Nationality and Borders Bill (HL Bill 82)

Nationality and Borders BillPage 30

2013/104) (qualifying for civil legal services: cases in which merits criteria do
not apply), at the end insert “, or

(e)in relation to any matter described in paragraph 31ZA of
Schedule 1 to the Act (immigration: recipients of priority
5removal notices).”

(4)In regulation 5(1) of the Civil Legal Aid (Financial Resources and Payment for
Services) Regulations 2013 (S.I. 2013/480) (exceptions from requirement to
make a determination in respect of an individual’s financial resources), omit
the “and” at the end of paragraph (ka) and, after paragraph (l), insert—

(m)10civil legal services described in paragraph 31ZA of Part 1 of
Schedule 1 to the Act (immigration: recipients of priority
removal notices).”

Late evidence

25 Late provision of evidence in asylum or human rights claim: weight

(1)15This 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)20the claim, or

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

(2)Unless there are good reasons why the evidence was provided late, the
deciding authority must, in considering it, have regard to the principle that
25minimal weight should be given to the evidence.

(3)For the purposes of subsection (1)(a), evidence is provided “late” by a claimant
if it is within subsection (4) or (5).

(4)Evidence is within this subsection if—

(a)it is provided pursuant to an evidence notice served on the claimant
30under section 17(1), and

(b)it is provided on or after the date specified in the notice.

(5)Evidence is within this subsection if—

(a)it is provided pursuant to a priority removal notice served on the
claimant under section 19 in support of the matters mentioned in
35subsection (3)(a)(i) of that section (reasons and grounds for
application), and

(b)it is provided on or after the PRN cut-off date.

(6)The reference in subsection (1)(b)(i) to determining a claim includes a reference
to determining—

(a)40whether to certify the claim under section 94(1) of the 2002 Act
(unfounded claims);

(b)whether to accept or reject further submissions made by the claimant
for the purposes of the immigration rules.

(7)In this section—

  • 45“the 2002 Act” means the Nationality, Immigration and Asylum Act 2002;

Nationality and Borders BillPage 31

  • “asylum claim” has the meaning given by section 113(1) of the 2002 Act;

  • “deciding authority” means—

    (a)

    an immigration officer,

    (b)

    the Secretary of State,

    (c)

    5the First-tier Tribunal,

    (d)

    the Upper Tribunal in the circumstances described in
    subsection (8), or

    (e)

    the Special Immigration Appeals Commission;

  • PRN cut-off date” has the same meaning as in section 19;

  • 10“relevant appeal” means an appeal under—

    (a)

    section 82 of the 2002 Act, or

    (b)

    section 2 of the Special Immigration Appeals Commission Act
    1997.

(8)The circumstances are when the Upper Tribunal is acting—

(a)15under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act
2007 (Upper Tribunal re-making First-tier Tribunal decision on finding
of error of law), or

(b)in relation to—

(i)an expedited appeal within the meaning of section 82A of the
20Nationality, Immigration and Asylum Act 2002, or

(ii)an expedited related appeal within the meaning of section 23
that involves an asylum claim or a human rights claim.

Appeals

26 Accelerated detained appeals

(1)25In this section “accelerated detained appeal” means a relevant appeal (see
subsection (6)) brought—

(a)by a person who—

(i)was detained under a relevant detention provision (see
subsection (7)) at the time at which they were given notice of the
30decision which is the subject of the appeal, and

(ii)remains in detention under a relevant detention provision, and

(b)against a decision that—

(i)is of a description prescribed by regulations made by the
Secretary of State, and

(ii)35when made, was certified by the Secretary of State under this
section.

(2)The Secretary of State may only certify a decision under this section if the
Secretary of State considers that any relevant appeal brought in relation to the
decision would likely be disposed of expeditiously.

(3)40Tribunal Procedure Rules must secure that the following time limits apply in
relation to an accelerated detained appeal—

(a)any notice of appeal must be given to the First-tier Tribunal not later
than 5 working days after the date on which the appellant was given
notice of the decision against which the appeal is brought;

(b)45the First-tier Tribunal must make a decision on the appeal, and give
notice of that decision to the parties, not later than 25 working days

Nationality and Borders BillPage 32

after the date on which the appellant gave notice of appeal to the
tribunal;

(c)any application (whether to the First-tier Tribunal or the Upper
Tribunal) for permission to appeal to the Upper Tribunal must be
5determined by the tribunal concerned not later than 20 working days
after the date on which the applicant was given notice of the First-tier
Tribunal’s decision.

