Nationality, Immigration and Asylum Bill

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Mr. Neil Gerrard (Walthamstow): The Minister explained that the reason for the different approach to refusals of entry clearance was that there was no question of a penalty or a removal. I understand the logic of that. I hope that we can improve the current situation whereby people are refused entry clearance. I am thinking about people who have made marriage applications and been refused entry clearance and then there is a change of circumstances. There are very long queues at some of the posts that I have to deal with, and it seems unfair that people end up right at the back of the queue having to make a completely fresh application.

We should examine some of those entry clearance mechanisms and see how we can make the system easier. If there is not an appeal to deal with the updating, we should consider whether a reasonable review of people's circumstances can be carried out. I know that that will happen sometimes when MPs write, but I also recall cases in which an adjudicator has considered evidence that has been submitted. He has told the Home Office that he must refuse the application on the grounds that are covered in the clause. He has considered the decision that was made by the entry clearance officer on the evidence available to him, but has recommended that the Home Office exercise discretion. I hope that we will not cut off that route for decisions to be reviewed. If the clause prevents an adjudicator from making such recommendations, we should consider alternative mechanisms that would enable people whose circumstances have changed to get reviews quickly rather than having to return to the back of a queue for months before their case can be re-examined.

Simon Hughes: Has the hon. Gentleman also had experience of people putting in a new application when they have been turned down because that flexibility does not exist? The system does not lose work. It is better to finish one job more quickly than to force people to return to ''Go'' on the monopoly board so that they have to go through the whole process again.

Mr. Gerrard: That is perfectly sensible. We are generating work by making people go through the process again when the refusal has been based on a point that could be satisfied by updating information about a change of circumstances.

Ms Winterton: The hon. Member for Woking argued that we should not fetter adjudicators. We need to be clear that we do not want an adjudicator to revisit a previous appeal that has already been determined. That would be nonsense, because an appellant may not have wanted to pursue the previous application. It would not be sensible or helpful for it to be revisited on every occasion.

We want people to have access to section 92 forms as early as possible in the process. Ideally, they should be given to people at induction centres and before the first immigration and nationality directorate hearing or interview. In the case of a refusal, people should be given an opportunity to explain in a statement why they wish their case to be considered. Importantly, the clause also ensures that the circumstances that apply

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are those that apply at the time of the hearing, so that there is proper consideration of the circumstances at that time. Removing clause 63(2)(b) would not be helpful, not least because the appellant may not want those grounds to be considered any more.

We are sympathetic to the points made by my hon. Friend the Member for Walthamstow (Mr. Gerrard). It is important that we continue to work with our colleagues in the Foreign Office to make sure that the processes are clear and that we do whatever we can to resolve the important issues that my hon. Friend raised. The issues can be reconsidered and fresh evidence presented. That should be done in the country of origin, because doing it any other way could lead to considerable delays and adjournments, which would not be in anyone's interest. Indeed, it would put the adjudicator and the Home Office presenting officer in a difficult position if it was open to the same systems.

Points were made about the one-stop process. If we want to make the one-stop process to work properly, it is important that all matters that are relevant to an application be raised so that they can be properly considered. If those matters are not raised until the hearing before the adjudicator, it will inevitably lead to adjournments and delays. It will not be possible for an adjudicator to decide the case on the basis of the circumstances applying at the time of the hearing on asylum or human rights matters. However, if those matters were raised for the first time, it is right that the existing appeal should be determined and any new matters referred to the Secretary of State for consideration. If after consideration the Secretary of State rejects the claim, it is possible for him to treat it as further representations, generate a further right of appeal by making a fresh immigration decision or certify the claim under clause 74, thereby preventing any further right of appeal.

It is important that we do not allow the system to be abused, particularly by allowing elements of a claim to be kept up someone's sleeve until the last minute, thereby preventing proper consideration. The procedures in the Bill will ensure that there is fairness when matters arise at a later stage, but we must ensure that that is balanced with the ability to prevent the system from being abused by bringing up such matters at the last minute. The adjudicator should be able to consider only issues that can form the basis of an appeal. A question was asked about the immigration decisions, and a list of them can be found in clause 60(2).

I hope that that explains the Government's position on the points made by Opposition Members, and that in the light of that the hon. Gentlemen will feel able to withdraw their amendments.

The Chairman: It is a Government amendment, so the hon. Gentlemen have nothing to withdraw.

Ms Winterton: Yes, sorry.

Amendment agreed to.

Amendments made: No. 345, in page 34, line 38, leave out 'and determine'.

