Nationality, Immigration and Asylum Bill

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Simon Hughes: Government amendment No. 348 proposes that, at the end of subsection (4), there should be added,

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    '''or which concerns a matter which was relevant to the taking of the decision'.''

I thank the Government for that, as it is a great help. Their reflection has led to an improvement.

I was going to make an equally complimentary remark about Government amendment No. 364, but I cannot find it in my notes—perhaps the Minister will help me on that later on. That leaves us with amendments Nos. 403 and 415, which go in the same direction, so I hope that she will accept their general point.

As the hon. Member for Woking suggested, entry clearance officers—like Customs and immigration officers—are civil servants who act at ports of entry, where they make initial front-line decisions. They make them as carefully as possible. I have watched them and seen how they approach their work. However, they make one decision after another; that is all they do every day. There comes a time when that cannot be what they dream about doing; instead, they probably wish that they were somewhere else. They may dream that they are on the beach around the corner, but they certainly do not dream that they wish that they had yet another queue to deal with. Their work is hard—it is relentless, and they have to concentrate. In many of these places, there are relentless queues of people applying to come on family visits, for courses and for work. An important first point of principle is that an adjudicator is not a civil servant but is outwith the system. It is important that someone can stand back and examine how the system has dealt with a case.

As the hon. Member for Walthamstow (Mr. Gerrard) said, it must be in everyone's interests to keep one application going that deals with everything, rather than to keep recycling an application. If new evidence comes to light between the decision and the adjudicator's hearing, it must be brought into play, as it will change the nature of the beast. I will give an example. I believe that I represent more council house occupants than any other English Member of Parliament. Some two thirds of my electorate live in council property—it used to be 80 per cent. Immigration officers in the front line are often not satisfied that someone has accommodation or funds sufficient to be able to look after themselves.

The truth is that although a family in a two-bedroom flat on the Rockingham estate at the Elephant and Castle may not be living in the lap of luxury, if they need to, they will move someone into the living room and put the two kids into the bedroom. The accommodation may not be grandiose, but it is sufficient, and there is no extra cost. In any event, the local authority quite properly would not consider an application for larger accommodation until the people are here. It will not offer someone a bigger flat, even if it has one, on the basis of a prospective arrival. The Ministers will know that from their own constituencies.

Often, only that sort of further assessment can resolve those issues. The accommodation may be small and appear to be insufficient, but on review we can see that it is reasonable. The same is true of funding. It may not appear at first blush from the documents

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presented in Islamabad or elsewhere that the funds are available to look after someone. For example, it can take a while to obtain bank statements. People queue to put their case, and may be turned down because there is no opportunity to go away and get other documents. Having waited for a day, or even two days, someone is not going to give up their place in the queue, because someone six places ahead of them says that it may be helpful to produce another statement. People often persist in their application in the hope that their documents are sufficient. They may then be told that they are not, but the evidence may exist and it is just a matter of getting hold of it, whether it is evidence of an Abbey National account or other money transactions. I hope that the argument put by the hon. Member for Woking and me is persuasive. In cases of refusal of entry clearance and refusal of certificate of entitlement, we must be allowed to put the same case with all the evidence.

Although the Government amendment is helpful and a welcome improvement, it does not meet the objective. Even if the adjudicator can consider matters relevant to taking the decision, that does not go as far as we would want.

I cannot understand why the processes for appeal to the adjudicator and beyond are different if the decision is taken by an immigration officer at Gatwick or someone behind a desk at the high commission in Nigeria, Sierra Leone, Ghana, Australia or anywhere else. The amendments are designed to secure a common system, irrespective of whether the decision is taken here or overseas.

5.15 pm

Ms Winterton: May I first apologise for the earlier confusion, which was wholly my fault? Thank you for your assistance, Mr. Illsley. The hon. Member for Southwark, North and Bermondsey (Simon Hughes) acknowledged that Government amendment No. 348 goes some way towards addressing his concerns. I shall return to it in a moment.

Several views have been expressed about entry clearance decisions and appeals. The Government restored the right of appeal for family visits and we deserve some credit for that. Furthermore, some Opposition Members removed those appeal rights. The Opposition amendments would increase the number of appeals, but we are trying to streamline the appeal system to make it simpler for everyone and serve the best interests of people who are genuinely seeking and are deserving of refugee status. We need a system that will allow us to deliver decisions as quickly as possible.

Simon Hughes: I think that the Minister means immigration, not refugee, status.

Ms Winterton: Yes, I do.

To return to Government amendment No. 348, appeals made in the United Kingdom are subject to the one-stop process where, in response to a requirement made under clause 92, the applicant is required to disclose any reasons for staying in the United Kingdom that had not been raised before. That makes

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it possible for the Home Office to consider anything new that arises, so that the adjudicator can review our decision rather than take a new one.

We cannot expect an applicant for entry clearance to know, perhaps months in advance, all the reasons for remaining in the UK once he arrives. It would be unreasonable in those circumstances to issue a notice under clause 92, but if we do not issue such a notice, we cannot ask the adjudicator to consider any new grounds that may arise between the decision and the appeal hearing. That would mean that the adjudicator could be expected to take a completely new decision, which is an administrative rather than a judicial function.

We accept, however, that clause 63 is too restrictive. Under section 77 of the 1999 Act, the adjudicator currently has jurisdiction to consider matters that relate to relevant facts as they stand on the date of decision. If a person claims at interview that they are in a relationship with someone and marries that person a week after the date of decision, the adjudicator will be able to take the marriage into account as evidence of the relationship on the day of the decision. We believe that that situation should continue, which is why we tabled amendment No. 348.

Mr. Malins: In that case, why did the Government draft something entirely different?

Ms Winterton: As I said, having examined the clause, we believed that it was too restrictive and took this opportunity to make an adjustment. I would hope that the Opposition would welcome that, not churlishly but with open arms.

Amendment No. 403 would not help, because it would take us backwards from the current position. It would leave the jurisdiction of the adjudicator unclear in entry clearance cases and take us back to the pre-1999 Act position, when case law governed the matter. We believe that it is better to have a clear statutory provision so that there is no doubt about the test.

Government amendment No. 364 concerns clause 80(3) and appeals against refusal of entry clearance or certificate of entitlement applications made abroad. Subsection (3)(b) concerns overseas cases, which are not one-stop cases and in which subsequent applications can be made without penalty. There has been much discussion about how such cases are treated, but in such situations people already have a right of recourse through a review with the entry clearance officer. It is much better to approach the decision maker with new evidence, because any new evidence put before an adjudicator and Home Office presenting officer would create a difficult position. As I said earlier, either the hearing would have to be adjourned, or evidence would be considered without full scrutiny. However, if the evidence is put to the entry clearance officer, there is not that kind of pressure.

We must examine closely how we can improve the system and give clearer advice to people who make applications abroad. That is important, so that people

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can put forward as much evidence as possible at the initial stage. Nevertheless, it is far better in those cases for evidence to be presented to the entry clearance officer because there is no reason why fresh applications cannot be made or new evidence cannot be presented at that time. In addition to the fact that there is no threat of removal, that is why those cases should be treated differently.

Simon Hughes: I understand the Minister's arguments, but will she reflect on the fact that there will be difficulties and cost implications if people have to travel to make the application and have an interview, and then go back with more evidence? I should know the answer to this question, but I do not: am I right in believing that some applications involve a fee? A person whose application is refused might be told that they can make another, but that would be a more expensive option than an appeal, which does not involve a fee. Some people have very little income. There is also the usual suspicion that if the case is to go back to the person who made the first decision, it might not go much further. People will often opt for appeal, especially if no cost and a different person are involved.

 
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