My Lords, I followed with great interest the noble Baroness, Lady Chakrabarti, in speaking eloquently to the clauses stand part in the last group. Like the noble Lord, Lord Dubs, I shall speak only to a particular amendment, that put forward by the noble Baroness, Lady Chakrabarti, to which I have lent my signature, as have others. Once again, I am grateful to the Law Society of Scotland for its background briefing, and I shall refer briefly to the report of the Constitution Committee in which its concerns were quoted.
I am grateful to the Law Society of Scotland for highlighting its concerns, which I share. This is a probing amendment to understand the background following on from my noble friend’s summing-up in response to the previous group. I find myself half way between my noble friend Lord Hodgson, who is not a lawyer, and the noble Lord, Lord Anderson, who is a lawyer of some repute. I am a member of the Faculty of Advocates but have not practised for a considerable period. However, I enjoyed the one case on which I was a junior before the European Court of Human Rights—the proceedings were very similar to those enjoyed in our erstwhile proceedings when the House of Lords enjoyed the right of final appeal.
The reason why I believe that Clause 31 does not fit well with the Bill goes back to the standard of proof test set out in the leading case for asylum cases, Ravichandran v Secretary of State for the Home Department, as a “well-founded fear of persecution”. In the Court of Appeal in 2000, it was confirmed that the standard of proof in civil proceedings—the balance of probabilities referred to in Clause 31(2)—was not suitable for immigration matters. Instead, what was important was making an assessment of all material considerations such that it
“must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur”.
Lord Justice Sedley described the balance of probabilities as
“part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or (by parity of reasoning) the quality of past ones.”
For the past 20 years, the approach taken in the Karanakaran case was consistently followed by the courts. In Scotland, the Outer House of the Court of Session reaffirmed that case as the correct standard of proof approach to be applied in the case in 2020 of MF (El Salvador) v Secretary of State for the Home Department. In that case, it was held that the First-tier Tribunal judge had erred in law by applying the wrong standard of proof in respect of an application for permission to appeal brought by an asylum seeker.
In Kaderli v Chief Public Prosecutor’s Office of Gebeze, Turkey, in 2021, the High Court reaffirmed, while referencing the Karanakaran case, that the question as to determining a well-founded fear of persecution is that of an evaluative nature about the likelihood of future events. In that case, it was held that the judge erred in holding that it was for the appellant to prove on the balance of probabilities that the corruption alleged had occurred. The true test involved the application of a lower standard: whether there was a real risk that
the appellant’s conviction was based on a trial tainted by corruption. This was consistent with the approach to the fact-finding in the immigration context.
In the view of the Law Society of Scotland,
“the change in clause 31 appears to go against the intention of the New Plan for Immigration, and flies in the face of 25 years judicial scrutiny.”
So my question to my noble friend the Minister, in summing up this evening, is: on what basis are the Government prepared to set aside the cases that I have set out this evening?
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I conclude by referring to the conclusions of the Constitution Committee in its report on the Bill of January 2022. It refers to the concerns of the Law Society of Scotland that I have set out today, as well as of the Law Society of England, which criticised the provision set out in Clause 31 in the following terms:
“the Bill changes the evidentiary threshold for asylum claims, in a way that will likely see genuine refugees barred from being granted asylum, as well as delays and an increase in litigation as the parameters of the new requirement are established.”
Paragraph 53 of the Constitution Committee’s report states:
“The House may consider that the new test in clause 31(2) is unclear and unduly complex. If the House takes the view that it is also a potential risk to justice it may be minded to replace it with a single test of, for example, reasonable likelihood.”
In setting out the arguments this evening, this gives my noble friend the Minister the chance to set out precisely why the Government are seeking to change tack, as set out in Clause 31, setting aside the case law that has curried favour in the law courts on both sides of the border—in England and Scotland—for a considerable number of years.