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Session 2005 - 06 Publications on the internet Standing Committee Debates Immigration, Asylum and Nationality Bill |
Immigration, Asylum and Nationality Bill |
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Column Number: 41 Standing Committee EWednesday 19 October 2005The Committee consisted of the following Members:Chairmen: Sir Nicholas Winterton †Mr. Eric Illsley†Bellingham, Mr. Henry (North-West Norfolk) (Con) †Brown, Lyn (West Ham) (Lab) †Burnham, Andy (Parliamentary Under-Secretary of State for the Home Department) †Gerrard, Mr. Neil (Walthamstow) (Lab) †Gillan, Mrs. Cheryl (Chesham and Amersham) (Con) †Harris, Dr. Evan (Oxford, West and Abingdon) (LD) †Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab) †Kawczynski, Daniel (Shrewsbury and Atcham) (Con) †Leech, Mr. John (Manchester, Withington) (LD) †Mahmood, Mr. Khalid (Birmingham, Perry Barr) (Lab) †Malins, Mr. Humfrey (Woking) (Con) †McCarthy-Fry, Sarah (Portsmouth, North) (Lab) †McNulty, Mr. Tony (Minister for Immigration, Citizenship and Nationality) †Miliband, Edward (Doncaster, North) (Lab) †Prosser, Gwyn (Dover) (Lab) †Ryan, Joan (Lord Commissioner of Her Majesty's Treasury) †Scott, Mr. Lee (Ilford, North) (Con)
Dr. John Benger, Mr. Frank Cranmer, Committee Clerks
†attended the Committee [Mr. Eric Illsley in the Chair]Immigration, Asylum and Nationality BillClause 1Variation of leave to enter or remain4.30 pmDr. Evan Harris (Oxford, West and Abingdon) (LD): I beg to move amendment No. 85, in clause 1, page 1, line 11, leave out 'the leave was' and insert 'leave was previously'. The Chairman: With this we my discuss the following amendments: No. 89, in clause 1, page 1, line 12, leave out from 'Convention' to end of line 14. No. 18, in clause 1, page 1, leave out lines 15 to 21. No. 19, in clause 1, page 1, line 19, leave out 'and' and insert 'or'. No. 70, in clause 1, page 1, line 21, at end insert—
No. 102, in clause 1, page 1, line 21, at end insert—
No. 71, in clause 1, page 2, line 14, at end insert—
Dr. Harris: I welcome you to the Chair, Mr. Illsley. It is a pleasure to serve under your chairmanship. I hope that today is not as eventful as yesterday, with warming radiators and faulty microphones, although, on reconsideration, it was not that exciting. Amendments Nos. 85 and 89 can be considered together. Amendments Nos. 18 and 19 were tabled by the Conservatives to probe the Government's intentions, and I imagine that they will speak to Amendment No. 85 deals with subsection (4), which adds two new categories to the list of definitions of an immigration decision in section 82(2) of the Nationality, Immigration and Asylum Act 2002, and deletes two existing categories under paragraphs (d) and (e) of that section. The two new categories, (fa) and (fb), each have two criteria, under sub-paragraphs (i) and (ii), that must both be fulfilled for a decision to qualify as an immigration decision under one of those definitions. The amendment would amend clause 1(4)(fa)(i). Our intention is to probe the Government. Would the proposed new wording allow wider rights of appeal for people who were previously recognised as refugees but who no longer possess refugee status because they married a British citizen, for example, or obtained leave as a work permit holder? I also seek elucidation on the purpose of clause 5, which touches on that issue. One of the bizarre side effects of the change of policy as of 30 August 2005 to grant only five years' leave to enter to refugees and holding a review over their heads is that a refugee would be well advised to switch into a different immigration category, if he or she possibly can, to avoid a review. Will it make a difference if someone was previously granted refugee status but no longer has it? I am not sure that the intentions behind the amendment were clear, and I hope that the Minister will have time to address that. Amendment No. 89 would remove clause 1(4)(fa)(ii), thus allowing the relevant person to appeal even if the result of the variation or refusal taking effect does not leave them without leave to enter or remain. The amendment is intended to tackle the key part of the clause. Clearly, it would mean that there would be wider rights of appeal for persons previously recognised as refugees. That relates to the problem that the Government are creating by removing the right to appeal against variation and retaining only the right to appeal against a decision to remove the person. If a decision to remove is issued at the same time as a decision not to vary or extend leave, there is no problem because a person can appeal on the relevant grounds. Often, however, that is not the case, and there are several reasons why that might be. First, the person might still have unexpired leave. For example, if a student with one-year leave applies as a spouse and gets turned down with no right of appeal—that is a problem with the existing legislation as well—he or she still will still have unexpired leave. It seems reasonable to dispose of appeals while people are here if we can and they are not otherwise overstaying. Secondly, the immigration and nationality directorate is very poor at giving removal decisions, especially in immigration rather than asylum cases. That means that a person can either leave the UK voluntarily or stay and become an overstayer, which is A further example would be that of a spouse who applies for settlement at the end of a probationary period and is refused because a sham marriage is alleged or domestic violence allegations are rejected. That person will be made an overstayer by the decision and, because of clause 9, which we are soon to discuss, will have a right of appeal only if a removal decision is made that requires an official in the immigration and nationality directorate to use some initiative. I fear that