Nationality, Immigration and Asylum Bill

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Ms Winterton: I understand the hon. Gentleman's point, but we must balance that against our objective of ensuring that current appeals processes can deal with current circumstances. We are talking about the effect that removal has on individuals. We must balance the penalties involved in such circumstances. It is important to ensure that at the earliest point people are made aware of the information that they need to provide to, for example, entry clearance officers.

In reaching a decision, the tribunal may consider evidence about any matter that it believes to be relevant to the adjudicator's decision, including evidence that relates to a matter that arises after that decision. However, that will not apply in cases in which the appeal is against refusal of entry clearance or of a certificate of entitlement. If clause 80(3) were removed, as proposed in amendment No. 415, people appealing against refusal of entry clearance or of a certificate of entitlement would be able to introduce new evidence on appeal. That would cause unnecessary expense, an increase in adjournments, and additional complications. I hope that that explains why I hope that the Committee will accept the Government amendments and reject the Opposition's.

Mr. Malins: The Minister replied in a most courteous and kindly fashion. I apologise for having forgotten to say earlier that Government amendment No. 348 seems to reflect some movement on their part. However, if I am expected to be confident in the Government machinery, the news that they now believe that what they thought was terrific on 27 April, and must have thought was terrific in the weeks leading up to that point, is not terrific makes me shudder, because it means that we cannot rely on them to have a consistent view.

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Amendment No. 348 is not well drafted. The English is appalling—it would not score much out of 10 in an exam. If it were accepted, clause 63(4)(b) would read in full:

    ''the adjudicator may consider only evidence which was available to the person who took the decision to refuse or which concerns a matter which was relevant to the taking of the decision.''

That is not good English. Many people will scratch their head and ask what it means. I hope that the hon. Member for Southwark, North and Bermondsey agrees that the adjudicator should consider whatever they want to consider and whatever they think is relevant. If the Minister is arguing that the Bill states that, I am intrigued to learn how.

There is an interesting parallel in criminal law—I am not digressing. If the defendant had a defence that was not used, it is up to the judge when summing up to direct the jury that it is open to it to find according to that defence. That is certainly a case of bending over backwards to help. What is the specific difference between what is proposed and giving the adjudicator in the appeal absolute discretion to hear whatever they want and assess it however they want?

5.30 pm

The hon. Member for Southwark, North and Bermondsey made an interesting point about an issue that recently arose in my constituency. I am now scratching my head about whether I did the right thing. Someone's entry clearance application was turned down; I thought that that was ridiculous, as it was a top case, so I decided to back the person 100 per cent. They asked whether they should appeal, and I said, ''No, it would take years to get an appeal. I'll give you a letter signed by two notable persons in the constituency, plus me. Fax it to Colin Mulcahy, the boss at the Islamabad embassy. Once he sees my imprint on it and that of my Labour opponent at the last general election, Sabir Hussain—a great man, who represents the community in Woking very well—you should make a fresh application. I bet my bottom dollar it succeeds.'' At the time, I was thinking of speed for the applicant, but it might cost them money, so in a way I slightly regret what I have done—but I digress.

The Minister should realise that the abuse talked about in the press and being considered by the Committee and Parliament is the so-called abuse in some asylum applications. The world of immigration appeals is completely different. The clause is not satisfactory. What is the specific difference between its provisions and giving the adjudicator a totally free hand to take into account whatever they want?

Ms Winterton: I am sorry that the hon. Gentleman does not welcome our decision to make an amendment. That is what parliamentary scrutiny is about. We have on occasion accepted the points made in debate, and I hoped that he would be more welcoming of the points reflected in amendment No. 348. We have tried to ensure that an adjudicator does not rehear cases that have already been heard and determined. I gave the example of someone who applied for variation of leave as a student, their case

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was determined, but they then made another application. Hearing previously made claims all over again would not be a sensible way to proceed.

Mr. Malins: I do not want to oblige the adjudicator to hear anything. That is the point. I am saying that the adjudicator, a judicial person, should have discretion. They would not have to hear matters that had been previously determined.

Ms Winterton: But if we are to create a system in which there is clarity, not confusion, it is important to state what it is appropriate for adjudicators to consider at the various stages, otherwise the adjudicator's position could be unclear. The difference that we are introducing is that the appellant would be able to raise matters that the entry clearance officer had not considered. That is important and I hope that, on reflection, the hon. Gentleman will see that we are trying to create a system that is easily understood and that makes clear what adjudicators are expected to examine when hearing appeals. Otherwise, the position becomes confused, which helps neither appellants nor those who represent them. I hope that the hon. Gentleman accepts that the changes made by Government amendment No. 348 meet several of his concerns.