(4)A relevant appeal ceases to be an accelerated detained appeal on the appellant
being released from detention under any relevant detention provision.

(5)10Tribunal Procedure Rules must secure that the First-tier Tribunal or (as the case
may be) the Upper Tribunal may, if it is satisfied that it is the only way to secure
that justice is done in a particular case, order that a relevant appeal is to cease
to be an accelerated detained appeal.

(6)For the purposes of this section, a “relevant appeal” is an appeal to the First-tier
15Tribunal under any of the following—

(a)section 82(1) of the Nationality, Immigration and Asylum Act 2002
(appeals in respect of protection and human rights claims);

(b)section 40A of the British Nationality Act 1981 (appeal against
deprivation of citizenship);

(c)20the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020
(S.I. 2020/61) (appeal rights in respect of EU citizens’ rights
immigration decisions etc);

(d)regulation 36 of the Immigration (European Economic Area)
Regulations 2016 (S.I. 2016/1052) (appeals against EEA decisions) as it
25continues to have effect following its revocation.

(7)For the purposes of this section, a “relevant detention provision” is any of the
following—

(a)paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971
(detention of persons liable to examination or removal);

(b)30paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending
deportation);

(c)section 62 of the Nationality, Immigration and Asylum Act 2002
(detention of persons liable to examination or removal);

(d)section 36(1) of the UK Borders Act 2007 (detention pending
35deportation).

(8)In this section “working day” means any day except—

(a)a Saturday or Sunday, Christmas Day, Good Friday or 26 to 31
December, and

(b)any day that is a bank holiday under section 1 of the Banking and
40Financial Dealings Act 1971 in the part of the United Kingdom where
the appellant concerned is detained.

(9)Regulations under this section are subject to negative resolution procedure.

27 Claims certified as clearly unfounded: removal of right of appeal

(1)The Nationality, Immigration and Asylum Act 2002 is amended in accordance
45with subsections (2) and (3).

(2)In section 92 (place from which an appeal may be brought or continued)—

Nationality and Borders BillPage 33

(a)in each of subsections (2)(a) and (3)(a), for “94(1) or (7) (claim clearly
unfounded or removal to a safe third country)” substitute “94(7)
(removal to a safe country)”;

(b)in each of subsections (6) and (8), for “94(1) or (7)” substitute “94(7)”.

(3)5In section 94 (appeal from within the United Kingdom: unfounded human
rights or protection claim)—

(a)after subsection (3) insert—

(3A)A person may not bring an appeal under section 82 against a
decision if the claim to which the decision relates has been
10certified under subsection (1).”;

(b)in subsection (4), for “Those States” substitute “The States”;

(c)for the heading substitute “Certification of human rights or protection
claims as unfounded or removal to safe country”.

(4)The amendments made by this section do not apply in relation to a protection
15claim or human rights claim that was certified by the Secretary of State under
section 94(1) before the coming into force of this section.

Removal to safe third country

28 Removal of asylum seeker to safe country

Schedule 3 makes amendments to—

(a)20section 77 of the Nationality, Immigration and Asylum Act 2002 (no
removal while claim for asylum pending), and

(b)Schedule 3 to the Asylum and Immigration (Treatment of Claimants,
etc) Act 2004 (removal of asylum seeker to safe country).

Interpretation of Refugee Convention

29 25Refugee Convention: general

(1)The following sections apply for the purposes of the determination by any
person, court or tribunal whether a person (referred to in those sections as an
“asylum seeker”) is a refugee within the meaning of Article 1(A)(2) of the
Refugee Convention—

(a)30section 30 (persecution);

(b)section 31 (well-founded fear);

(c)section 32 (reasons for persecution);

(d)section 33 (protection from persecution);

(e)section 34 (internal relocation).

(2)35Section 35 applies for the purposes of the determination by any person, court
or tribunal whether the provisions of the Refugee Convention do not apply to
a person as a result of Article 1(F) of that Convention (disapplication of
Convention to serious criminals etc).

(3)Section 36 applies for the purposes of the determination by any person, court
40or tribunal whether Article 31(1) of the Refugee Convention (immunity from
certain penalties) applies in relation to a person who is a refugee within the
meaning of Article 1(A)(2) of the Refugee Convention.

