My Lords, I thank the noble Baroness, Lady Coussins, for her engagement with me, as the House will have heard, on the amendment, which she has redrafted since Committee, for the reasons she set out in her speech. I am also grateful to the amendment’s co-sponsor, the noble Baroness, Lady Lister of Burtersett.
We have a proud history of providing international protection to those most in need. This is a responsibility that we take seriously, but we need a system that is efficient as well as effective. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers have regard to the principle that minimal weight is given to evidence that is late following the receipt of either an evidence notice or a priority removal notice without good reason. The House will appreciate that Clause 25 is therefore essential to the architecture of this part of the Bill. However, at the same time, it is important not to tip the balance
too far. Decision-makers in the Home Office and the judiciary will maintain their discretion as to whether, having considered the principle and in the absence of good reasons for lateness, it is appropriate in all the circumstances of the particular case to apply minimal weight to late evidence, taking into account the claimant’s particular claim and any specific vulnerabilities.
I have been asked to define “good reasons”. This has not been defined in the Bill for, if I may say so, a good reason. We cannot legislate for every case type where someone may have good reasons for providing late information or evidence in relation to their protection claim. To do so would be impractical and would detract from the important principle that decision-makers are best placed to consider an individual’s particular vulnerabilities on a case-by-case basis. I say this because “good reasons” can include both objective factors, such as practical difficulties in obtaining evidence—for example, where the evidence was not previously available—and subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental and physical health. Decision-makers must be able to respond on a case-by-case basis.
I contrast that with Amendment 34, which would place an obligation on decision-makers not only in the Home Office but in the judiciary to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. I suggest that this would undermine the principle that we want decision-makers and the judiciary to apply their discretion on a case-by-case basis. By setting out a non-exhaustive list—I appreciate that it includes the words “not limited to”—of potential experiences or categories of claimant, it is true that this amendment does not exclude those not listed in the amendment from having good reasons. However, in any non-exhaustive list, there is a risk of focusing attention on the factors in the list, thus putting other applicants with different issues at a relative disadvantage.
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I suggest that the amendment is unnecessary because Clause 25 already provides sufficient safeguards to all individuals captured by the amendment and, indeed, further individuals not covered by it. I have indeed followed up on the undertaking I gave and can confirm to the noble Baroness and the House that guidance on good reasons will set out how decision-makers should make an assessment of reasons for lateness. I can specifically confirm that the guidance will cover all those categories of claimant and types of experience listed in this amendment as well as others. As to the timing, I can also confirm that the guidance will be published at least two months before it comes into effect.
I will make some other short points in response to the amendment. The noble Baroness, Lady Lister, referred to children in particular, so let me say a word about that. Where a child raises a protection or human rights claim, decision-makers will take into account the age and particular characteristics of the child before deciding whether to issue them with an evidence notice. Where evidence is thereafter provided late, it
will be, as I have said, for the Home Office and the judiciary to decide on a case-by-case basis whether there are good reasons.
In that context, guidance will be published, and I have set out the timing, setting out how decision-makers should take into account the age of the unaccompanied asylum-seeking child in the exercise of their discretion. The evidence provided by a child will be considered in the light, therefore, of their age and their degree of mental development and maturity, both currently and at all relevant earlier material times. Where there are good reasons for late evidence, there will be no penalty or adverse consequences for the claimant and decision-makers will not therefore need to have regard to the principle that minimal weight should be given to the late evidence.
I point out, as I think the noble Baroness accepted, that there is a problem with Amendment 34 because it can create a different statutory approach to individuals who may be equally vulnerable—for example, where a claimant is suffering from severe anxiety or depression or other mental health-related issues that are not included in the amendment. The noble Lord, Lord Paddick, referred to other categories and it is essentially the same point. I invite the House to accept that the approach in Clause 25 is the better one because that preserves the discretion for the decision-maker.
Finally, there is a risk as well of perverse outcomes. The amendment would possibly encourage claimants. There would be incentive to claim that you fall into one of the listed categories when you do not if there a hard cut-off, for example at the age of 18. That would incentivise somebody who is 18 and a half to claim that they were just about six months younger than they were. That would increase the burden on the authorities and act to the detriment of those under 18 and any others who need a high level of support.
I hope I have set out—