Nationality and Borders Bill

JUSTICE, jointly with Public Law Project, has briefed Parliament on the Nationality and Borders Bill.

Our briefings address specific changes which are needed within this Bill for effective access to justice and protection of the rule of law. We also highlight fundamental flaws in the overall approach of the Government to its purported aim of “increasing the fairness and efficiency of our system”.

Despite such stated intent, the Bill and the Government’s New Plan for Immigration consultation which preceded it (see our response from May 2021) have sought to redesign the system to make it harder for those seeking to abuse it, with no real regard to the resulting inaccessibility this will cause for the very people the system is there to protect and for whom the system should be designed.

Ahead of the House of Commons Committee Stage, two joint briefings were produced.

The first focuses on the legal aid provision for a new “Priority Removal Notice” in the Bill (clause 22), in light of the evidence of multiple systemic issues within the current legal aid structure for immigration cases. Our briefing highlights not only the fundamental place of legal advice in ensuring the constitutional right of access to justice, but also the efficiencies available to the system as a whole from quality, accessible and sustainable legal advice. We recommend that:

  1. a new clause be inserted to provide for civil legal aid to be available in respect of all immigration matters at all stages (subject to financial eligibility and merits criteria) (see Amendment 1), or alternatively for those who are liable to removal or deportation (see Amendment 2)
  1. the existing legal aid provision in the Bill (clause 22) be amended to ensure the new legal advice offer is available when a person is served with notice of removal directions under clause 43(1), and not only when they are served with a Priority Removal Notice under clause 18. (Amendment 3)

The second briefing addresses four further provisions of the Bill. We are of the strong opinion that these provisions as currently drafted do not strike the right balance between the Bill’s competing aims of making the system fairer, protecting those in need of asylum, protecting and accurately identify victims of slavery and trafficking, and facilitating removal. Instead, they risk creating a system where people with a legitimate basis to stay in the UK – and genuine grounds to fear removal – may be removed without effective access to justice.

  • Clause 21 provides for appeal rights for those served with a Priority Removal Notice to be circumscribed if a claim is made “late”. We have highlighted that not all late claims are late because they are not to be believed, for example difficulties in accessing legal advice; the emergence of new evidence; changes in the law; shame and fear of disclosure; and the impact of trauma on disclosure. Furthermore, such cases in any event are no less at risk of erroneous decision making, which makes scrutiny on appeal so important. As such we recommend this provision is removed.
  • Clause 24 seeks to recreate a process of accelerated appeals for detained individuals, a process which has already been found unlawful by the Court of Appeal in its previous guise as the “Detained Fast Track” process in 2015. We recommend this provision is removed.
  • Clause 25 further restricts appeals for claims certified as “clearly unfounded”. This appeal right is currently only available after removal in any event, and the Government acknowledge it is rarely used. Taking this appeal right away will not improve the efficiency of removals, but it will undermine access to judicial scrutiny. We recommend this provision is removed.
  • Clause 43 creates a statutory minimum for notice of removal, which is a good thing. However, it does not provide for dedicated legal aid funding for such notice (see the above legal aid briefing), and in addition it provides for two exceptions. These “no notice” removals remove the courts’ ability to supervise the Home Secretary’s use of her power to enforce removal, when removal directions fail for reasons outside the Home Office’s control, including ‘disruption by the person to be removed or others’; and when a planned removal does not proceed because of judicial review proceedings. We consider these “no notice” removal provisions to be entirely unjustified and if enacted they could give rise to serious injustice. As such, we recommend they are removed from Clause 43(8).

Ahead of Report Stage, a further addendum briefing was produced to address additional amendments to the above areas.

Ahead of the House of Lords Second Reading, we produced an updated briefing for peers.

During the House of Lords Report stage, and the ‘ping-pong’ stage when both houses consider amendments we continued to brief on Clause 9, regarding notice of deprivation of citizenship.

House of Commons Committee Stage briefings:
Legal Aid and the Nationality and Borders Bill
Threats to Access to Justice in the Nationality and Borders Bill
Draft amendments: Nationality and Borders Bill

House of Commons Report Stage briefing
Threats to Access to Justice in the Nationality and Borders Bill

House of Lords second reading briefing
Threats to Access to Justice in the Nationality and Borders Bill

House of Lords report stage briefing (February 2022)
House of Lords Report Stage briefing: Clause 9 of the Nationality and Borders Bill

House of Commons Consideration of Lords amendments briefing (March 2022)
Clause 9 of the Nationality and Borders Bill

House of Lords Consideration of Commons amendments (April 2022)
Joint Briefing for the House of Lords