Immigration, Asylum and Nationality Bill

I start by echoing what my noble friend Lord Dholakia has said about the impropriety of sending this Bill into Grand Committee when there are so many contentious issues to discuss, many of which my noble friend and the noble Earl have mentioned. I understood that it was the practice of the House to send Bills to Grand Committee only when there was very little likelihood of matters arising during Committee on which Members would feel it necessary to divide. In the few minutes of debate that we have had today, I believe that we all understand clearly—if we did not already do so from what has been said in the other place—that this is a highly contentious Bill. I simply cannot understand how it got into the Government’s head to propose that it was sent to the Committee or that it was agreed by anyone in the Opposition. We certainly did not hear about it; the first that I knew about it was when I saw on the Order Paper that we would be dealing with it in Grand Committee. If we get no further than we did in the other place in trying to improve the Bill, we shall have wasted over the next two weeks some 24 hours, while sitting here and speaking about it without having the slightest effect on the final state of the legislation. That would be most regrettable. Noble Lords may think that in future, when the Government propose to send these Bills to Grand Committee, we shall have to establish some mechanism of wider consultation so that people who take an interest in particular issues can have their say about whether these matters are dealt with on the Floor of the House or in Grand Committee. Before I discuss Amendments Nos. 9, 10 and 11, I shall say a few words about matters that were raised by my noble friend Lord Dholakia. Section 82 of the 2002 Act preserved the right of appeal that people always had against an immigration decision, except in the case of decisions that a person’s presence in the United Kingdom was non-conducive to the public good, when that person had been required to leave the UK or was refused leave to come here. In those cases, there has never been a right of appeal, and the person concerned is never even allowed to know what was alleged against him that led to the Secretary of State’s opinion that his presence would be non-conducive to the public good, even though in many cases—such as the US professor, Steven Best, who was barred following a statement at an animal rights rally that activists were justified in digging up people’s graves—it was pretty obvious why the Secretary of State decided to make the order. Best wanted to attend a rally to mark the closure of Darley Oaks Farm in Staffordshire, which had been a target of animal rights extremists for many years. I make no objection to that use of the Secretary of State’s powers under the 1971 Act and, more generally, when people have incited others to commit criminal offences while here, it is reasonable to exclude them or to refuse them a variation of their existing need to remain without an in-country right of appeal. But here we are dealing with a vastly different matter. In Clause 1, the Government propose to remove people’s rights as they have always existed since the dawn of immigration control in 1962 and as were reiterated as recently as the 2002 Act. As the Minister is aware, and as we have heard already, the Joint Committee on Human Rights in its 5th report, published last month, questioned whether the removal or restriction of rights in Clauses 1, 3 and 4 was compatible with Articles 2, 3, and 13 of the ECHR and questioned the violation of the common law right of access to court. After careful analysis it concluded that requiring appeals against variation of leave to be brought out of country was ““likely”” to lead to incompatibilities with Articles 8 and 13 of the ECHR. That was strong language for the JCHR, which, regarding the 2003 Asylum and Immigration (Treatment of Claimants, Etc.) Bill, referred in a number of cases to a significant risk that particular articles of the convention would be breached, whereas, more commonly, the committee simply draws matters to the attention of Parliament without giving its own opinion. Here, by contrast, the committee asserts that the Bill is ““likely”” to lead to incompatibilities. That raises the question of whether the Lord Chancellor, in reaching decisions on compatibility for the purpose of certifying Bills, is taking advice from lawyers who understand the ECHR. The Joint Committee is composed of 12 Members of both Houses, from all parties, including experts such as my noble friend Lord Lester and the noble Lord, Lord Campbell of Alloway, who I am glad to see in his place. They are distinguished experts on human rights. The unanimous opinion of the committee is that these provisions are likely to get us into trouble in Strasbourg—if, indeed, our own courts do not rule against the Government on judicial review. How can the advice given to the Government be so out of line with the opinion of those experts? Do the Government agree that the frequency with which that happens, as underlined here by adding to the JCHR’s previous comments on the proposals for the deprivation of citizenship and right of abode regarding the unilateral narrowing of the definition of