My right hon. and learned Friend is correct in saying that rule 39 indications are just that, and that there are circumstances in which Ministers have chosen not to apply them—a small number of circumstances, but a number. The clause does not mandate a Minister to ignore rule 39 indications; it says clearly, to ensure that there is no doubt whatsoever, that the Minister has the discretion to do so. It gives a non-exhaustive list of reasons that they should consider, and in doing so they would clearly, as I have said on a number of occasions, take their treaty obligations very seriously.
Let me move on. As I have said, the Bill provides for two kinds of suspensive claims and sets out a fair but rigorous timetable for the submission of any claims, their determination by the Home Office, and any appeals. It is important that those who receive a removal notice should be able to receive appropriate legal advice to help them to navigate this process; accordingly, new clause 20 makes provision for legal aid. I trust that this new clause at least will be welcomed by the hon. Member for Glasgow Central, given that it covers similar ground to her new clause 18. The provision of legal aid will reduce the opportunities for challenges and speed up removals.
On serious harm suspensive claims, new clause 17 augments the existing provisions in clause 38, which enables regulations to be made about the meaning of serious and irreversible harm for the purposes of the Bill. We consider it important, and indeed helpful to the courts, to provide them with guidance as to what does or does not amount to serious and irreversible harm, albeit that ultimately the judgment will be for the upper tribunal, to be taken on a case-by-case basis. New clause 17 also makes it clear that the serious and irreversible harm must be “imminent and foreseeable”, which aligns the test in the Bill much more closely with Strasbourg practice.
Amendments 114 to 119 relate to foreign national offenders. In the Nationality and Borders Act 2022, we legislated to disapply certain modern slavery protections to FNOs who have been sentenced to a term of imprisonment of 12 months or more, and to certain other categories of persons who present a risk to public order. The amendments introduce a statutory presumption that the public order disqualification applies to FNOs who have been given an immediate custodial sentence of any length.
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Finally, let me address new clauses 19 and 23 and new schedule 1, which seek to ensure that we have the necessary broader powers to tackle illegal migration. The new schedule confers new powers on immigration officers to search for, seize and retain mobile phones and other electronic devices from illegal migrants, when it appears to an immigration officer that they may contain information relevant to the discharge of their functions, including a criminal investigation. In addition, new clause 19 will put it beyond doubt that credibility should be damaged if a person who has made an asylum or human rights-based claim refuses to enable access to their mobile phone, or fails to produce or destroys identity documents without reasonable excuse. On this important change in the law, I pay tribute to my hon. Friend the Member for Newbury (Laura Farris), who is one of the Members of this House most experienced in immigration matters and who made the case strongly.