Source · Select Committees · Human Rights (Joint Committee)
Recommendation 119
119
Accepted
Section 59 includes a Henry VIII clause that permits the Secretary of State to add...
Conclusion
Section 59 includes a Henry VIII clause that permits the Secretary of State to add to the list of safe countries by regulations. This power is in force and has already been used to add Georgia and India to the list.156 There are serious 151 Under Article 7(1) TEU 152 Article 2 TEU: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” 153 ZV (Lithuania) v Secretary of State for the Home Department [2021] EWCA Civ 1196, [34]-[35], requiring (in relation to UK’s former obligations under the Spanish Protocol) “compelling reasons to believe that there is a clear risk that they will be liable to persecution in the country of origin” and “plainly cogent evidence (typically of some systemic default)”. 154 JCHR, Legislative Scrutiny: Illegal Migration Bill 12th Report of 2022–2023, para 160 155 UNHCR legal observations on the Illegal Migration Bill, 02 May 2023, para 17 156 The Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024 43 concerns amongst stakeholders in relation to the addition of these states. Over 180 Indian nationals were granted asylum in the 2 years to September 2024, and 53 Georgian nationals.157
Government Response Summary
The government describes how existing inadmissibility provisions allow for exceptional instances where asylum claims can be substantively considered, despite general country safety designations. They maintain that the situation and safety of countries are kept under continuous review and reject the idea of a time-bound review as potentially counter-productive.
Government Response
Accepted
HM Government
Accepted
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.