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4.19 p.m.

Lord McIntosh of Haringey: My Lords, I thank the Minister, as is proper, for her detailed exposition of the contents of the Bill.

It is a small Bill, and your Lordships will be grateful for that, but it is in its structure and content a complex Bill. It is complex in structure because it largely consists of amendments to the Immigration Act 1971 and to the Asylum and Immigration Appeals Act 1993. Many noble Lords will remember the detailed debates on that Bill. They are engraved on my heart.

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Although the Bill is short, I warn your Lordships that we shall criticise virtually every clause, either because we disagree with the purpose or because we believe that it is badly drafted--in many cases both. It is a small Bill but one that is full of poison. It is full of unjustified and ill-conceived prejudice against many people who come to the country and enrich our life. They have done so for 1,000, 2,000 and probably more years. Our life blood in this country has been immigration. Of course, it has to be controlled. There must be rules about asylum and immigration. But I suggest that in many respects the legislation goes too far.

The origins of the Bill are not auspicious. Only three years ago we debated a Bill put forward not by this Minister but by the noble Earl, Lord Ferrers, as being a final tidying up of immigration and asylum procedures. He assured the House that when that was done the difficulties which had been identified in the preceding years would be overcome and we could look forward to the calm uplands of immigration and asylum policy. It is clear now not only that that was false but that the Government did not believe it at the time. Almost immediately after the Act was passed, KPMG was invited to undertake a thorough review of immigration procedures and in 1994 it made recommendations. Many of them are part of the legislation before us today.

Although Ministers in this House and in the other place have not referred to the fact, it is interesting that a great deal has been going on within the European Union about immigration and asylum policy. I was interested that in referring to the specific phrases, "manifestly unfounded" and "in general no serious risk of persecution", the Minister did not say that those phrases are not found for the first time in the Bill. They are found in resolutions of the European Union which were signed by the present and previous Home Secretaries as members of the Justice and Home Affairs Councils in recent years. The whole concept of a white list does not come from the British Government but from Steering Group 1 (Asylum and Immigration) which reports to the K4 Committee which is responsible for co-ordination of policy within the Third Pillar on Justice and Home Affairs. That resulted in the European Union resolution on "Manifestly Unfounded Applications for Asylum", and another European Union conclusion on "Countries in which there is generally no serious risk of persecution". The resolution and conclusion were signed by Mr. Kenneth Clarke as Home Secretary at the Justice and Home Affairs Council in London in December 1992.

Clause 3 concerns the concept of a safe country. We find that there is a European resolution on "Minimum Guarantees for Asylum Procedures". That was signed by the present Home Secretary at the Justice and Home Affairs Council in Luxembourg in June 1995. The Home Secretary said to the Conservative Party conference last year that immigration policy would be made in Britain not in Brussels. That is only half true because one of the European meetings took place in London. The truth is that despite their protestations to the contrary the Government have ceded their control of asylum policy to the European Union Council of Ministers. They have done so without any reference to

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Parliament, any debate in Parliament, or any approval by Parliament. The first time that it comes before your Lordships is in the Bill and it comes without any recognition of the European origin of Clauses 1 to 3.

The second general point that I wish to make before I deal with individual clauses concerns what is now called by the Minister "abusive claims". I do not know whether that phrase is any better than the suggestion which the Home Secretary made when he called them all "bogus claims". I suppose that to a tiny extent it is less abusive than using the word "bogus", but it is still not true. The basic reason our asylum procedures do not work and why so many people apply for asylum is not that the claims are abusive or bogus but because of the delays that still exist. That is fundamentally the reason for the large numbers. The Minister gave figures, carefully selecting the years she chose to quote, for the rise in applications and in the number of determinations. When she mentioned determinations in the past two years she did not record the fact that the number had decreased from the two previous years.

The primary reason within our control for the large number of asylum applications is that anyone who applies for asylum knows that on average there will be a nine-month delay in determining the application. Then, if an appeal is made, there will be a further four-month delay in determining the appeal. It means that during that period the applicant has the right to remain in the country. Instead of tackling the real cause--the delay--the Bill seeks to penalise those who take advantage of it. That is what is happening with the Bill. The claims are called abusive and it is made more difficult for them to succeed but the real cause of delay in dealing with applications is not tackled at all in the Bill. The Minister gave figures for the rise in the number of staff since 1988. It is clear that the increase is not enough.

A third and final general point before I turn to the detail of the Bill concerns the use of the word "immigrant". I remind your Lordships that the word "immigrant" is defined in Clause 12 as,


    "a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)".
That means that we have a new classification of resident in the country: someone who is a perfectly legal resident who has been given the right to remain, who is able to work, who pays taxes, who may--if he comes from a Commonwealth country--also be allowed to vote. He is now described for the purpose of legislation as an "immigrant".

