate, and may even cause trauma depending on the nature of the procedure and the experience of the individual concerned. We are not convinced there is any justification for the use of scientific methods.

It is not clear to us what will constitute a reasonable ground for refusing consent. Clear guidelines must be published setting out the test that will be applied. Further, we are concerned that the threat of adverse inferences may apply pressure to the individual concerned to consent to an age assessment, particularly a young child, who may fear the consequences of refusing to consent to a procedure. There are many reasons why a child may not wish to be subject to a scientific procedure, but they may not be able to communicate the reasons for this. Even if they can articulate Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office 75 Decision-Making, Age Assessments, and Deprivation of Citizenship Orders their reasons, it is not clear whether the Home Office will consider their concerns to be “reasonable”. We suggest that refusal to consent to scientific procedures should not be taken into account when assessing the credibility of an age-disputed person who may be a child.

The Government must ensure holistic assessments are undertaken and will not be able to rely upon scientific methods as a replacement for holistic assessments. The use of scientific methods as set out in any regulations in the future will need to be scrutinised to ensure that they do not breach the right to be free from inhuman and degrading treatment (Article 3 ECHR) and the right to privacy (Article 8 ECHR). If it is the case that scientific methods will not offer any greater accuracy than the current holistic methodology, the use of such methods may not constitute necessary and proportionate incursions of the right to privacy. Further, we suggest that where holistic assessments already exist as an alternative, it would not be in the best interests of the child to subject them to scientific procedures. (Paragraph 221) Deprivation of citizenship orders

Whilst it is inevitable that serving notice of deprivation of citizenship orders will present challenges in some cases, it is disproportionate to remove the obligation to give notice entirely in the five specified circumstances. Bearing in mind the public law principle of fairness, it is questionable that an uncommunicated administrative decision of such a grave nature, with such severe consequences for the individual affected, should bind an individual who is being stripped of their rights. We suggest that Clause 9 should be deleted from the Bill. If Clause 9 is to be retained in the Bill, at a minimum, the Secretary of State should be required to take reasonable steps to give notice of deprivation of citizenship orders.

As the Supreme Court has noted, to comply with the procedural requirements of the ECHR, an appellant must be able to challenge the legality of the measure taken against him, and the right of appeal must be meaningful and effective. In circumstances where an individual does not know they are subject to a deprivation of citizenship order, the right of appeal is meaningless, particularly where time limits will be applied. Applying time limits to an appeal against an uncommunicated deprivation of citizenship order risks violating the right to a fair trial as protected by Article 6. If clause 9 is to be retained in the Bill, we suggest that it would be fairer and clearer to include provision that the time limits only start running from the date of knowledge of the deprivation of citizenship order.

Article 6(1) of the ECHR requires that, in the determination of a person’s civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The enactment of retrospective legislation which affects the results of pending proceedings may infringe Article 6(1), unless there are compelling grounds of general interest. It is, prima facie, contrary to the rule of law for the state to interfere in current legal proceedings in order to influence the outcome of those proceedings in a manner favourable to itself. The Government is using Clause 9 to retrospectively validate unlawful deprivation of citizenship orders, following the High Court’s decision that the relevant regulation concerning the giving of notice is ultra vires. It is possible 76 Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders that there are pending legal proceedings challenging deprivation of citizenship orders on the ground that notice was given by making a record on the Home Office file. Clause 9 would effectively remove a ground of appeal from these claimants. If clause 9 affects the results of pending legal proceedings, this may infringe the fair trial rights of the appellants. If clause 9 is to be retained, we suggest that it should not have retrospective effect, to avoid the risk of infringing Article 6 in the vent of pending legal proceedings.

It is inevitable that cases concerning deprivation of citizenship orders may present practical difficulties with regard to serving notice. Individuals who leave the jurisdiction, travel to conflict zones, reside in refugee camps, and have no known means of communication, will be virtually impossible to locate and serve with notice. It is reasonable that the requirements for the Secretary of State to give notice to such individuals should take these challenges into account. However, there are three key problems with clause 9: it allows for far too much discretion by the Secretary of State to avoid giving notice of deprivation of citizenship orders; it renders the right of appeal meaningless, and it retrospectively validates unlawful deprivation of citizenship orders which may interfere with pending legal proceedings. Given the severe infringement of rights resulting from deprivation of citizenship orders, it is imperative that robust safeguards are in place when this extreme executive power is used. As set out above, we suggest that Clause 9 is removed from the Bill.

