Clause 16 - Asylum-seeker: definition
Nationality, Immigration and Asylum Bill
10:15 am
Mr Humfrey Malins (Woking, Conservative)
I beg to move amendment No. 130, in page 9, line 39, leave out paragraph (c).
Mr Eric Illsley (Barnsley Central, Labour)
With this it will be convenient to consider the following amendments: No. 131, in page 10, line 4, after '18', insert—
'for whom he is the parent or guardian'.
No. 172, in page 10, line 5, at end insert—
'or
(c) it is not practicable for him to return to any other country.'.
Mr Humfrey Malins (Woking, Conservative)
I will be very brief on the amendments, which are drafting points.
Amendment No. 130 is designed to delete clause 16(1)(c), which states that a person is an asylum seeker if he is 18, a claim has been made and the Secretary of State has recorded it. The point is simple. In my view, the claim for asylum is made when it is made, not when it is recorded or filed away by the Home Office. Given the propensity of the Home Office not to act immediately on the making of an asylum claim it seems that a person is an asylum seeker if he is an 18-year-old and has made an asylum claim at a designated place. To say that he is not an asylum seeker until the Secretary of State has recorded the claim is to give the Secretary of State ages and ages to file the claim. After all, in most other matters in life, one becomes a claimant when one makes the claim;
one does not have to wait until the claim has been recorded. It is a drafting point, and I hope that the Minister will deal with it by accepting the amendment.
Amendment No. 131 was suggested to me by a most respected NGO, the Immigration Advisory Service. It is an anti-trafficking and anti-child abuse proposal that is designed to ensure that minors not under social services supervision are kept only in the company and care of people who are genuinely responsible for their best interests.
My amendments are minor, and I hope that the Government will take them on board.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
It is obvious that I support amendment No. 130. I hope that the Minister will accept it. She has said before that papers can get stuck in the post, and it is nonsense that an application should have to wait until it is recorded. There are rules for determining when a claim is made, and they need to be made even more specific.
I am sympathetic to amendment No. 131. The hon. Member for Woking is well motivated, and I will be interested to hear what the Minister has to say.
Amendment No. 172 has its origin in the Immigration Law Practitioners Association. Sometimes, when asylum applications are been determined negatively, some categories of people—the Minister hinted at them earlier—are not able to leave the United Kingdom immediately. Perhaps things have changed in their country, and it is understandable that they cannot go back there. It is important to ensure that such people receive support; they should not suddenly be left destitute when, through no fault of theirs, they are unable to return or to be sent back where they come from—or even somewhere else.
I hope that the Parliamentary Secretary, Lord Chancellor's Department will respond positively. I am happy to work with her on the drafting if a different form of words is needed. I hope that the Government will accept the point.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
I support amendments Nos. 130 and 131, not least because the latter is anti-trafficking and anti-child abuse. I hope that the Parliamentary Secretary will comment on that additional safeguard.
It seems to me that there has been a bit of sloppiness in the drafting of clause 16. Even if the Parliamentary Secretary is unable to accept amendment No. 130, I hope that she will consider inserting the word ''or'' after paragraph (b), and then adding, under paragraph (c), that the Secretary of State has recorded ''a'' claim; it would be an and/or provision which could also act as a vehicle for tidying up the drafting. One would hope that if the hon. Lady is unable to accept these perfectly reasonable amendments, she will come forward at a later stage with amendments to tidy up the drafting.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
Perhaps it would help if I set out some background to the clause, which defines an asylum seeker for the purposes of deciding who may be placed in an accommodation centre. Such a person must be at least 18 years old and have made a
claim under the refugee convention or article 3 of the European convention on human rights. That claim must have been recorded by the Secretary of State but not yet determined. A person whose household contains a dependent child under 18 will, unless that person is granted leave to enter or remain in the United Kingdom, continue to be treated as an asylum seeker while he and the child remain in the UK. He will continue to be eligible to reside in an accommodation centre.
I hope that I can reassure hon. Members, given the points that they made. Amendments Nos. 130 and 131 affect the definition of an asylum seeker for the purposes of support in accommodation centres. Provisions on the recording of the claim have been included because we want to ensure more administrative certainty, to avoid confusion and disagreement about whether a claim has been made. They differ from previous provisions on the subject, because they state that the claim would be recorded
''at a place designated by the Secretary of State''.