Nationality and Borders BillPage 34

(4)The Refugee or Person in Need of International Protection (Qualification)
Regulations 2006 (S.I. 2006/2525) are revoked.

(5)Subsections (1) and (2), and sections 30 to 35, apply only in relation to a
determination relating to a claim for asylum where the claim was made on or
5after the day on which this section comes into force.

(6)For the purposes of subsection (5), a claim for asylum includes a claim, in any
form or to any person, which falls to be determined as mentioned in subsection
(1).

30 Article 1(A)(2): persecution

(1)10For the purposes of Article 1(A)(2) of the Refugee Convention, persecution can
be committed by any of the following (referred to in this Part as “actors of
persecution”)—

(a)the State,

(b)any party or organisation controlling the State or a substantial part of
15the territory of the State, or

(c)any non-State actor, if it can be demonstrated that the actors mentioned
in paragraphs (a) and (b), including any international organisation, are
unable or unwilling to provide reasonable protection against
persecution.

(2)20For the purposes of that Article, the persecution must be—

(a)sufficiently serious by its nature or repetition as to constitute a severe
violation of a basic human right, in particular a right from which
derogation cannot be made under Article 15 of the Human Rights
Convention, or

(b)25an accumulation of various measures, including a violation of a human
right, which is sufficiently severe as to affect an individual in a similar
manner as specified in paragraph (a).

(3)The persecution may, for example, take the form of—

(a)an act of physical or mental violence, including an act of sexual
30violence;

(b)a legal, administrative, police or judicial measure which in itself is
discriminatory or which is implemented in a discriminatory manner;

(c)prosecution or punishment which is disproportionate or
discriminatory;

(d)35denial of judicial redress resulting in a disproportionate or
discriminatory punishment;

(e)prosecution or punishment for refusal to perform military service in a
conflict, where performing military service would include crimes or
acts as described in Article 1(F) of the Refugee Convention (on which,
40see section 35).

31 Article 1(A)(2): well-founded fear

(1)In deciding for the purposes of Article 1(A)(2) of the Refugee Convention
whether an asylum seeker’s fear of persecution is well-founded, the following
approach is to be taken.

(2)45The decision-maker must first determine, on the balance of probabilities—

Nationality and Borders BillPage 35

(a)whether the asylum seeker has a characteristic which could cause them
to fear persecution for reasons of race, religion, nationality,
membership of a particular social group or political opinion (or has
such a characteristic attributed to them by an actor of persecution), and

(b)5whether the asylum seeker does in fact fear such persecution in their
country of nationality (or in a case where they do not have a nationality,
the country of their former habitual residence) as a result of that
characteristic.

(See also section 8 of the Asylum and Immigration (Treatment of Claimants,
10etc) Act 2004 (asylum claims etc: behaviour damaging to claimant’s
credibility).)

(3)Subsection (4) applies if the decision-maker finds that—

(a)the asylum seeker has a characteristic mentioned in subsection (2)(a) (or
has such a characteristic attributed to them), and

(b)15the asylum seeker fears persecution as mentioned in subsection (2)(b).

(4)The decision-maker must determine whether there is a reasonable likelihood
that, if the asylum seeker were returned to their country of nationality (or in a
case where they do not have a nationality, the country of their former habitual
residence)—

(a)20they would be persecuted as a result of the characteristic mentioned in
subsection (2)(a), and

(b)they would not be protected as mentioned in section 33.

(5)The determination under subsection (4) must also include a consideration of
the matter mentioned in section 34 (internal relocation).

32 25Article 1(A)(2): reasons for persecution

(1)For the purposes of Article 1(A)(2) of the Refugee Convention—

(a)the concept of race may include consideration of matters such as a
person’s colour, descent or membership of a particular ethnic group;

(b)the concept of religion may include consideration of matters such as—

(i)30the holding of theistic, non-theistic or atheistic beliefs,

(ii)the participation in formal worship in private or public, either
alone or in community with others, or the abstention from such
worship,

(iii)other religious acts or expressions of view, or

(iv)35forms of personal or communal conduct based on or mandated
by any religious belief;

(c)the concept of nationality is not confined to citizenship (or lack of
citizenship) but may include consideration of matters such as
membership of a group determined by its cultural, ethnic or linguistic
40identity, common geographical or political origins or its relationship
with the population of another State;

(d)the concept of political opinion includes the holding of an opinion,
thought or belief on a matter related to a potential actor of persecution
and to its policies or methods, whether or not the person holding that
45opinion, thought or belief has acted upon it.

