Nationality, Immigration and Asylum Bill

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Ms Winterton: I have listened carefully to the powerful speeches that have been made. I hope that I can give some reassurance about some of the points. The clause is an important part of setting up a process that is clear from the beginning and avoids multiple applications and the inherent delays in the system that go with them. It is not a great sea change from the present system. The one-stop system has proved successful in encouraging applicants to give their reasons for staying here at an earlier stage and enabling us to deal appropriately with those who save up grounds that cannot succeed in order to delay removal. We can certify such late applications or claims so that a refusal does not currently attract an appeal. We are now building on that system and at the same time making its operation simpler and more consistent.

Under clause 92 we will be able to require a full statement of grounds from any applicant, not just asylum and human rights claimants. We will be able to make the requirement at any stage during the application. We will try to ensure that the form is clear, easily understood and available to people at the earliest opportunity so that they are aware from the start that this approach will be taken. That will enable us to determine any person's case comprehensively and accurately, in the light of all relevant facts, in one procedure. If our determination is negative it will enable an adjudicator to consider all the relevant issues at one appeal hearing. If the appeal is dismissed it will enable us to remove the person without time-wasting and resource-wasting delays. Many late representations are made simply to delay the inevitable.

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Whereas under the 1999 Act we can certify as late only an application made after a fully determined appeal has taken place, we are extending the concept to people who choose not to appeal, or choose not to comply with the disclosure requirement when had they complied they would have had a right to appeal. Those who comply will have a full opportunity to appeal on asylum or human rights grounds and have a comprehensive review of their case. Those who fail to take the opportunity will run the risk that there will be no appeal against a late claim because it will be certified under this provision.

Amendments Nos. 408 and 409 would together delete clause 74. That would render the one-stop system impotent and leave applicants to decide whether they wished to comply. That would be a retrograde step, taking us back to the position before the 1999 Act, when people were able to extend their stay in the UK by making a series of applications and appeals. Amendment No. 408 would allow a person to withdraw his appeal and then appeal on the same grounds later. We do not believe that the appeal system should be open to that kind of manipulation. Of course, an appellant has the right to a full and fair hearing, but there is a responsibility to ensure that we can prosecute the appeal promptly. It is not fair for those who comply with the requirements and ensure that they bring all the grounds of appeal in one go to be frustrated by, and subject to, delays caused by people who are evading the system by withdrawing or abandoning an appeal, or by failing to appeal at all.

9 pm

Mr. Malins: If the Secretary of State or his junior official made a certification, what avenue of redress would be open to the applicant?

Ms Winterton: Judicial review is open to the applicant. Several certifications have occurred under the current system to which there have been very few judicial challenges.

Simon Hughes: What would the Minister's view be if the amendments replaced

    ''the Secretary of State or an immigration offer''

with ''the adjudicator'' or ''the tribunal'', which would mean that the independent judicial authorities would take decisions?

Ms Winterton: That would take up more of the adjudicator's time. The certification is discretionary and can be changed at any time. I shall give an example that might reassure the hon. Gentleman.

Mr. Malins: The Minister's objection to the proposal by the hon. Member for Southwark, North and Bermondsey is that it would take up the adjudicator's time. I cannot believe that the Minister means that seriously. Of course it would take up the adjudicator's time, but that could not be a fundamental objection given that so many more adjudicators are being appointed and that time spent by an adjudicator is time saved by the court that hears judicial reviews.

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Ms Winterton: If I can go through more of the explanation, it might become clear why I think that having the process is preferable to not having it, which the amendments would provide for.

Amendment No. 409 is even more destructive because it would allow applicants to appeal more than once on the same grounds, to ignore any notice issued under clause 92 and to hold back grounds of application and appeal until divulging them was strategically convenient.

I shall touch briefly on Government amendments Nos. 358 and 359. They provide that the Secretary of State can deny further rights of appeal if appeals have already been brought under clause 60(1). In doing that, the amendments curtail that second or subsequent appeal if issues are raised that could have been raised at an earlier appeal.

I shall address other points that were made, and I shall use an example that might paint a picture of how the measure will work. A person who was given leave to enter this country as a visitor from another country might apply for asylum toward the end of that stay. After applying for asylum, the person would be asked to state any additional grounds for the application to remain in the United Kingdom. Let us say that that person's asylum application is refused, and she appeals. At the appeal she says that she is worried about human rights, but that had not been mentioned before. However, all grounds for wanting to stay should have been given under clause 92(4). Therefore, her human rights claim could be considered by the Home Office, certified and refused. She could not appeal against that decision, but she could ask for a judicial review of the decision. If, however, during her appeal she said that circumstances had changed and her brother had been tortured, and that she wished to apply under article 3, the Home Office could reconsider the case and decide not to certify it.

If a person has to make a new application because of changing country conditions, we will not certify. The whole idea of making the certification discretionary is that it can be changed at any time during the procedure. It does not have to be seen by an adjudicator in that sense, but it can be changed if there were obviously new reasons why the person could not produce the evidence at the time.

Simon Hughes: I understand the argument. Clearly, there are occasions when discussion is exercised to the benefit of the applicant. That does mean that we must have a law that says that it has to have the right to act to the detriment of the applicant. Of course, people are always in favour of the exceptional circumstances test being used by Secretaries of State when they use their discretion. We are arguing that they should not have the discretion to take away rights that could reasonably be left to the independent authorities.

Ms Winterton: The hon. Member for Woking referred to the adjudicator. If the new circumstances that I have described were raised during the appeal, the adjudicator could consider them. If there were changing circumstances—and there were good reasons for that—the adjudicator could consider the matter.

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As for someone being poorly represented, the person can appeal out of time to an adjudicator. If that person's explanation were accepted, the application would not be certified.

Mr. Gerrard: There is a procedure now whereby people can ask for appeals to be heard out of time. Surely we are not dealing with someone asking for that, but with someone who is told that he cannot appeal on another issue under clause 60. That is not the same.

Ms Winterton: If the person was appearing before the adjudicator, and it could be shown that the advice that had been given in the first instance was considered to be poor, the adjudicator could consider the evidence within the appeal itself.

The hon. Member for Southwark, North and Bermondsey referred to new grounds after the initial appeal. It would not be appropriate for a claim to be certified if the facts on which it was based did not exist at the time of the first appeal. There could have been a genuine change of circumstances, for example. I reiterate that certification is discretionary. My hon. Friend the Member for Walthamstow asked about subsection (1)(b). It must be read with subsection (1)(c), which states that

    ''in the opinion of the Secretary of State or the immigration officer the person has no other legitimate purpose for seeking to appeal.''

With regard to poor representation, if the applicant is refused and wants to put in a new application, certification is discretionary. A new application could be made if it were felt that the legal representation had been poor. That can be put before the caseworker, who has the discretion to say that the application does not have to be certified. I should stress that at any point during the process the immigration officer or caseworker can reconsider certification if it is felt that new evidence should be produced that would overturn the initial decision of certification.

Mr. Malins: The Minister may correct me if I am wrong, but we are facing the prospect of a matter never getting to an adjudicator. The immigration officer can make a decision contrary to the wishes of the applicant and then make a certification—end of story. Is that not right?

Ms Winterton: The certification is made if the grounds of the appeal that were not included in the section 92 form are brought up at a later stage. Unless the applicant can show that circumstances have changed, and it was not possible to put that case when the section 92 form was filled in, the caseworker can certify the application.

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