a refugee in the Government’s interpretation of Article 1E of the convention, gives rise to dissatisfaction with the quality of the advice being taken by the Lord Chancellor and other Ministers who sign such certificates in relation to Bills? We now have the additional and almost equally weighty advice of the Select Committee on the Constitution, whose letter of December 13 has been quoted. As that letter states, practically everyone except a recognised refugee loses the right to appeal in-country to an immigration judge against refusal to vary leave to enter or remain. The exceptions are to be contained in orders which specify circumstances that are not defined in the Bill itself or the Explanatory Notes, but are, so far, left to the absolute discretion of the Minister of the day. That contradicts the principle, referred to by the Select Committee, originally laid down by the Council on Tribunals, that rights of appeals should be defined in primary, not secondary, legislation. Your Lordships should be under no misapprehension about what the Government are proposing. If we agree to this, we would not only remove the particular rights of students or close family relations, for example, but give the green light to future Governments to modify all and any rights of appeal by secondary legislation on the basis of the precedent that we are now creating. As for the exceptions, the Minister spoke for three quarters on an hour at Second Reading, but the only one she mentioned was that unaccompanied asylum-seeking children would have a separate right of appeal against refusal or curtailment of leave, as has already been announced in another place. It was not clear whether, in ducking the whole question of in-country appeals, their scope and their process, she did so because she did not have the answers or because she was conscious of the time. But if it was the latter, we certainly have not heard from the noble Baroness on the subject during the Recess—a bad sign for the productivity of our work this afternoon when we have nothing to work on. If the Government are determined not to move on any other categories besides persons with humanitarian protection and unaccompanied asylum-seeking minors, we might as well not have bothered with these issues in Committee. However, the Minister said that the Government were only wedded to the idea of an effective one-stop process for appeals and not to the notion that the appeal should be exercised from abroad, and she invited us to come up with an alternative approach that would give the Government what they wanted. I hope that in tabling these amendments we have been successful in doing that. It would be useful if we could get it on the record from the Minister that to a large extent, a one-stop appeal system is already in place. As my noble friend mentioned, there are the provisions of Section 88(2) of the NIA Act 2002, which forbid appeals by persons who do not satisfy particular requirements as to age, nationality or citizenship specified in the rules and who do not have the required documents and so on. Clause 5 adds a new document which has to be produced when required by the rules, a medical certificate or report. So failure to comply with any of these provisions means that the person concerned has no right of appeal. Then there are the provisions of Section 96 of the 2002 Act, which preclude an appeal where the Secretary of State certifies that a person was notified of a right of appeal against the decision in question in connection with another immigration decision, whether or not an appeal was actually brought or determined. Thirdly, there is Section 85 of the 2002 Act, which allows the IAT to treat an appeal as including an appeal against any other decision in respect of which a person may have an appeal right, and to consider any matter constituting a ground of appeal and any statement or evidence arising after the date of the decision. ILPA tells us that the Home Office appeared not to be aware that the IAT already consolidates variation and removal appeals where the person is not within any leave to remain as a result of the refusal, and it cites a particular 2004 case which the Minister may now have had drawn to her attention. I hope so and I hope that she can comment on the misunderstanding that appears to have arisen in the Home Office on this matter. Amendment No. 8 amends the list of immigration decisions in Section 82(2) of the 2002 Act by stating clearly that the Secretary of State can issue a certificate forbidding a second appeal against removal where the person has already lost an appeal against refusal to vary leave to remain. The amendment covers overstayers, family members of overstayers, seamen and aircrews. Since under Clause 11 any person refused an application for variation of leave becomes an overstayer, the amendment is exhaustive, as my noble friend emphasises. The Secretary of State already has the power under Section 88 of the 2002 Act to determine who has any right of appeal, whether in-country or exercisable from overseas, and he or she can also lay down mandatory requirements in the rules, failure to comply resulting in the forfeiture of any appeal right. Amendment No. 8 also allows for the preservation of appeal rights in the few cases where the