The evil lurking in clause 23 of the Nationality and Borders Bill

Immigration and asylum law is notoriously complicated and constantly changing.

In a recent Gresham College lecture, Lord Justice Haddon-Cave referred to an estimate from 2013 that immigration legislation and rules ran to over a million words – more than the total number of words in the Harry Potter series. In a case from the same year Lord Justice Jackson described the Immigration Rules and their numerous appendices as “having achieved a degree of complexity which even the Byzantine emperors would have envied.”

Things have got worse since 2013.

In 2017 a senior Immigration Judge described immigration law as:

“A total nightmare. I don’t suppose the judges know any more about it than the appellants who appear before them.”

One of the very few people in the country who does know more than most appellants or judges is Colin Yeo. As he points out on his superb blog, statutory immigration law – not including the voluminous rules and codes of practice – is now divided between Acts from 1971, 1988, 1999, 2002, 2004, 2006, 2007, 2008, 2009, 2014 and 2016. Each Act amends and re-amends existing legislation, thus adding yet further layers of complexity. Since he wrote that post, Brexit legislation has produced yet more statutory accretions.

The latest horror about to arrive is the Nationality and Borders Bill.

It is characteristically packed with mind-boggling, head-spinning, aspirin-inducing complexities, mostly designed to keep people out of Britain, although Part 1 is – if I have understood it correctly – designed to remedy some of the injustices revealed by the Windrush scandal. Whether it actually does so is anybody’s guess: I certainly don’t have a sufficient supply of non-steroidal anti-inflammatory medication to decipher the effect of provisions such as the proposed new S.17G of the British Nationality Act 1981:

If the mother of a person could not actually have been married to the person’s natural father at the time of the person’s birth (for whatever reason), that fact does not prevent an assumption being made that the couple were married at the time of the birth.”

(The enigmatic hanging quotation mark, by the way, is part of the official text).

Anyway, Part 1’s warm and welcoming tone quickly dissipates once one reaches the rest of the Bill. Here the complexity is calculated to assist the Bill’s main objective, which is to make it as difficult as humanly possible to obtain asylum in Britain by, as Ian Dunt succinctly put it, “criminalising and punishing all the things which someone must do in order to claim it.”

It really is a horror of a Bill, preparing the way, for example, for asylum claimants to be deported to a third country for their claims to be heard: the model that has led to refugees to Australia being held for years in hellish conditions on the Pacific island of Nauru.

This blog is not the place to analyse the Bill in detail, and nor am I remotely equipped to do so.

I do, however, want to highlight one particularly dreadful provision: Clause 23.

It concerns the way immigration officials and tribunals should approach evidence which is provided late.

Obviously – I don’t think this is something that officials or judges need instruction on – evidence provided late may very well, all things being equal, be less persuasive than evidence provided promptly. However, the clause goes far beyond a reminder of that trite point.

Under the heading “Late provision of evidence in asylum or human rights claim: weight“ S.23 (1) reads:

This section applies where—

(a) evidence is provided late by a claimant in relation to an asylum claim or a human rights claim, and

(b) the evidence falls to be considered by a deciding authority for the purpose of determining—

(i) the claim, or

(ii) where a decision in respect of the claim is the subject of a relevant appeal, the appeal.

(A “deciding authority” is defined as an immigration officer, the Secretary of State or one of the various tribunals at which immigration cases and appeals can be heard).

Note that the clause is designed to create a rule of evidence in all asylum or human rights claims. It only applies to the evidence “provided late by the claimant.” It does not apply to evidence provided late by the Home Office. Funny, that.

23 (2) then provides:

“Unless there are good reasons why the evidence was provided late, the deciding authority must, in considering it, have regard to the principle that minimal weight should be given to the evidence.”

The wording might lead the casual reader to assume that this is just a nod to some long-established “principle” that minimal weight must be given to late evidence. But there is no such principle, beyond the one that Clause 23 itself purports to create. The slightly more honest Notes for Guidance produced by the Home Office makes this clear:

“This clause creates the principle that a decision-maker in an asylum or human rights claim or appeal must have regard to the principle that evidence raised by the claimant late is given minimal weight .…”

Under subsection (4) evidence is to be deemed late if it is served “on or after” a date chosen by the Home Office in a notice served by the Home Office.

Read literally Clause 23 forces decision makers to give “minimal weight” even to otherwise credible evidence.

Let us take for example an asylum seeker from Iran who claims that he will face persecution because he has converted from Islam to Christianity. Apostasy is punishable by death in Iran, so the stakes are quite high. They almost always are in asylum cases.

Now let us suppose that late in the day – or at any “on or after” the deadline that the Home Office chooses to impose – he produces powerful evidence that he will be persecuted, and possibly executed for apostasy, if he is returned to Iran.

If there are “good reasons why the evidence was provided late” the evidence will be assessed on its merits.

But people make mistakes and often there will just be bad reasons. Perhaps he didn’t realise what evidence he needed to produce, or was just slow in getting hold of it. Perhaps his legal advisers were incompetent. Perhaps they served the wrong email address. Perhaps he, or they, simply missed a time limit. Lawyers do things like this from time to time, I’m afraid. So do asylum seekers who do not have lawyers and probably don’t speak English very well. Some of them may even struggle with simple things like immigration law.

If there are not good reasons for the late production of the evidence what then? The deciding authority “must” (note, not “may”) “have regard to the principle that evidence raised by the claimant late is given minimal weight.”

Since there is no such principle in law beyond that created by Clause 23 it is hard to know what effect this will have in practice. What on earth does “minimal weight” mean? What does “have regard to” mean in this context? Do you “have regard to” a principle merely by acknowledging its existence and then ignoring it, or do you actually have to apply it? One suspects that immigration officials and the Secretary of State may interpret the provision rather more strictly than the courts.

The intent, though, is clear enough. It is to force officials and courts to disregard otherwise credible evidence where there has been a procedural error, and to give the Secretary of State legal protection from judicial review when she wishes to do the same thing. As this may lead to the torture and death of genuine refugees it is no overstatement to describe that intent as evil.