My Lords, Amendment 34 is in my name, and I thank the noble Baroness, Lady Lister, for her support. I am also extremely grateful to the Minister for meeting me last Friday to discuss this amendment and for agreeing to follow up our discussions with the Home Office. I am hopeful that this is going to lead to a positive outcome.
Clause 25 authorises the deciding authorities to give minimal weight to late evidence submitted by asylum applicants unless there is a good reason for it. My amendment would require the authorities always to assume that there was a good reason for late evidence in certain circumstances: where the applicant is a child or where the reason for lateness could reasonably be attributed to their experience of torture, trafficking or modern slavery, or sex or gender-based violence, abuse or exploitation. I have based that on the evidence to which I referred at Second Reading: that it is widely acknowledged that the trauma associated with sexual violence or trafficking can lead to significant problems with memory and recall, as well as a reluctance to
share details which could bring shame, fear or humiliation. Critically, I rely also on existing Home Office guidance, which acknowledges all that and says that an application should not be disadvantaged in those circumstances.
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However, in Committee, the Minister explained why he could not accept the amendment, which was admittedly drawn much more widely at that stage. I accept that one of the flaws in that version of the amendment was that, as he pointed out, there are unintended consequences which are undesirable—for example, the lateness of the evidence could be completely unrelated to the categories of situations that I listed. In addition, he pointed out that listing some categories and not others could, in principle, tie the judiciary’s hands and result in unfairness—for example, treating an applicant who is two days short of an 18th birthday differently from somebody who was 18 two days previously. Other circumstances could equally have resulted in an asylum seeker’s trauma which were not listed—for example, faith-based persecution.
I have tried to adapt and amend the wording of my amendment to accommodate those reasonable objections, and I have done so by not listing the categories of person but by listing experiences and linking directly the attribution of late evidence to those experiences. I have also inserted the words “but not limited to” to try to encompass some of the other circumstances, which would otherwise have resulted in a list as long as the Bill itself.
Another way of coming at the problem of late evidence which the Minister and I discussed is by looking at the crucial role of Home Office guidance, which currently refers to some but not all of the criteria listed in my amendment. It refers to trafficking and sex and gender-based violence, but not to the other conditions or experiences which could equally lead to good reason for late evidence, such as torture, modern slavery, mental health issues or faith-based persecution. With that in mind, the Minister kindly undertook to consult Home Office colleagues over the weekend to see what scope there might be to expand, strengthen and update the Home Office guidance to cover a much broader range of those contingencies. The aim was to see whether that would, in practice, provide sufficient reassurance for asylum seekers suffering the kind of trauma which could account for late evidence, but which would avoid the need for an inevitably selective list being included in the Bill—which might at first sight look like the right thing to do, but which could arguably have the effect of disadvantaging some refugees not caught by the stated categories.
I hoped that my inclusion of the words “but not limited to” could overcome that concern, but I shall be interested to hear what the Minister can report from his discussions with the Home Office to see whether we can find an acceptable way forward through new strengthened and updated Home Office guidance rather than an amendment which, I agree, could risk unintended consequences. I beg to move.