When we consider Clauses 8, 9 and 10 in detail we see that they have serious effects on the civil rights and the right to social security benefits to which a person, if he is an illegal immigrant, will have contributed. So far as I can see, a new category of second-class citizen is created in this country. I believe that that is neither necessary nor in any way acceptable.

The Commission for Racial Equality says that 25 per cent. of people from ethnic minorities resident in Britain will fall within the category of "immigrant" under Clause 12. We cannot allow that to happen. We cannot have second-class citizens in our country.

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I turn to the individual clauses. I shall have to refer to almost all of them in turn, for which I apologise. Clause 1 is the worst drafted and worst presented clause I have ever seen in legislation. It rewrites paragraph 5 of Schedule 2 to the 1993 Act. It does so, not by saying, "Paragraph 5 shall not have effect, but in its place there shall be a new paragraph which gives effect to the intentions of Clause 1". No. It takes each little bit and changes wording here and there. Of the six sub-paragraphs, it takes out two, seriously amends three and leaves only one unimportant one. As a result, it is virtually impossible to comprehend. Why cannot the Government just take out the paragraph and replace it by what they mean to say. This invites more work from the Law Commission when it comes to consolidate immigration legislation.

I have referred to the phrase,


    "in general no serious risk of persecution",
and I have talked about its origin. But let us think about the meaning of those words. The phrase defines persecution by a country as a whole rather than an individual case. That is not in conformity with the 1951 convention. The convention states specifically that it is the individual who has to be taken into account. The phrase used is,


    "a well founded fear of persecution".
Indeed, Section 2 of the 1993 Act states that nothing in the immigration rules--that includes the rules that will no doubt be changed as a result of this Bill--shall have precedence over the 1951 convention. That is a very valuable precaution. I seriously wonder whether this Bill does not break the provisions of Section 2 of the 1993 Act.

So we are moving from a judgment about an individual case of persecution to one about what happens in a country in general. In Nazi Germany it could not be said that there was in general no well founded fear of persecution. There was a well founded fear of persecution for Jews, homosexuals, gypsies and so on, but not for other people. Would Nazi Germany have achieved the white list on the definition we have been given? If there had been a high number of applications, it would have.

Let us look at the list of seven countries that the Minister named, although I notice she did not name the other three--Ethiopia, Kenya and Tanzania, given in a leaked memorandum in the Guardian last month. It will be interesting if the Minister chooses to deny it, because it will make life difficult for her when they have to be added. There were 115 successful applications from India, Pakistan, Romania and Ghana. Those applications, which have been found successful even under our tough rules on asylum, would no longer have the same consideration or right of appeal as would have been provided before this Bill.

The whole business of "fast track" appeals in which five days are allowed for a case to be presented, regardless of difficulties in finding interpreters or getting documentation, is an open invitation to something that has already started; namely, the tendency for there to be a greater requirement for judicial review. I suggest that that will be a greater expense rather than

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a lesser expense. It will cost more in legal aid and it will extend judicial review, which ought not to be extended if Parliament can possibly avoid it.

The Delegated Powers Scrutiny Committee said that there should be affirmative resolution on the original list. We agree, and I have no doubt that the Government, as usual, will conform to it. But surely there should be affirmative resolution also on additions to the list. There does not need to be any parliamentary procedure for removals from the list, but additions to the list ought to be subject to the same affirmative resolution. We shall be tabling amendments to secure that. Clause 1 has so many defects, not just in drafting, but in purpose, that it will need the most serious attention.

Clauses 2 and 3, the "safe country" clauses, go very much wider than the white list. In 1994, Amnesty International carried out a survey of 60 fast track cases, of which 25 per cent. went to judicial review and 75 per cent. were referred back to the Secretary of State. The Minister said, and repeated today, that this applies to countries in the European Union, to member states. It does. But it also applies to those designated in an order. And there is no suggestion of parliamentary approval for the order. The provision that it should be member states has no security whatever. It could be changed by the Secretary of State of his own volition.

In the nine months between November 1994 and August 1995, the special adjudicators declared EU countries unsafe in 199 cases, according to the United Nations High Commissioner for Refugees. Under these clauses, in-country appeals, of which, in the past, 40 per cent. were successful when they were appeals against a designation certificate by the Secretary of State as to a safe third country, will be replaced by appeals from abroad. The question that has to be asked is whether that is in conformity with the European Convention on Human Rights. Is it in conformity with Article 13? Is a right of appeal that can be exercised only from outside the country what the European convention calls "an effective remedy"? Here again, the Delegated Powers Scrutiny Committee called for affirmative resolution procedures, and we shall support that. But the whole principle of in-country appeals needs to be protected.

