Nationality, Immigration and Asylum Bill

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Simon Hughes: I am reassured by the Minister's answer about ''clearly'' and ''manifestly''. I have not checked my thesaurus, but it is clear that those words have the same meaning. I accept the Minister's point that ''clearly'' is the more commonly used word, although many Committee members may consider that it would be nice to have a more consistent application of that principle, and that ''commences'' is another word that could be removed as part of that process. I will take further advice on the point, but it sounds fine, and it is helpful that the Minister has put those comments on the record because the courts can take guidance from them in future.

I will not press the amendment to a Division. I think that we agree about judicial review, but I want to take advice about the ''in his opinion'' issue. The provision appears to provide a greater opportunity for the Secretary of State to exercise flexibility or wider discretion, although that is as much a technical legal question as it is a lay reading question. However, we will want to return to those matters.

Mr. Malins: I wish to press the matter a little further. The hon. Member for Southwark, North and Bermondsey appears to have concluded that he wants to withdraw his amendment, and I understand why he might decide to do that, but I have a couple of remarks that I want to put to the Minister. She asserts that ''manifestly'' is not in common use in this country, but that proposition is manifestly untrue—and I have just established that by using the word. She has said that it

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is better English to use a word such as ''clearly'', but earlier today our debate was dominated by whether ''begins'' was preferable to ''commences'', yet commences is all over the Bill. Therefore, her argument is not strong.

The phrase ''manifestly unfounded'' is recognised by our courts, which is more than can be said for ''clearly unfounded''. The Minister also made it absolutely plain that there is not a scintilla of difference between the two phrases. Therefore, as ''manifestly'' is exactly the same as ''clearly'', there can be no principled objection to accepting amendment No. 407. I think that the Minister is about to be passed a piece of paper that says that there is an objection, but there cannot be an objection, given that our courts know so well the phrase ''manifestly unfounded''.

Angela Eagle: It is manifestly true that the word ''manifestly'' can be used in parlance. My assertion is that, in general, it is not used as much as ''clearly''. Therefore, in the drive to make legislation more understandable—clause 69 provided an excellent example of the arguments in that respect—''manifestly'' has been replaced by ''clearly''.

The courts have already said that ''manifestly'' means ''clearly'' and ''clearly'' means ''manifestly'', so we are dancing on the head of an even smaller pin than we managed to get ourselves to dance on earlier today. I have assured the Committee that there is no policy difference, and no difference in policy intent, between the phrases ''manifestly unfounded'' and ''clearly unfounded''. That is what Committee members should be concerned about.

With that reassurance, I hope that the hon. Gentlemen will see that the point is one of style, not substance, and that the wording will not bear upon whether appeals will be heard. The phrase does not narrow or change the conditions in any way.

Simon Hughes: I reflect that it is happy hour in many pubs up and down the country, not that many of us get to them. The Minister is right that in the league table of matters that should divide us, this one of wording should not be near the top. I do not think that I am softer, less cynical or a bigger pushover than the hon. Member for Woking, but I was persuaded by the Minister's comments. If we can start to use clear English and this is the beginning of a process, I welcome progress and look forward to the wind of change blowing through the rest of legislation.

Angela Eagle: I accept that, but as it has given me such trouble on this Bill, I am not sure that I am still in favour of that.

Simon Hughes: I am sure that, in her moments of calmer reflection, the Minister will realise that progress has been made.

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In the interests of happy hour agreement and conscious of the fact that there is a rather more controversial and important matter coming up that may divide the Committee, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72, as amended, ordered to stand part of the Bill.

Clause 73

Appeal from outside United Kingdom: removal

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

Mr. Malins: Although one of the shortest clauses in the Bill, clause 73 is significant. It states:

    ''A person who is outside the United Kingdom may not appeal under section 60(1) on the ground specified in section 62(1)(g).''

That sounds harmless, but several outside bodies including the UNHCR have expressed concern. As we all know, the UNHCR is greatly respected in the field of asylum and immigration. It would not express concern unless it was felt genuinely and strongly.