(2)A group forms a particular social group for the purposes of Article 1(A)(2) of
the Refugee Convention only if it meets both of the following conditions.

Nationality and Borders BillPage 36

(3)The first condition is that members of the group share—

(a)an innate characteristic,

(b)a common background that cannot be changed, or

(c)a characteristic or belief that is so fundamental to identity or conscience
5that a person should not be forced to renounce it.

(4)The second condition is that the group has a distinct identity in the relevant
country because it is perceived as being different by the surrounding society.

(5)A particular social group may include a group based on a common
characteristic of sexual orientation, but for these purposes sexual orientation
10does not include acts that are criminal in any part of the United Kingdom.

33 Article 1(A)(2): protection from persecution

(1)For the purposes of Article 1(A)(2) of the Refugee Convention, protection from
persecution can be provided by—

(a)the State, or

(b)15any party or organisation, including any international organisation,
controlling the State or a substantial part of the territory of the State.

(2)An asylum seeker is to be taken to be able to avail themselves of protection
from persecution if—

(a)the State, party or organisation mentioned in subsection (1) takes
20reasonable steps to prevent the persecution by operating an effective
legal system for the detection, prosecution and punishment of acts
constituting persecution, and

(b)the asylum seeker is able to access the protection.

34 Article 1(A)(2): internal relocation

(1)25An asylum seeker is not to be taken to be a refugee for the purposes of Article
1(A)(2) of the Refugee Convention if—

(a)they would not have a well-founded fear of being persecuted in a part
of their country of nationality (or in a case where they do not have a
nationality, the country of their former habitual residence), and

(b)30they can reasonably be expected to travel to and remain in that part of
the country.

(2)In considering whether an asylum seeker can reasonably be expected to travel
to and remain in a part of a country, a decision-maker—

(a)must have regard to—

(i)35the general circumstances prevailing in that part of the country,
and

(ii)the personal circumstances of the asylum seeker;

(b)must disregard any technical obstacles relating to travel to that part of
that country.

35 40Article 1(F): disapplication of Convention in case of serious crime etc

(1)A person has committed a crime for the purposes of Article 1(F)(a) or (b) of the
Refugee Convention if they have instigated or otherwise participated in the
commission of the crimes specified in those provisions.

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(2)In Article 1(F)(b), the reference to a serious non-political crime includes a
particularly cruel action, even if it is committed with an allegedly political
objective.

(3)In that Article, the reference to a crime being committed by a person outside
5the country of refuge prior to their admission to that country as a refugee
includes a crime committed by that person at any time up to and including the
day on which they are issued with a relevant biometric immigration document
by the Secretary of State.

(4)For the purposes of subsection (3), a relevant biometric immigration document
10is a document that—

(a)records biometric information (as defined in section 15(1A) of the UK
Borders Act 2007), and

(b)is evidence of leave to remain in the United Kingdom granted to a
person as a result of their refugee status.

36 15Article 31(1): immunity from penalties

(1)A refugee is not to be taken to have come to the United Kingdom directly from
a country where their life or freedom was threatened if, in coming from that
country, they stopped in another country outside the United Kingdom, unless
they can show that they could not reasonably be expected to have sought
20protection under the Refugee Convention in that country.

(2)A refugee is not to be taken to have presented themselves without delay to the
authorities unless—

(a)in the case of a person who became a refugee while they were outside
the United Kingdom, they made a claim for asylum as soon as
25reasonably practicable after their arrival in the United Kingdom;

(b)in the case of a person who became a refugee while they were in the
United Kingdom—

(i)if their presence in the United Kingdom was lawful at that time,
they made a claim for asylum before the time when their
30presence in the United Kingdom became unlawful;

(ii)if their presence in the United Kingdom was unlawful at that
time, they made a claim for asylum as soon as reasonably
practicable after they became aware of their need for protection
under the Refugee Convention.

(3)35For the purposes of subsection (2)(b), a person’s presence in the United
Kingdom is unlawful if they require leave to enter or remain and do not have it.

(4)A penalty is not to be taken as having been imposed on account of a refugee’s
illegal entry or presence in the United Kingdom where the penalty relates to
anything done by the refugee in the course of an attempt to leave the United
40Kingdom.

