Nationality, Immigration and Asylum Bill

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Ms Winterton: I hope that I can reassure the hon. Gentleman by saying that we do not intend to use the system in that way.

Amendments Nos. 400, 430 and 431 would allow failed asylum seekers who have been given a short period of exceptional leave to remain—12 months or less—to appeal against the decision to refuse asylum. If it is decided at the end of the period that they are able to return to their own country, they would then have a further right of appeal against any decision to seek to remove them.

I should give some reassurance about how we believe that the process will work, as there has been some misunderstanding. If a person arrives from a country that is in turmoil and their claim for asylum is rejected, they may be given exceptional leave to remain because it is felt that it will be safe for them to return at the end of the 12-month period. If a decision is made at the end of that period to remove the person, he or she can appeal on the grounds of asylum. Asylum considerations will be taken into account at that point and the appeal revisited.

That is how we see the system working, and we do not believe that the system will be used year after year to grant continuous periods of exceptional leave to remain. The amendment would increase the number of likely appeals. The system that we have instituted is fair, and to introduce more appeals would, as I hope the hon. Gentleman agrees, run counter to earlier statements about the need for a system that is fair and robust but which streamlines rather than increases the number of appeals.

I hope that, with those reassurances, the hon. Gentleman will withdraw his amendment.

Mr. Malins: I have listened carefully to the Minister. Opposition Members save votes for critical moments—not in the sure and certain knowledge that we will win them, but because the fewer votes we press for, the more respected they will be. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 61 ordered to stand part of the Bill.

Clause 62

Grounds of appeal

Ms Winterton: I beg to move Government amendment No. 342, in page 34, line 20, leave out paragraph (d) and insert—

    '(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;'.

The Chairman: With this it will be convenient to take Government amendments Nos. 343 and 356.

Column Number: 387

Ms Winterton: The clause is a key part of our one-appeal philosophy and lists all the grounds for an appeal under clause 60. An appeal can be lodged on one or more grounds but all the grounds must come within those listed. The grounds are listed in different places in part 4 and schedule 4 of the 1999 Act but are brought together for simplicity. They refer specifically to human rights, asylum, European Economic Area obligations and race discrimination. The appeals documentation sent to the subject of the adverse decision will require him to lodge the grounds that apply to his case and, crucially, warn him that if he fails to lodge any relevant grounds at a later application, he may not attract a right of appeal if refused. Any grounds put forward that were not put forward prior to the decision, for example a human rights claim that the decision is contrary to the person's human rights, will be addressed in the one-appeal process.

Government amendments Nos. 342, 343 and 356 are technical amendments. Amendment No. 342 includes the ground that the appeal may be based on a claim that the decision breaches the applicant's rights under the Community treaties in respect of entry and residence in the UK. Those rights are described in the Immigration (European Economic Area) Regulations 2000. The amendment is necessary to preserve existing appeal rights. Government amendment No. 343 defines the criteria for those who can benefit from the Community treaties in respect of entry and residence in the UK, which is in line with earlier definitions.

Clause 71 defines which appeals are suspensive—that is to say, they may be exercised in the United Kingdom, as in the case of European Economic Area nationals and their family members who may not be removed while an appeal arising from an immigration decision made under clause 60 is pending. Amendment No. 356 permits EEA nationals and their family members to appeal in the United Kingdom against any immigration refusal made while the applicant is in the UK, which preserves existing appeal rights.

These are technical amendments, which will clarify the position and preserve existing appeal rights, and I hope that hon. Members will accept them.

Simon Hughes: Amendment No. 342 would change the wording in the clause as drafted, which refers to the Community treaties and UK obligations, to one that defines the person as having to be an EEA national or a member of that person's family. Are we talking about nationals of European Union countries or about the nationals of the old European Free Trade Association countries? Am I right in thinking that slightly different matters relate to the old EFTA country nationals, apart from those from Ireland, which has a different status? Are nationals from those countries covered in the proposal or elsewhere? I ask that question in ignorance; there may be an easy answer to it.