possibly, or even probably, that will not happen. On amendment No. 70, I hope that I have time to read the letter that I have only just picked up from the Table. I am sure that efforts were made to get it to my office, but I did not receive it until a few moments ago. Until I have seen it, I shall not waste time by merely repeating the arguments I made yesterday. I shall leave the hon. Member for Walthamstow (Mr. Gerrard) to comment on amendment No. 71. I note that it covers much of the same ground as amendment No. 86 in the next group. If I move that amendment, I will do so only in order to deal with issues that have not been raised under amendment No. 102. Amendment No. 71 is substantive. It seeks to probe the intentions behind the relevant part of the clause. It would add a new section 10A into the Immigration and Asylum Act 1999 relating to the ability of immigration officials to provide directions for a person's removal. Clause 1(5), which it amends, inserts a new section 83A into the Nationality, Immigration and Asylum Act 2002, introducing a new right of appeal for people who can no longer be recognised as refugees, but who are permitted to stay here in another category. The amendment does not seek to change that, but would add another section to the 1999 Act after section 10. The amendments would enable the Government to make simultaneous variation and removal decisions, thereby presenting an alternative way of curing the perceived mischief of multiple appeals. They would enable the applicant to appeal against the decisions before having to leave the UK, and to stay in the UK while appealing without thereby committing a criminal offence. The point of the amendment is to make it clear that the Government have the power to combine appeals—to provide a ''one-stop''—without doing it in the way proposed in the Bill, which we find unacceptable. As the Minister knows, it is currently possible for a person to appeal against a variation decision and, if she loses the appeal, not to have to leave the UK to appeal against a subsequent decision to remove her under section 10 to the 1999 Act. If the Government contend that clause 1, supported by clause 9, is merely intended to deny successive appeal rights, perhaps the Why are the Government seeking to establish a procedure that forces people to leave the country and renders them illegally present here until they do, when it is possible to deny successive appeals by making simultaneous variation and removal decisions? Why is the Bill constructed as it is? All that we have heard from the Minister amounts to a desire to streamline the process. He has not really explained why he wishes to criminalise and make life difficult for so many people, many of whom, on the basis of the quality of decisions that we have seen, would make successful appeals. I have had a briefing on this matter from the Refugee Children's Consortium which I would like to bring to the Minister's attention, because the part of the clause that we are discussing affects its standing. It relates to section 83 of the 2002 Act. In 2003, 98 per cent. of unaccompanied children were refused asylum. Instead, 73 per cent. of them—a significant proportion—were granted exceptional or discretionary leave for a limited period, the majority purely on the basis that they were children. I do not think that that is contentious. Some of those children do not currently have a right to appeal against the initial decision to refuse them asylum, as section 83 of the 2002 Act precludes appeals from those granted a period of leave to remain of one year or less. That affects children who, for example, are refused asylum and granted discretionary leave after their 17th birthday, who, although they can make an application for further leave to continue after their 18th birthday, are normally refused on the grounds that the original leave was granted only on the basis of age. As initial decisions take some time to process, many 16-year-old applicants are also denied that appeal right. Since 1 October 2004, unaccompanied children from Albania, Bulgaria, Jamaica, Macedonia, Moldova, Romania, Serbia and Montenegro, including Kosovo, and Sri Lanka are offered at the most only one year's discretionary leave in the first instance. That group is also affected. They are now deprived of a right to appeal against the initial decision to refuse them asylum. In theory, the two groups of unaccompanied minors that I have mentioned will have a right of appeal if they are subsequently granted further leave to remain which results in an aggregate discretionary leave of more than 12 months. However, it is not possible to see from Home Office statistics how many children have been granted an extension and thus have been able to appeal against their initial refusal of asylum by virtue of an aggregated grant of leave of more than 12 months. The first opportunity that those people have to appeal against a refusal to grant them asylum is within their subsequent variation appeals. The failure to permit those groups of unaccompanied children a variation appeal will have a very serious consequence. Recent research shows that about 30 per cent. of unaccompanied children had their asylum appeals allowed. Neither the Home Office nor the Department for Constitutional Affairs collects It is fair to say that my points are relevant and new in respect of those groups of people. To avoid having to bring this up in a clause stand part debate, which we probably would not wish to see proceed too far given the extensive debate that we have had, let me say that I am fundamentally concerned about the Government's general approach. That is the key point. The quality of decisions, which we discussed yesterday when the Minister spoke at length about his hope that everything will change under managed migration— |
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