Nationality, Immigration and Asylum Bill

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Mr. Malins: The hon. Gentleman and I strongly agree on that point. Does he further agree that such Bills will be considered properly and carefully only if, as well as Special Standing Committee, a Select Committee can spend time considering the clauses and hearing evidence in the informal way that Select Committees do?

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Simon Hughes: I agree. I think that I have already said that some EU countries do just that. Their Governments produce Bills that get a formal First Reading, and are then passed to an inquiry body made up of parliamentarians who take evidence. It is only when all parties involved have certified that the Bills have gone through that process adequately that they come back to the Floor of the House for parliamentary scrutiny. I am sure that we can learn from such systems when it comes to modernising our Parliament.

Ms Winterton: I shall be brief, as I am sure that hon. Members want to move on to other parts of the Bill. I assure them that the clause and those that follow it are largely equivalent to the sections in the Immigration and Asylum Act 1999 that restrict rights of appeal. The clauses, however, are arranged differently to suit the revised layout of immigration decisions and grounds for appeal.

The only further restriction is in respect of cases in which the application is for a purpose that is not permitted under the immigration rules. In those cases, the adjudicator would have very limited jurisdiction. The vast majority of applicants can hope for nothing but a recommendation, which is not even binding on the decision maker.

Let me give some examples of the effects of the amendment. It would remove subsection (2)(c), which removes the right of appeal for persons applying to remain

    ''in the United Kingdom for a period greater than that permitted... by immigration rules''.

I shall give the example of a working holidaymaker who applied under that scheme to come to the UK for two years, and knew that limit before applying. There is no appeal against not extending that time because the working holidaymaker scheme had finished.

Different circumstances might apply: suppose that the person became engaged and wanted to apply under the fiancee application in the UK, although the proper thing to do would be to go back and apply from abroad. If that person then wanted to become a student, he or she could apply under that category but not under the working holidaymaker scheme, because there is no way that the appeal could be heard under that scheme.

Amendment No. 405 would remove subsection (2)(d), which removes the right of appeal for persons who apply for leave to

    ''enter or remain in the United Kingdom for a purpose''

that is not covered by the immigration rules. That could apply to a case in which someone wanted to come and supervise a relative who was studying here but was having difficulty completing their studies.

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Under the immigration rules, the relative would not be able to do that, but they might be granted permission by the immigration and nationality directorate at the Secretary of State's discretion. In those circumstances, we would not want an adjudicator to review that discretion, but the decision could be judicially reviewed.

We are talking about cases in which appeals will not be allowed because they, effectively, do not come within the immigration laws. There is nothing sinister about the provision. I accept that the amendments are probing, and I hope that my explanation persuades the hon. Member for Woking to withdraw the amendment.

Mr. Gerrard: I understand the logic of saying that it is difficult to have appeals on matters that are discretionary and outside the rules. The answer to some of those problems and to some of the issues raised by the hon. Member for Woking is to start to consolidate within the immigration rules those established concessions that the Home Office has stated would apply. In cases where the concessions were not applied to someone, they would fall within the category of appealable decisions. That is the way to simplify this area, rather than to build complex appeal arrangements around discretionary decisions.

Mr. Malins: I raised one little language point in my comments on amendment No. 404. I asked whether the phrase

    ''seeking to be in the United Kingdom''

includes people appealing from within the UK as well as those who do so from outside. Furthermore, what is the difference between that and the phrase

    ''seeking to enter or remain''?

The choice of language is odd. Perhaps I have missed a drafting point, but I should be grateful if the Minister let me know what it means.

Ms Winterton: It is covered by the examples that I used of the working holidaymaker who wanted to be in the United Kingdom for a longer period than permitted by immigration rules, or someone from outside who was applying to enter to look after a relative, or even someone who was in the UK on a visitor's permit for six months and wanted to extend the permit because her daughter had had a baby and she wanted to help look after it. Such a case would fall outside the current rules. The Government agree with the points made by my hon. Friend the Member for Walthamstow, and we intend to take steps to consolidate the concessions.

Mr. Malins: In the circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ms Winterton: I beg to move amendment No. 351, in page 36, line 8, at end insert—

    '( ) Subsection (2) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'.

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The Chairman: With this it will be convenient to take Government amendments Nos. 352 to 354 and 360.

Ms Winterton: The amendments ensure the integrity of the immigration appeals process in terms of our obligations under the Human Rights Act 1998 and the Race Relations Act 1976 by providing a right of appeal on race and human rights grounds where appeal rights are otherwise restricted. The clauses covered by the amendments deny rights of appeal essentially in cases in which the appeal cannot succeed or the matter under appeal cannot be regarded as sufficiently important to the applicant to justify the use of the appeal resources involved.

