Recommendation 39

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