In short, the UNHCR finds much cause for concern in the clause and calls for its deletion. It says that the clause could potentially bar an applicant from appealing on the basis of events that occur after his removal from the UK, and that it is possible that an expression of a well-founded fear of persecution may gain further evidentiary weight from events occurring after removal from the UK. Clause 73 would prohibit applicants in such cases from relying on that to appeal on the ground in clause 62(1)(g). That fear should be addressed and, accordingly, I should like some guidance from Ministers on whether the fears so ably expressed by the UNHCR have merit before I decide how to vote on the clause.

Simon Hughes: Conscious of the time, I will give an example that puts the same question in a different way. In the past, I have made representations on behalf of constituents who have been put on to planes and sent home in error. The authorities have accepted that it was a mistake that the decision was not changed and the message that the people should be kept in this country did not pass down the line. Clause 73 will mean that such people would not be able to appeal at all, whether they started their appeal here and were incorrectly sent abroad during the process, or whether they had a right of appeal that they should have been entitled to exercise when they were here, but were sent away through an administrative error and were therefore barred from exercising it.

I have practical experience of that. There have been three cases in 20 years—three cases too many—in which people have been wrongly sent back. It is nonsense that people who desperately need their appeal to be heard can be deprived of rights that they need more than anyone else.

Angela Eagle: I hope that I can reassure—

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7 pm

Sitting suspended.

8.30 pm

On resuming--

Angela Eagle: Before we were so rudely interrupted, I was about to say that the clause is very simple. It refers to appeals against removal from outside the United Kingdom. People can appeal against removal only if they are about to be removed. If they have already left the country and their asylum claim has been through all its stages and failed, it makes no sense to allow an appeal against removal from outside the country.

The hon. Member for Southwark, North and Bermondsey referred to three cases of unlawful removal and I have come across one or two. If someone is removed unlawfully, they can return to the United Kingdom and the appeal can be heard in the under the original process. However, we cannot have a surreal situation in which we allow people who have been removed or who are not in the UK to appeal against removal. That would not make sense. I hope that hon. Members accept that and will allow the clause to stand part of the Bill.

Simon Hughes: I understand the logic of the Minister's argument, but I recollect that certainly in one case and perhaps in two there was no option to return. It might be necessary to ensure that an appeal is dealt with even if the appellant is not within the jurisdiction.

Angela Eagle: No.

Simon Hughes: If people cannot physically return—if they were unlawfully kicked out and cannot return—they should not lose their right to appeal because, through no fault of their own, they are outside the jurisdiction.

The Government are properly engaged in conversation with the new French Interior Minister--I heard the Under-Secretary elaborating on that on ''The World Tonight'' recently--about Sangatte and the channel tunnel. We hope that there will be progress. The hon. Lady has heard me say that there is a logical argument for people having their cases dealt with without entering the jurisdiction in the first place. If we move to a situation in which British officials at Lille, Paris, Brussels, Calais or elsewhere, in addition to those on channel tunnel trains, can deal with asylum seekers who are not yet within the UK because they are on the other side of the channel, presumably the law would have to be changed. I am alerting the Government to the fact that if the Government are considering extra-territorial applications--I think they should and I believe that Europe is moving in that direction--the clause would appear to fly in the face of that policy.

Angela Eagle: Under the Geneva convention, an asylum seeker must be in the country in which they seek protection to claim asylum. The appeal under clause 73 is an appeal against removal. The hon.

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Gentleman is arguing that people who are outside the jurisdiction of the country in which they are claiming asylum should be able to appeal against being removed from a country that they are not in. That simply does not make sense.

If someone has been removed unlawfully after an appeal has been heard and turned down, or the time limit on making an appeal has expired, or they have decided not to appeal, they can return and continue their appeal from within the jurisdiction. Clause 73 covers all those eventualities and I see no reason to change it. We must not allow people to appeal against being removed from a country that they are not in.

 
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