Ms Winterton: We are talking about the wider economic area. I did not hear the second part of the hon. Gentleman's question, so perhaps he will repeat it.

Column Number: 388

Simon Hughes: I understand and appreciate that the Minister was talking to a colleague. If we are talking about what used to be called, and perhaps still is, the European Free Trade Association area, which the amendment refers to as the EEA—the European Economic Area—can the Minister tell us whether there is a difference in the Bill between the way in which a Swiss national and a French national would be treated under the system? The latter person is from a country in the European Union and the former is from a country in the wider area but not in the EU. I am trying to discover whether there is a difference in the system and, if so, how it works.

Ms Winterton: Briefly, we are talking not about EFTA but about the European Economic Area; there is no difference in the way they are treated.

Amendment agreed to.

Mr. Malins: I beg to move amendment No. 401, in page 34, line 34, leave out paragraph (b).

Clause 62(1)(b) puts a heavy, and perhaps unfair, burden on the appellant to produce documents before the case is heard. For example, the production of the documents could be in the hands of an overseas authority, not of the person seeking to appeal. One of the objectors to subsection (2) has been the United Nations High Commissioner for Refugees. The UNHCR rightly points out that, although there is a legitimate wish to ensure that asylum seekers who appeal against the decision to send them to another country should be able to show that they will be received there, subsection (2) raises concerns about cases where asylum seekers have been unable to prove which country they came from. People fleeing persecution frequently arrive in the UK without documentation because they have not had the time to collect all their personal belongings.

Paragraphs 196 and 197 of the UNHCR handbook stress that point and state:

    ''In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents . . . The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.''

Perhaps the subsection should provide a waiver of that requirement or, at the very minimum, the Government could make a commitment that the requirement will not be construed too strictly against the applicant in question.

Simon Hughes: The amendment has the support of both Opposition parties. I hope that the Government will be positive towards it. I appreciate that subsection (2) concerns an appeal only on the ground of removal as set out in subsection (1)(h). It suggests that the appellant has a double duty. First, he must specify a country other than the one to which it is proposed to remove him. Secondly, he must submit documentary evidence to the Secretary of State before the appeal is commenced. I know from practical experience that that is nonsense. I assume that the phrase

    ''before the appeal is commenced''

could be interpreted as being before one submits the appeal application. If it were redrafted, it could say

Column Number: 389

''before the appeal hearing begins''. That would not be perfect, but it would be better. If that is what the subsection is meant to say it would be helpful to know that, but it does not say that as far as I can see.

The hon. Member for Woking made the case that there all sorts of practical reasons, not least when it is a long time before one appeals and the appeal is heard, why putting the burden on appellants to provide both the country specification as an alternative destination and, subject to the amendment, documentary evidence that shows that they would be allowed to enter, is not practically deliverable. Appellants may have requested the documentary evidence. They may be able to certify that they have requested it. They may have good reasons to believe that it is available but they cannot be certain until they get the documents in their hands.

As Ministers and civil servants know well, in the real world dealing with that international transfer of documents would not be possible within the time scale. Someone who came from Iraq and was willing to go back to another country in the middle east would be very unlikely to get the necessary documents through the embassies in time. That would be much more likely under the timetable for the appeal hearing. The knowledge of a date for an appeal hearing often produces much speedier responses.

Information changes. Later there will be debates about whether the time by which decisions should be made and appeals should be determined is the original date and the circumstances surrounding it or the date of the appeal. We will put in different ways the case that one must allow evidence to be added to up to the date the appeal is heard. Things change: countries that were at war are at peace, and vice versa. It is therefore important to give people flexibility. A Government may change, or elections may be due, and a country that may not be willing to take someone on the day ''the appeal is commenced'' could reasonably allow that by the date on which the appeal is heard. I can think of many countries where that would regularly apply.

I hope that the Government will realise that the amendments are eminently sensible for practical reasons. Subsection (2)(b) is far too restrictive and will preclude justice on many occasions.

 
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