The hon. Member for Woking asked about the relevant issue being whether the claim had been made or recorded. The recording is purely administrative, and there should be no delay in it. For example, there have been difficulties with postal applications, for which the recording has been subject to some dispute. One reason for the provisions is to clarify that. Confusion needs to be removed, as the recording is relevant to eligibility for support under part 2 of the Bill. It is important to have administrative certainty on when someone receives support in an accommodation centre. We must be clear that a claim has been recorded, so that eligibility for support is clear.
Mr Humfrey Malins (Woking, Conservative)
Yes, but what examples can the hon. Lady give of asylum applications having been made and there then being huge gaps before they are recorded or filed? My understanding is that there have been dozens or hundreds during the past year or two. What safeguard has the applicant to cope with that?
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
The main difficulty with applications that have been made, or that asylum seekers have said have been made, then being recorded has occurred in postal applications. Approximately 500 postal applications are made each month. Our aim, especially with regard to people supported in accommodation centres, is to ensure that all new applicants are screened when they make their application. That means that the recording—it can be a manual recording or an entry on a database—would be done extremely quickly. There should be no delay between the application being made and its being recorded. Because of the insertion that it must be made at a designated place, it should be done there and then. It would be done person-to-person, face-to-face. That means that we can be clear that a claim has been recorded, and the person will then be eligible for support.
Mr Humfrey Malins (Woking, Conservative)
So, from the time when the Bill becomes law, a person will be an asylum seeker if, among other things, he makes a claim for asylum at a
designated place, in person. Does that mean that a claim is not an application unless it is made in person at a designated place, and it is goodbye to postal applications? If that is the case, the claim should become an asylum application as soon as it is made.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
Exactly. That is my point. Because the claim is recorded at a designated place, it will be possible for that person to be eligible for support in the accommodation centre.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
Perhaps I was not listening, but I cannot see how that is compatible with the convention. If someone smuggles himself into this country, to Leicester or Southwark, for example, and is advised to seek asylum, and either writes a letter to the Home Office or a letter is sent on his behalf or delivered by hand, surely that is a valid asylum application. In no country that I am aware of do people have to present themselves formally at a statutory place for their applications to be considered.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
We are talking about eligibility for support, with particular regard to accommodation centres. At the same time as making the application at a designated place, an applicant will receive a registration card, on which it is verified that he or she is an asylum seeker. The hon. Member for Woking raised the issue of postal applications. In the past, there have been fraudulent or multiple postal applications, and we want to ensure that, as part of the process, we keep a proper record of applications and of where people move on to, whether to an accommodation centre or the dispersal systems. We want to ensure that, from the beginning, there is no administrative confusion and no unnecessary delay built into the system. The surest way to do that is to state that applications may be made at designated places.
The hon. Member for Southwark, North and Bermondsey is, perhaps, referring to the problem that would arise if there were insufficient designated places for people to report to and make their applications. I can reassure him on that because we will certainly ensure that there are enough places for claims to be made. I cannot see why that would be incompatible with the 1951 convention.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
Let me give another example. Someone may come into this country on a student or visitor's visa, and be in Shetland, the outer Hebrides, Anglesey or Londonderry—it could be anywhere. Circumstances may change in that person's home country and he or she may need to make an asylum application. It cannot be sensible bureaucratically to have asylum claim centres in Lerwick and Stornaway. It must be better for an individual to go to a local advice centre, citizens advice bureau, solicitor, friend or priest who can write a letter to the Home Office or to the immigration and nationality directorate on that person's behalf. Surely we are not going down the road of establishing centres. If we are, and they can be everywhere, that is fine, but it would cost a fortune.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
I do not accept what the hon. Gentleman says. Most people will claim asylum immediately on arrival in the UK. Those who do not will have legally entered the country in some other
capacity or have entered illegally. In the example that he gives, those who have entered legally are unlikely to be regarded as destitute, because they would have had support in order to be granted leave in the first place—they might have come under an employment category or have a sponsor.
Illegal entrants are, obviously, expected to bring themselves to the attention of the authorities as quickly as possible. If they do, by presenting themselves at a reporting centre to make a claim, suitable arrangements will be made for their application to be made in advance of a claim for support and accommodation from NASS. We cannot provide support for people who do not bring themselves to our attention. It is important to have a system that, as far as possible, allows us to record claims as clearly as we can from the beginning of the process.