If clause 9 is retained in the Bill we suggest it must be amended to: a) place obligations on the Secretary of State to take reasonable steps to give notice of deprivation of citizenship orders; b) remove the broad exemptions of “national security”, “foreign relations” and “public interest” which allow the Secretary of State to avoid giving notice; c) ensure the right of appeal is meaningful by providing that time limits do not run until the individual has been notified of the deprivation decision; and d) remove the retrospective validation of unlawful deprivation of citizenship orders. (Paragraph 248) Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office 77 Decision-Making, Age Assessments, and Deprivation of Citizenship Orders Amendments Amendment 1: Clause 36: ensuring proper interpretation of protection provided by Article 31 of the Refugee Convention Page 37, line 18, leave out from “Kingdom” to “that country” and insert— “for a substantial period and were given or could reasonably have expected to have been given protection under the Refugee Convention in that other country” Explanation: this amendment would give effect to the Joint Committee on Human Right’s recommendation that clause 36 be amended to ensure that it does not contradict the protection Article 31 provides to asylum seekers who have passed through other countries on their way to the UK. Amendment 2: Clause 36(4): confirming Article 31 of the Refugee Convention applies to asylum seekers passing through UK Page 37, line 37, leave out subsection (4) Explanation: this amendment would give effect to the Joint Committee on Human Right’s recommendation that clause 36 be amended to ensure that it does not contradict the protection Article 31 provides to asylum seekers who are passing through the UK on their way to their destination. Amendment 3: Clause 36(5): confirming that domestic law reflection of Article 31 is consistent Page 37, line 41, leave out subsection (5) Explanation: this amendment would ensure that the criminal defence in domestic law that is designed to reflect Article 31 of the Refugee Convention would remain consistent with amendments 1 and 2 above. Amendment 4: Clause 11: removing differentiation policy Page 13, line 31, leave out Clause 11 Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that the power to treat recognised refugees differently depending on whether they came directly from a country where their life or freedom was threatened; presented themselves without delay to the authorities; and, where relevant, could show good cause for illegal entry or presence, should be removed from the Bill. Amendment 5: Clause 15: redefining safe third State Page 18, leave out lines 26 to 38 and insert— “(a) there is not a real risk that the claimant will experience in that State: 78 Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders (i) persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion; or (ii) violations of their fundamental human rights; (b) there is not a real risk that the claimant be sent from that State to another State: (i) otherwise than in accordance with the Refugee Convention, or (ii) in contravention of their rights under the Human Rights Convention; or (iii) where there is a real risk of their fundamental human rights being violated. (c) that State provides, in law and practice, and the claimant is entitled to avail himself of: (i) appropriate reception arrangements for asylum seekers; (ii) access to fair and efficient State asylum procedures; (iii) the legal right to remain during the State asylum procedure; (iv) where an asylum seeker is found to be in need of international protection, a grant of refugee status or other protective status that provides as a minimum all the rights and obligations set out at Articles 2–34 of the Refugee Convention.” Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that the definition of ‘safe third State’ must ensure that the state in question provides effective protection against human rights abuses and access to an effective asylum system that fully complies with the Refugee Convention. Amendment 6: Clause 15: removing ability to send inadmissible claimant to state to which they have no connection Page 18, leave out lines 42 to 45 Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that asylum seekers should not be removed to a safe third State other than the one with which they are considered to have a connection. Amendment 7: Clause 15: clarifying when the Secretary of State must consider a prima facie inadmissible claim Page 19, leave out lines 1 and 2 and insert— “An asylum claim shall not be declared inadmissible, and an asylum claim that has been declared inadmissible shall nevertheless be considered under the immigration rules – (a) if no formal, legally binding and public return arrangements are in place between the United Kingdom and the State to which the claimant has a connection; and/or (b) if it is unlikely to be possible to remove the claimant to a safe third State within a reasonable period of the declaration of inadmissibility;” Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office 79 Decision-Making, Age Assessments, and Deprivation of Citizenship Orders Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that claims should not be assessed as inadmissible unless a return arrangement has already been put in place with the relevant safe third State. Amendment 8: Clause 16: limiting bases of connection to safe third State Page 19, leave out lines 34 to 42 Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that asylum claims should not be declared inadmissible on the basis of the Home Office’s view that it would have been reasonable to expect the claimant to have claimed elsewhere. Amendment 9: Clause 28: excising power to remove asylum seekers whose claims are pending Page 33, line 18, leave out Clause 28 Explanation this amendment would give effect to the recommendation of the Joint Committee on Human Rights to take away the power to remove asylum seekers from the UK while their asylum claims are still pending. Amendment 10: Clause 31: retaining recognised test for well-founded fear of persecution (1) Page 34, line 45, leave out subsection (2) and (3) Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that the standard of proof for an asylum seeker to establish a well-founded fear of persecution under the Refugee Convention should remain a composite standard of ‘reasonable likelihood’. Amendment 11: Clause 31: retaining recognised test for well-founded fear of persecution (2) Page 35, line 20, leave out paragraph (a) and insert— “(a) they would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and” Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that the standard of proof for an asylum seeker to establish a well-founded fear of persecution under the Refugee Convention should remain a composite standard of ‘reasonable likelihood’. Amendment 12: Clause 37: removing lowered threshold for “particularly serious crime” Page 38, line 16, leave out subsections (3) to (13) 80 Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that the threshold in respect of what constitutes a “particularly serious crime” for the purposes of Article 33(2) of the Refugee Convention should not be lowered. Amendment 13: Clause 18: removing damage to credibility arising from delay Page 22, line 26, leave out subsection (4) Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights to remove the direction for decision makers to treat the provision of evidence on or after the date specified in an evidence notice as damaging to credibility. Amendment 14: Clause 21: removing damage to credibility arising from delay Page 25, line 29, leave out subsection (4) Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights to remove the direction for decision makers to treat the provision of evidence on or after the date specified in a priority removal notice as damaging to credibility. Amendment 15: Clause 25: removing damage to weight of evidence arising from delay Page 30, line 14, leave out Clause 25 Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights to remove the direction for decision makers to treat the provision of evidence on or after the date specified in an evidence notice or priority removal notice as damaging to the weight to be given to that evidence. Amendment 16: Clause 26: ensuring accelerated detained appeals process only used where fair and just Page 31, line 37, leave out subsection (2) and insert— “(2) The Secretary of State may only certify a decision under this section if the Secretary of State is satisfied that: (a) any relevant appeal brought in relation to the decision would likely be disposed of expeditiously; and (b) any relevant appeal brought in relation to the decision could be resolved within the time limits set out in subsection (3) without giving rise to unfairness or injustice.” Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights to limit the cases that are brought within the accelerated detained appeals process, to prevent unfairness or injustice arising. Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office 81 Decision-Making, Age Assessments, and Deprivation of Citizenship Orders Amendment 17: Clause 26: ensuring accelerated detained appeals process only used where fair and just Page 32, line 10, leave out subsection (5) and insert— “Tribunal Procedure Rules must secure that the First-tier Tribunal or (as the case may be) the Upper Tribunal must, if it is concerned that fairness or justice in an individual case cannot be provided within the accelerated detained appeal process, order that a relevant appeal is to cease to be an accelerated detained appeal.” Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that clause 26 should be amended to ensure that cases are removed from the accelerated detained appeals process where the interests of justice and fairness require it. Amendment 18: Clause 51: Use of scientific methods in age assessments Page 57, line 31, leave out subsections (6) and (7) Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that refusal to consent to scientific procedures to assess age should not be taken into account when assessing the credibility of an age-disputed person who may be a child. Amendment 19: Clause 9: Notice of decision to deprive a person of citizenship Page 11, line 26, leave out Clause 9 Explanation: this amendment would give effect to the recommendation of the Joint Committee on Human Rights that clause 9 should be removed. 82 Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders Declaration of interests Lord Brabazon of Tara • No relevant interests to declare Lord Dubs • Former Chief Executive of the Refugee Council Lord Henley • No relevant interests to declare Baroness Ludford • No relevant interests to declare Baroness Massey of Darwen • No relevant interests to declare Lord Singh of Wimbledon • No relevant interests to declare Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office 83 Decision-Making, Age Assessments, and Deprivation of Citizenship Orders