Simon Hughes: The Minister will excuse me for not being grateful for the small mercy that she offered. She heard me say that the point has not been addressed, which is a concern that the hon. Member for Woking and I share. May I make two points before I leave him to decide what to do with the amendment?

It is important that the British—in this case, English—judicial system has a reputation for doing its job well. Doing a job well does not mean making nit-picking decisions that preclude people from looking at reality; it means allowing those who are appointed to review the case in the round. One of the reasons why asylum seekers want to come to this country is that we have a good reputation for fairness, honouring human rights and upholding the law, whereas the countries they come from do not have that good reputation. A system that works—one in which a civil servant makes a decision that is reviewed by an independent person—is good for Britain, to use a phrase that Prime Ministers have used over the years. Such a system would mean that we were seen to be doing the job properly.

If for some reason—to use the colourful phrase of the hon. Member for Woking—the tackle is not in order at the time a case is presented at the desk at a British mission overseas, it is sensible that if the case enters the appeal system, there is a chance, based on any evidence, for it to be reviewed in the round. If a person comes to this country as a student or a spouse or to work, upholding a decision taken on the basis of three quarters of the relevant facts is not important; what is important is to make the right decision so that a person who tries to come here as a nurse can do that.

I understand the arguments about stopping rogues stringing out appeals and about ensuring that there is one hearing, not six. I do not understand the point about allowing the adjudicator to say, ''Right, this is

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all the case. I understand why the entry clearance officer made his decision, but I now know that the flat is big enough, or the money is sufficient, or the course has been agreed to.'' I hope that the Ministers will think about that and that they will table an amendment that is in line with amendment No. 403, whether or not that amendment is pressed to a vote.

I neglected to say earlier that Government amendment No. 364 and amendment No. 415 relate to the second stage of the process—the Immigration Appeal Tribunal. That is the next step up at which it is even more logical and important to consider everything; to do otherwise is to defend a limited view that might be all that the entry clearance officer had to go on. Both stages of the appeal—the adjudicator and the tribunal—are important, so I hope that Ministers will be persuaded to make changes.

The Government chide Conservative spokesmen for the wicked asylum and immigration policies that were introduced when the Tories were in power, but, as we have discovered, the 1999 Act is no model of perfection. Ministers can fairly argue that the 1999 Act brought changes, but no one believes that it should be regarded as the bible of wonderful immigration and asylum policies. Much has been changed, thank goodness, but valid reasons remain to change more.

Mr. Malins: A principle is at stake here and we parliamentarians should keep an eye on it. The principle is that judicial discretion should not be fettered. An appeal from an entry clearance officer to an adjudicator is not based on a point of law; it is an appeal against a decision. It is wrong to say to the adjudicator anything other than, ''This is the appeal; you hear it''. No one should say, ''You have to hear this. You have to hear that. You have to listen to an argument on spurious subjects for 28 days.'' That is the point. What we should be saying is, ''Decide what you want to hear. Reject some parts of the appeal. Feel free to refuse to hear arguments about a particular subject. Feel free to demand hearing a particular argument.'' That gives the adjudicator discretion.

That problem, which involves the state, also applies to other parts of the Bill. The state is effectively saying to the adjudicator, ''Yes, hear the appeal, but do it our way.'' I exaggerate to make the point, but the state is placing constraints on the judiciary. The hon. Member for Southwark, North and Bermondsey is right that this country's judiciary has a good reputation for being wholly independent of the Executive. It must stay that way. Any measure that ties in the judiciary with the Executive is not only bad per se, but sends a bad signal to other places about a link between them. We must keep an eye on such developments generally.

I shall not ask hon. Members to join me in a Division on the amendment. The Government have made a concession, for which I am grateful—clearly, they are listening. We have had an important debate. The adjudicator should be a free agent, able to decide

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to hear whatever he or she wants and to attach to it whatever weight he or she wants to attach. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 348, in page 35, line 7, at end insert

    'or which concerns a matter which was relevant to the taking of the decision'.—[Ms Rosie Winterton.]

Question proposed, That the clause, as amended, stand part of the Bill.

 
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