Source · Select Committees · Human Rights (Joint Committee)
Recommendation 115
115
Acknowledged
Section 59 IMA (partially in force)149 amends section 80A of the Nationality, Immigration and Asylum...
Conclusion
Section 59 IMA (partially in force)149 amends section 80A of the Nationality, Immigration and Asylum Act 2002, which provides that asylum claims and human rights claims from nationals of listed states must be declared inadmissible. Section 59 IMA principally does two things. First, it extends the list from EU nationals to nationals of Albania, Iceland, Liechtenstein, Norway and Switzerland.150 Second, it amends section 80A such that the inadmissibility provisions apply to human rights claims (that is, a claim by a person that to remove them from the UK would be unlawful under section 6 of the Human Rights Act 1998 which provides that a public authority must not act contrary to the ECHR) as well as asylum claims. Therefore, if enacted, all asylum and human rights claims made by nationals of the listed countries will be automatically inadmissible such that the merits of the claims will not be considered. Notably, the Secretary of State must (rather than may) declare these asylum and human rights claims inadmissible, unless there are exceptional circumstances. 148 Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) (IMB0024), para.16 149 The Illegal Migration Act 2023 (Commencement No. 1) Regulations 2023 bring section 59 into force only “for the purpose of making regulations”. 150 The Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2004 add Georgia and India to the list, but this will not take effect until section 59 IMA is fully commenced. 42
Government Response Summary
The government clarifies that Section 59 of the IMA 2023 is not yet fully commenced but reiterates that existing provisions (Section 80A NIAA) allow for consideration of exceptional circumstances and that country safety is kept under continuous review.
Government Response
Acknowledged
HM Government
Acknowledged
As noted in the report, section 59 of the IMA 2023 has not yet been fully commenced. If commenced, it would broaden the application of the existing inadmissibility provisions at section 80A of the Nationality, Immigration and Asylum Act 2002 (NIAA), from the present focus—asylum claims made by EU nationals—to asylum and human rights claims made by nationals of the broader list of countries at section 80AA(1) of the NIAA. Section 80A NIAA already acknowledges that there may be exceptional instances where it is right to admit and substantively consider asylum claims made by EU nationals, notwithstanding the general safety of EU countries of origin. The section 80A(4) “exceptional circumstances” provision under which this may happen gives examples of when admitting claims may be appropriate. These examples are not exhaustive, and the open drafting allows decision-makers to make fact-sensitive assessments as to whether admission is appropriate. Guidance and policy support is available to assist decisionmakers in this work, and claims are considered on the particular facts of the case. This provision would continue to apply to the expanded scope of inadmissibility, in the event that section 59 is fully commenced. On the issue of the safety of the countries on the list, the Home Office regularly monitors and reviews the situation in countries of origin, working closely with the Foreign, Commonwealth and Development Office. The corresponding country policy and information notes are published on the gov.uk website and are also kept under constant review and updated periodically. Should the Home Office assess that any changes in a country’s situation fundamentally affect the justification for its designation on the section 80AA list, the Home Office would seek to remove them from the list using the appropriate Parliamentary procedures. The Secretary of State has a regulation making power to add countries to the section 80AA list. However, the regulations are subject to the draft affirmative procedure, which means Parliament have opportunity to scrutinise any such change. Furthermore, the Secretary of State must be satisfied that the country meets the threshold of safety set out at section 80AA(3) NIAA1.1 As noted above, the situation and safety of countries is kept under continuous review. We would note that, were section 59 to be commenced, any introduction of a time-bound or time-specified review of country safety may be counter-productive. The existing continuous nature of monitoring allows flexibility to ensure the prioritisation of the most pressing country- specific issues, reacting to live situations and events. This may be hampered by specified time-bound review processes.