Mr Humfrey Malins (Woking, Conservative)
Clearly, the Parliamentary Secretary and her officials have done a great deal of thinking about the places that will be designated for making a claim. Given the amount of work that must have gone into that, can she say roughly how many there will be in the United Kingdom—10, 50, 500? That must have been discussed, and I should be most grateful for an answer.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
At the moment, the majority of locations that would be designated as places for people to make claims—the Croydon asylum screening unit, any port or any airport—are those at which people would arrive from abroad. It is difficult to give an exact number. However, I assure the hon. Gentleman that we shall look beyond those examples and will consider local reporting centres, local enforcement offices, casework centres and so on, so that we provide the most accessible places possible for people to make their claims. It is an important part of any strategy to ensure that people can find support when they want it, and that their claims can be made and recorded quickly and easily—either manually on a database—making them eligible for support. That will avoid much of the confusion that has arisen.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
The more we explore what seemed to be a simple definition of asylum seeker, the more we reveal the layers of the onion. The Parliamentary Secretary now suggests that there will be a vast array of reception points for asylum applications. At this stage, I would like to know the answer to the question about numbers asked by my hon. Friend the Member for Woking, and what the cost and organisational implications are. We appear to be entering a phase of increasing bureaucracy and complexity.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
Quite the opposite is the case. What causes administrative problems, extra bureaucracy and increased costs is not knowing where people are. It only increases costs if we cannot verify at an early stage, for example, that the people making applications are who they say they are. Having face-to-face interviews is an important part of that.
Claims can be made at existing facilities—we shall not have to create completely new facilities. The
measure will not create greater difficulties for the applicant or for the system, as we are making the system clearer from the word go and minimising any possible fraud. Unfortunately, such fraud is possible under the present system.
Mr Gregory Barker (Bexhill and Battle, Conservative)
In addition to airports and Croydon, which the Parliamentary Secretary mentioned, she referred specifically to local centres. What does local mean—local to where and to whom?
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
I have already said that we would consider using local reporting centres or places in which casework happens. We must look at individual areas and consider what facilities we can make use of. It would not be sensible to determine a particular mileage in an area in advance. We need to consider what is sensible in an area in terms of access for people.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
It is important that we reflect on the matters that we are debating and get them right. We should bear it in mind that the clause relates simply to definition of asylum seekers.
I have two points. First, the Government have not said whether they are getting rid of postal and other forms of applications, and it would be helpful to know whether that was the policy and when that policy was made. Secondly, if there is supposed to be a network of reporting centres for the purposes of registration, why is that not stated in the Bill? Accommodation centres are referred to in the Bill—why not registration centres?
There are two entirely new policies here, in relation to which none of us had any notice. They increase bureaucracy and put an end to what seemed a moderately successful system, with 6,000 people a year putting in applications that were processed by the IND.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
There is nothing sinister in saying that we are making it easier for people to make claims in person. Current everyday practice is that all port applicants and anyone who applies at the asylum screening unit in Croydon go through the process that I have described. We simply want to extend that practice.
There is no doubt that there have been difficulties with postal applications. I hope that hon. Members accept the need to consider those problems, some of which we can remove through the new system. Whether the problems are caused deliberately or not, there have been difficulties with postal applications because people do not get the sort of personal assistance that they would get in a face-to-face interview. That, too, is an important part of the process.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
I am grateful to the Parliamentary Secretary for giving way; she has been most generous. I hope that she does not mind our pressing her, but we have some anxieties about this matter. She told the Committee that she would widen the network of places designated by the Secretary of State to receive claims for asylum. What criteria will be used for the
examinations and what time scale will apply? When will the designated places be fully listed, and how will the information be made available so that people can see it? What are the cost implications and will police stations or local government offices be used? I hope that the hon. Lady will be able to allay my fears that policy is being made on the hoof in an attempt to be generous, but has not been thought through. I want to ensure that parameters are laid down.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
As I indicated earlier, existing facilities will be used. We must weigh the costs associated with the problems of postal applications and the possibility of detrimental effects on the asylum seeker against, on the other hand, fraud, which can be extremely costly. We must also weigh that against the proposal announced in a statement to the House by the Home Secretary on 29 October, that we would expand reporting centres. We do not need primary legislation to do that.