Secretary of State considers they ought to be allowed and where he may decide to refrain from exercising his Section 96 powers. That idea was raised by my honourable friend the Member for Oxford, West and Abingdon and dealt with not in Committee, where my honourable friend and others would have had a chance to come back with further arguments, but afterwards in a letter, in which the Minister said that the amendment restates existing powers; that because circumstances might have changed between the decision to curtail or refuse leave to extend leave, and the later decision to remove, it was not possible to issue a certificate under Section 96; and he did not want to open the route to judicial review, which certification would afford. If for the sake of argument we concede that our Amendment No. 8 was a restatement of existing powers, we must ask the Minister what statistics she has on the use being made of them. What number of appeals would have been prevented by the full use of the 2002 Act powers in 2004, for example, taking the last calendar year for which figures ought to be available? What additional number does she estimate would have been prevented if the Bill had been in operation? The number of appeals has been rising steeply from 35,000 in 1997 to 108,000 in 2003, but last year it levelled off. Within the total, asylum cases fell sharply between 2003 and 2004 and that was counterbalanced by an increase in entry clearance cases, which is simply a function of the large number of people who wish to come to this country for perfectly legitimate purposes. As regards the gap between refusal and removal, the Minster said at Second Reading that part of the rationale behind the provisions is to allow refusal and curtailment decisions to be made simultaneously. What has been stopping the IND from doing that as soon as the appeal has been lost? Is not the lengthy gap due to the inefficiency of the IND rather than any fault of the appellant? With regard to judicial review, it is of course a theoretical possibility but it would have to be on some matter that could not have been raised earlier, not easy to prove if the decision to remove had been made promptly after the appeal. We say, in any case, that the possibility of judicial review is inherent in the system devised by the Government in Clause 1. Variation decisions may involve consideration of human rights issues and any decision that such a case is clearly unfounded, barring an in-country appeal, could potentially be subject to judicial review, as could any case where an appeal from abroad is not an effective remedy. However, we must be realistic and recognise that the Home Office is not likely to accept our contention that if existing powers had been used more effectively, it might have been unnecessary to consider new legislation. Amendments Nos. 9, 10, 11 and 34 therefore provide for a one-stop appeal covering the decision to refuse a variation of leave and the decision to remove and for existing leave to continue on the same terms and conditions until the appeal is determined. That is our response to the invitation issued by the Minister at Second Reading when she asked us to propose an alternative approach by which we preserve the central principle in the Bill of creating,"““an effective one-stop appeals process that might confer in-country appeal rights on a wider range of cases””.—[Official Report, 6/12/05; col. 578.]" I say in passing that it is not the job of the Opposition or of my party to construct the Government’s legislation. If the Government were willing to consider ways in which a one-stop system could be devised while preserving in-country rights of appeal, they have the resources to do it. There is a whole battery of lawyers in the Home Office who could have come up with a solution more effective than ours—although we believe that our proposals would fully satisfy the Minister’s requirements. The approach in these amendments certainly complies with the conditions in Mr McNulty’s letter to my honourable friend. It is different from the system that he says is not working, even though it was the Home Office’s own idea only three years ago. It deals with the objections that circumstances can change between refusal of leave and decisions to remove, by providing the single right of appeal, and it does not involve certificates which are open to judicial review. When similar amendments were moved in Standing Committee in another place, Mr McNulty said that they were not ““substantive”” without elaborating further, except to say,"““It cannot be right””.—[Official Report, Commons Standing Committee E, 19/12/05; col. 60.]" He evidently did not understand that what is proposed is an appeal at the end of the process against both the refusal of leave and the decision to remove or deport. As I hope the Minister is aware, the Law Society has declared that an appeal mechanism is vital to immigration decision-making as it allows challenges to wrong decisions and encourages the making of consistent initial decisions. It believes that the concern about multiple appeals can be dealt with effectively in the manner we are proposing and that the inadequate safeguards against the criminalisation of persons awaiting appeal in Clause 13 would be unnecessary under this scheme.