Contribution
I am grateful to my noble friends Lord Browne of Ladyton and Lord Cashman for the amendment today, and to the noble and right reverend Lord, Lord Sentamu, for his support. I was pleased to have the opportunity to meet my noble friend outside the House to hear his concerns at first hand. I again wish the noble Baroness, Lady Hamwee, all the best for a speedy recovery and return to this place.
Amendment 59 seeks to change the way in which Section 59—that is confusing, I know—of the Illegal Migration Act 2023 would, if fully commenced, amend the inadmissibility provisions of Sections 80A and 80AA(1) of the Nationality, Immigration and Asylum Act 2002. I am grateful to my noble friends for the consideration they have given to this matter and I acknowledge the importance of the issues raised.
As my noble friend has said, Section 59 of the Illegal Migration Act has not been fully commenced. The Government have been clear that we are retaining it to allow for flexibility—that goes to the point that the noble Lord, Lord German, made—in its future implementation in a way that best assists us to address the significant challenges brought by asylum and migration.
Section 59 itself will, if commenced, amend Section 80A of the Nationality, Immigration and Asylum Act 2002, with the effect that the existing inadmissibility provisions in respect of asylum claims made by EU nationals will extend to human rights claims made by nationals from a wider list of countries set out in Section 80AA(1) of that Act. The first part of the amendment in my noble friend’s name seeks to change the duty at Section 80A to a power, and to add an explicit provision allowing the power to be exercised only where it would not result in a person’s human rights being breached. I understand why my noble friends Lord Cashman and Lord Browne of Ladyton put forward this amendment, but, as I hope to explain, it is not necessary and could prevent us implementing Section 59 in a different, more robust way.
Those bringing this amendment are aware of the provision currently set out in Section 80A of the 2002 Act which displaces the duty to declare an EU asylum claim inadmissible in the event that exceptional circumstances are identified. Although Section 80A(5) sets out some examples of when an exceptional circumstance will arise—currently in respect only to certain EU claims—these examples are not exhaustive or indeed rigid. Exceptional circumstances can already be applied more broadly, on a case-by-case basis, to ensure fairness and lawfulness in all EU asylum claims, and well-established case law already sets this out very clearly.
If Section 59 is commenced in its current form, updated policy guidance will be published to set out clearly how the exceptional circumstances safeguard should be applied for all claim types, taking account of the different considerations due in asylum and human rights claims. This will allow us to robustly and promptly process unmeritorious asylum and human rights claims at the earliest juncture, but—and this is the important point that goes to my noble friend Lord Cashman’s point—whenever necessary, it will allow us to divert claims from inadmissibility action and instead consider them substantively, ensuring that individuals’ rights under the refugee convention and the European Convention on Human Rights are maintained. It is not our objective to not have those rights upheld.
This amendment seeks to impose a duty for the Secretary of State to remove a country from the list at Section 80AA(1) of the Nationality, Immigration and Asylum Act if that country no longer satisfies the rules in that section. I say to my noble friend that the intent of this amendment is clear and commendable. It is well understood—this goes to the point made by the noble and right reverend Lord, Lord Sentamu—that countries’ conditions may change, and that may mean that a country previously assessed as safe can no longer be regarded as such. It is for that reason—the noble Lord, Lord Cameron of Lochiel, was seeking further clarification on the power in Section 80AA(6)(b), under which regulations to remove countries from the list can be made—that if Section 59 of the Illegal Migration Act is commenced in its current form, and the list at Section 80AA(1) has effect, it is unquestionable that a country assessed to be unsafe would be removed from the list by the Secretary of State under regulation. In the short term, however, ahead of regulations being made in such cases, the exceptional circumstances safeguard would apply, displacing that inadmissibility duty and allowing the claim to be considered substantially.
Noble Lords have asked why we are keeping inadmissibility under Section 80A of the Nationality and Immigration Act as a duty, rather than a power. While the exceptional circumstance provision does admit a measure of discretion, allowing for individual risks or changes in circumstance to be taken into account, the overall duty provides for greater consistency and focus in processing such claims.
I hope that, following the meeting I have had with my noble friend on the issues that he has raised and the debate that we have had today, I have reassured him that although his points are valid, they are covered by the discretion in the legislation currently in place. I hope he will withdraw his amendment.