No. 346, in page 34, line 38, at end insert

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    'which—

    (a) constitutes a ground of appeal of a kind listed in section 62(1) against the decision appealed against, or

    (b) could be the subject of an appeal by the appellant under section 60(1).'.

No. 347, in page 35, line 4, at end insert 'under section 10'.—[Ms Rosie Winterton.]

Mr. Malins: I beg to move amendment No. 403, in page 35, line 6, leave out paragraph (b).

The Chairman: With this, it will be convenient to take the following: Government amendment No. 348.

Amendment No. 415, in clause 80, page 40, line 23, leave out subsection (3).

Government amendment No. 364.

5 pm

Mr. Malins: When the Minister said that she hoped that the amendment would be withdrawn, I was hoping that you would ask whether the Committee agreed, Mr. Illsley. If you had, we would have shouted ''Aye'' loudly and the Government amendments would have fallen.

I turn now to a important and difficult matter. Amendment No. 403 would delete subsection (4)(b). We must realise that we are discussing immigration, not asylum, appeals. They are two different animals. This morning, we spent a lot of time properly challenging the Government about immigration appeals, and especially delays. A heated but good debate took place. All of us, including the Minister, agreed that there were problems of delay and administration in immigration appeals. We must be careful. The Minister constantly refers to abuse in asylum cases. There is some merit in referring occasionally to that, but the arguments do not apply with the same force in immigration appeals. They are separate matters.

For example, subsection (4) covers the refusal of entry clearance. Unless I am greatly mistaken, that involves a person perhaps in Islamabad applying at the high commission for entry clearance to visit. If members of the Committee know that high commission, they will realise that it is not an easy task for a person to undertake. There are many people. Despite the fact that it is doing its absolute best, the waiting conditions are not perfect. The people to whom I am referring are not making an application for asylum; they are not abusing the system; they are making a straightforward application. It results in an on-the-spot interview, and perhaps shortly afterwards, a refusal.

If there is an appeal, subsection (4)(b) states that

    ''the adjudicator may consider only evidence which was available to the person who took the decision to refuse.''

I will be corrected if I am wrong, but in the simplest of language, that means that the person who has made the decision at Islamabad on the basis of the information that he or she has, finds that, when the adjudicator here—not there—hears the appeal, he or she is stuck on the same evidence and nothing more. At present, statutory provisions do not limit the evidence

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in entry clearance cases when there are appeals. There is no limit to what has been submitted to the entry clearance officer. That is not surprising, because in many cases, people go to the entry clearance officer to apply for entry clearance without their tackle being shipshape.

At present, appellants can produce evidence that relates to relevant facts at the date of decision. Extra evidence can come to light later, particularly if it was difficult to obtain—for example, when witnesses are not in the United Kingdom. The right to take such action should not be restricted.

The same applies in connection with amendment No. 415 to clause 80(3)(b), which deals with the Immigration Appeal Tribunal, which can

    ''consider only evidence which was available to the person who took the decision to refuse.''

What do the Government mean by that? We know from our surgeries that if people make an application for entry clearance and they are refused, the sponsor in this country contacts us. I hope that I have not completely missed the point. It is entirely possible that things may be very different by the time such people come to our surgeries. For example, some of the hurdles that the applicant failed to jump in the interview in, say, Islamabad might have been overcome.

Let us consider a specific example: an application for entry clearance for a visa to attend a wedding is refused, and there is an appeal. After the refusal, all sorts of evidence might be obtained about the wedding—not least a personal letter from the Member of Parliament stating that he knows that there is a wedding because he is going to it. A host of other material might also become available, such as the wedding invitation, and other financial material that was previously unavailable—or perhaps it was available.

It is common ground that all such matters are at large when there is an appeal. That is certainly the case with regard to the criminal justice system: in criminal appeals, such matters are, effectively, at the discretion of the judiciary. If decisions—and especially tough ones—are to be made, I am keen that they should be made by someone in a judicial position, rather than, effectively, by the Secretary of State. We must recognise that immigration appeals are different from asylum appeals. In the past, delays were often caused by Government bodies, and in a huge number of cases there is not the abuse that the Minister would have us believe exists in asylum cases.

The clause states:

    ''in relation to an appeal under section 60(1) against refusal of entry clearance . . . the adjudicator may consider only evidence which was available to the person who took the decision to refuse.''

That means that he cannot consider evidence that was unavailable in Islamabad but has subsequently become available. That is a departure from the current law, and it is unfair and unnecessary.

 
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