Except in the case of applications to be made for a purpose not covered by the immigration rules, these provisions reproduce existing provisions in the Immigration and Asylum Act 1999. Indeed, most such cases have not attracted rights of appeal since the enactment of the Asylum and Immigration Appeals Act 1993. However, it is clearly inappropriate to apply such arguments against providing a right of appeal if human rights or a complaint of racial discrimination are involved. The amendments make the necessary exceptions for such cases. The exceptions are already provided for in the Immigration and Asylum Act 1999 and the Race Relations Act. As now, we shall not invite an appeal on race or human rights grounds unless the application was made on those grounds. It is obviously not for us to solicit new applications in that way.

Amendment No. 360 covers clause 76. The case is different, as it relates to people whose presence in the UK the Secretary of State in person considers contrary to the public good. Obviously, we need to ensure that a person who is refused leave to enter and who falls under that clause can make an asylum appeal. If necessary, we shall table a further amendment to do that. I hope that the Committee will agree to the amendments.

Simon Hughes: The amendments seem to be helpful and in the right direction. I shall not oppose them now, although I shall take advice on the Minister comments. The amendments appear to be sensible extensions of the legislation for the categories involved.

Amendment agreed to.

Clause 66, as amended, ordered to stand part of the Bill.

Clause 67

Compliance with procedure

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

Mr. Malins: The clause restates provisions in the 1999 Act, so we should not be surprised to find it here. Concerns have been expressed by the UNHCR, among others. The UNHCR recognises the need for an official procedure in the interests of both asylum seekers and the proper functioning of an asylum system. It is worried that the clause might hamper

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asylum seekers' access to protection, and believes that the removal of appeal rights for non-compliance with procedural requirements is an overly restrictive approach that could result in the substantive elements of a claim not even being examined.

Common experience suggests that asylum systems benefit from some flexibility for time limits and other procedural parameters, as, indeed, does much of life. The UNHCR is anxious that strict parameters for appeals should not be implemented in a way that prejudices asylum seekers and impedes the effective review of an asylum claim at the appeal stage. I make those points on behalf of the UNHCR.

Simon Hughes: It seems important to have what in other legal contexts is called a slip rule—something that allows a failure to carry out a procedure not to bar someone from having the substance of their case examined. The example that I cite is a parallel, rather than a case that relates directly to immigration. I dealt with a housing application to my local housing office in Southwark—I mischievously add that this happened under the old regime rather than the new regime that is about to take over under new political colours next week—

Mr. Malins: A Tory gain.

Simon Hughes: No, not a Tory gain.

The homeless applicant did not have his homelessness application considered because he had failed to fill in one box in the form, and no one told him for weeks. That is the nonsense that we are trying to avoid.

I have two equally relevant but slightly different questions about the procedures. The clause relates to procedures in this country. I have never understood why if someone makes an application in, say, Harare, to come to this country, their appeal has to be lodged in Harare, even if it is to be dealt with here. Why can it not be lodged here instead of Harare? I think that the deadline for lodging an appeal is normally 28 days.

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Often, the decision is given and, as the hon. Member for Woking said, there is consultation with the sponsor in this country as to whether the next step should be appeal or a new application. The appeal form is filled out in this country—I have regularly done this myself—and must be returned to the initial place of application to be lodged, only for it then to return to London. That is a nonsensical system. Has any thought been given to allowing the appeal to be lodged in Harare by the applicant or in London by their sponsor or someone else nominated by them? That would save on bureaucracy. It is not just a notional question: I once had terrible trouble getting a form back to Ethiopia to be lodged in time, simply because sending something to Addis Ababa at that time was very difficult.

I do not know whether my next point arises only under clause 67 or more widely. We have been discussing decisions made here, as some are, and

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decisions made at foreign missions by entry clearance officers. Perhaps because I am a simple individual, I have never understood why some decisions are taken by Foreign and Commonwealth Office personnel and some by Home Office personnel—why all immigration and asylum decisions are not taken within one Department.

There may be a wonderfully persuasive argument why that is the case, perhaps to do with history. There may be a simple answer that has eluded me and many others. I have no more disparaging or more complimentary views about people in either Department. I have met many of them, and they do an extremely good job, for which I am grateful. In addition, Ministers in both Departments have been courteous when I have raised matters with them. However, it would help all concerned if we had to deal with only one Department.

Have the Government ever reviewed whether all immigration and asylum matters could reasonably be dealt with by one Department? The Foreign Office would no doubt say, ''No, that would be empire building by the Home Office'', and the Home Office would say the same about the Foreign Office. Departmental rivalry might well be involved, but I cannot understand why people's applications to come to the UK as asylum seekers or immigrants cannot be dealt with by one group of people. That is relevant because it would result in less complication and fewer procedural problems for applicants. As it is, they do not know whether officials or employees are from the FCO or the Home Office. Why cannot one Department deal with these matters?

 
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