We certainly agree with the objectives of Clause 4 on deception. Also, it is better since the words "by him" were added. I make only a minor comment. Deception could lead to criminal prosecution. We should consider whether or not the PACE rules, which would involve the taping of interviews by immigration officers, ought not to be applied in those circumstances.

Again, the objectives of Clause 5 are sound. If they are to deal with racketeering, we support them. However, the clause seems to be very seriously flawed. It seems still to include those who are paid to give entirely honourable advice to immigrants, such as lawyers, paid airline staff and so on. I seriously wonder why the Government rejected amendments, including that from one of their own Back-Benchers, Mr. Niranjan Deva, seeking the regulation of immigration advisers. Perhaps some such regulation

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should be under the control of the Lord Chancellor, but it is needed and this clause will not be effective until it is achieved.

Clause 7 refers to the arrest and search powers in immigration cases. It makes them comparable to the powers under "a serious arrestable offence". A serious arrestable offence is treason, murder, manslaughter, rape or kidnapping, an offence that attracts a life sentence or 15 years. Is the power provided in the clause really the appropriate level of investigative power of forcible entry? It is not even "reasonable" force. Would it not allow forcible entry into the homes of friends, family, employers, schools or places of worship? I ask those questions with the intention of tabling at least probing amendments.

The Minister gave some detail of Clause 8, the employment clause. This is the first clause where the word "immigrant" appears. Apart from very bad drafting, including a sort of Richard Scott type double negative in subsections (1) and (2), it is true that an immigrant for the purposes of this clause excludes one who,


    "has been granted leave to enter or remain"
under Clause 8(2)(a).

If that can be done in Clause 8, why is it not done in Clauses 9 and 10, which simply state that an immigrant who loses housing benefit or child benefit is, within the meaning of Clause 12, either as in Clause 9,


    "of a class specified in an order by the Secretary of State",
or in Clause 10,


    "unless he satisfies prescribed conditions".

I am not very happy about the wording of Clause 8. I feel that employers will find it very difficult to understand. Surely, the provisions in Clauses 9 and 10, which the Minister of State in another place said did not mean what they appeared to say on the face of the Bill, are entirely unsatisfactory. I do not have time to go into the objections in detail. The Federation of Small Businesses has said it all about whether it is the job of an employer to check immigration status. In practice, apart from the effect on race relations, I do not think the measure will work. It does not cover the self-employed, freelance workers or home workers. It will lead to an increase in the black economy. Those marginal employers who are most likely to employ illegal immigrants and who already break the law on tax and insurance will break this law too.

Because of the shortness of time, we can skip over Clause 9. It will be repealed in the 1996 Housing Bill which is before another place. It does not deserve our serious attention. The Government are wrapped in contradiction. They keep saying that this is done to save money but they have now had to admit that they will pay 80 per cent. of the additional costs incurred by local authorities. The benefit bill, which is claimed as £200 million, would only have been £30 million if the 1993 deadlines had been met. Again, child benefit is the reverse of common sense and economy. Benefits cost £100 a week at most. The cost of a child in care resulting from this measure would be £870 a week.

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The Bill is defective. It does not address the real issues of asylum. We wish to see asylum claims properly dealt with in accordance with international law. We wish to see them justly dealt with and genuinely abusive claims dismissed. We wish to see asylum restricted to those with well-founded fears of persecution. This Government attack the applicants rather than their own procedures. We do not accept the withdrawal of benefit from those who live in this country. We believe that that is profoundly uncivilised. Do we want to be like Italy, which has withdrawn benefits and as a result has squatter camps, which are centres of crime, around some of its major cities? Is that the kind of result we want?

We must look again at whether our immigration laws are effective. We have one of the highest levels in Europe for detention of applicants. Why is that so? Is there not some way to reduce that expensive and cruel form of punishment? It is indeed punishment. As I said, we need to look again at the whole of the provisions for trafficking. We need to concentrate on those traffickers who encourage illegal immigration. We must also make sure that the legislation does not affect genuine advisers.

I do not have time to deal with the problem of unaccompanied children. That was supposed to have been dealt with by the 1993 Act. Since that Act, 50 children have been held in detention in contravention of international conventions to which we subscribe. We need to provide specifically for the victims of torture, as did Mr. David Alton in a well argued amendment in another place. Finally, we need to take off the face of the Bill the word "immigrant" as defined in Clause 12.

I said at the beginning that the Bill was full of poison. That implies intent and I do not wish so to imply. For the purposes of our consideration of the Bill at Committee and Report stages, I prefer to think of the Government as stumbling rather than poisonous. That is the spirit in which we will seek to make major changes to the Bill.


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