(5)In section 31 of the Immigration and Asylum Act 1999 (defences based on
Art.31(1) of the Refugee Convention)—

(a)in subsection (2), for “have expected to be given” substitute “be
expected to have sought”;

Nationality and Borders BillPage 38

(b)after subsection (4) insert—

(4A)But this section does not apply to an offence committed by a
refugee in the course of an attempt to leave the United
Kingdom.”

(6)5In this section—

  • “claim for asylum” means a claim that it would be contrary to the United
    Kingdom’s obligations under the Refugee Convention for the claimant
    to be removed from, or required to leave, the United Kingdom;

  • “country” includes any territory;

  • 10“refugee” has the same meaning as in the Refugee Convention.

37 Article 33(2): particularly serious crime

(1)Section 72 of the Nationality, Immigration and Asylum Act 2002 (serious
criminal) is amended as follows.

(2)In subsection (1), for “protection” substitute “prohibition of expulsion or
15return”.

(3)In subsection (2)—

(a)in the words before paragraph (a)—

(i)for “shall be presumed to have been” substitute “is”;

(ii)omit “and to constitute a danger to the community of the United
20Kingdom”;

(b)in paragraph (b), for “two years” substitute “12 months”.

(4)In subsection (3)—

(a)in the words before paragraph (a)—

(i)for “shall be presumed to have been” substitute “is”;

(ii)25omit “and to constitute a danger to the community of the United
Kingdom”;

(b)in paragraph (b), for “two years” substitute “12 months”;

(c)in paragraph (c), for “two years” substitute “12 months”.

(5)In subsection (4), in the words before paragraph (a)—

(a)30for “shall be presumed to have been” substitute “is”;

(b)omit “and to constitute a danger to the community of the United
Kingdom”.

(6)After subsection (5) insert—

(5A)A person convicted by a final judgment of a particularly serious crime
35(whether within or outside the United Kingdom) is to be presumed to
constitute a danger to the community of the United Kingdom.”

(7)In subsection (6), for “(2), (3) or (4)” substitute “(5A)”.

(8)In subsection (7), for “(2), (3) or (4)” substitute “(5A)”.

(9)In subsection (8), for “mentioned in subsection (6)” substitute “under
40subsection (5A)”.

(10)In subsection (9)(b), for “presumptions under subsection (2), (3) or (4) apply”
substitute “a presumption under subsection (5A) applies”.

Nationality and Borders BillPage 39

(11)In subsection (10)(b), for “presumptions under subsections (2), (3) or (4) apply”
substitute “a presumption under subsection (5A) applies”.

(12)In subsection (11)(b)—

(a)in the opening words, for “two years” substitute “12 months”;

(b)5in sub-paragraph (ia), for “two years”, in both places it occurs,
substitute “12 months”;

(c)in sub-paragraph (iii), for “two years” substitute “12 months”.

(13)The amendments made by this section apply only in relation to a person
convicted on or after the date on which this section comes into force.

10Interpretation

38 Interpretation of Part 2

In this Part—

  • “human rights claim” has the meaning given by section 113 of the
    Nationality, Immigration and Asylum Act 2002;

  • 15the “Human Rights Convention” means the Convention for the Protection
    of Human Rights and Fundamental Freedoms agreed by the Council of
    Europe at Rome on 4 November 1950 as it has effect for the time being
    in relation to the United Kingdom;

  • “immigration officer” means a person appointed by the Secretary of State
    20as an immigration officer under paragraph 1 of Schedule 2 to the
    Immigration Act 1971;

  • “immigration rules” means rules under section 3(2) of the Immigration
    Act 1971;

  • the “Refugee Convention” means the Convention relating to the Status of
    25Refugees done at Geneva on 28 July 1951 and its Protocol;

  • “protection claim” has the meaning given by section 82(2) of the
    Nationality, Immigration and Asylum Act 2002.

Part 3 Immigration Control

30Immigration offences and penalties

39 Illegal entry and similar offences

(1)The Immigration Act 1971 is amended in accordance with subsections (2) to (7).

(2)In section 24 (illegal entry and similar offences), before subsection (1) insert—

(A1)A person who knowingly enters the United Kingdom in breach of a
35deportation order commits an offence.

(B1)A person who—

(a)requires leave to enter the United Kingdom under this Act, and

(b)knowingly enters the United Kingdom without such leave,

commits an offence.

(C1)40A person who—