Public Law Project, jointly with JUSTICE, has briefed the House of Commons for the Committee Stage of 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”.

As drafted, the Bill risks creating a system where people with a legitimate basis to stay in the UK – and genuine grounds to fear removal – can be removed without effective access to justice. The Bill also includes provisions which undermine the Government’s aim of increasing the efficiency of the system.

Briefing 1: Legal Aid

The first briefing focuses on the legal aid provision for a new “Priority Removal Notice” in the Bill (clause 22), highlighting the role legal aid plays in ensuring the constitutional right of access to justice and a fair and efficient immigration system.

We recommend that:

  • 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)
  • 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)

Briefing 2: Threats to access to justice

The second briefing addresses four further provisions of the Bill, including:

  • Clause 21, which severely circumscribes the right of appeal against any decision made on a ‘late’ claim. The exclusion of a right of appeal to the Court of Appeal means that such appeals will be insulated within the Tribunal system. Closing off avenues for appeals risks closing off access to justice.  An incorrect decision in this field can cost an individual their safety, security, and livelihood.
  • Clause 24, which seeks to recreate, through primary legislation, a Detained Fast Track process. A Detained Fast Track for appeals previously existed in the First-tier Tribunal Procedure Rules. Those rules were found to be unlawful in 2015 because they created an unfair system in which asylum and human rights appeals were disposed of too quickly to be fair. This clause is unnecessary as the Tribunal has adequate case management powers to deal with appeals expeditiously in appropriate cases and already prioritises detained cases.
  • 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, concerns ‘no notice removals’ and makes clear in statute the duty on the Home Office to give people a minimum of 5 working days’ notice of when they are going to be removed from the UK. 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. These “no notice” removal provisions are unjustified and if enacted they could give rise to serious injustice.

Read our briefings to the House of Commons on: legal aid; suggested amendments to legal aid services; threats to access to justice.