As I said before, we are making a perfectly straightforward attempt to ensure that we know where people are from start to finish, that claims are properly recorded and—this is the point—that we can then process claims more quickly and make support available to asylum seekers. We are simply trying to ensure that our system is improved. The proposal has been thought about extremely carefully and we are confident that it will improve efficiency, reduce any confusion and help to cut down on fraud. There is nothing more than that in what we are trying to do. A proposal has already been announced, and the clause follows it through. Overall, it will lead to greater efficiency and possible savings. It is important to improve the system and the Bill will help to do that.
Let me set out the background to amendment No. 131. Our commitment is to provide support to a person whose household includes a dependant child under 18. That reflects an existing provision in the Immigration and Asylum Act 1999. The aim is to continue to support children who would otherwise need to be supported by the local authority.
I take note of the points made about trafficking, but that is covered in part 7. It is an important issue. Although, in the majority of cases, those involved would be the parents or guardians of children, there may be other situations to consider—for example, when an aunt, uncle or stepchild is involved. The amendment would reduce our ability to define a dependant in secondary legislation. We need some flexibility. I am sure that hon. Members accept that there are different types of relationship, which can be more complex than straightforward ones that involve only a parent or guardian. We do not want to be restricted in that respect.
Amendment No. 172 would require us to continue to offer support to a person whose asylum claim had been determined, but whom it was not practicable to return to another country. It goes without saying that we want to support those who are seeking asylum and are destitute, but once a claim has been determined, they should no longer qualify for such support unless their household includes a dependent child under 18. Those who are granted refugee status will qualify for mainstream benefits but in general we will expect
people who are refused and who have no basis to stay to leave.
That said, there are obvious difficulties in returning people to certain territories, and I think that that is what the hon. Member for Southwark, North and Bermondsey is getting at. A practical example would be someone from northern Iraq, who was unable to return to that part of the world. If a person has demonstrated that there is a genuine reason why they cannot leave the UK and that is through no fault of their own, or that a judicial challenge against a decision is not without merit, they may make an application under section 4 of the Immigration and Asylum Act 1999. In doing so, they would have to show that they could get no other support from friends, relatives or charities. It is right to offer support under that section, but it is different from the support that they would have been offered previously.
If the hon. Gentleman is also trying to discover whether that support would continue to be provided in accommodation centres, I refer him to clause 21(4), which says that people in the centres can be eligible for section 4 support if that is deemed necessary. I hope that that provides some reassurance and that the amendment will be withdrawn.
Mr Humfrey Malins (Woking, Conservative)
This has been an intriguing debate. It began with my saying that it would be brief, because I wanted to put only a couple of small drafting amendments to the Minister. Lo and behold, as the debate developed, it suddenly became clear that what appeared to my hon. Friends, the hon. Member for Southwark, North and Bermondsey and I to be two major policy issues were being revealed.
We have been told in the clearest possible terms that from now on—or perhaps from next week, or from the date when the Bill comes into force—all asylum applications must be made in person. Furthermore, we have been told that they must be made at
''a place designated by the Secretary of State'',
but we do not know where those places are. If I were a Minister—I am not one yet, and the way I am going I might never be one—I would ask the Whip to move that the Committee should suspend for a fortnight so that the proposals could be set out in clauses that could be properly debated by the Committee. However, were I the Whip, I would tell the Minister, ''No, I won't. Let's proceed.'' That is how this place works
There is potentially a much longer discussion to be had about some of the matters that have been raised during the debate by the Parliamentary Secretary. They relate to the proposed centres and the way in which an application is to be made in future. My hon. Friend the Member for Bexhill and Battle (Mr. Barker) asked the Parliamentary Secretary to define what ''local'' meant, to determine how many centres there would be, but the answer was that ''it might mean local'', so we are none the wiser.
Life is full of surprises, and I thank the Parliamentary Secretary for her helpful reply about amendment No. 131. I will not press the amendment
to a Division, but we shall return to the more substantive part of the clause in due course.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
I shall not push for a vote either, but we must reflect on the issues arising from the debate. Unless I missed it, I did not hear the Parliamentary Secretary say that there will be no postal applications. Given that there are 6,000 at the moment, I assume that postal applications will continue. If they do, problems in the system mean that the process will need to be changed along the lines set out in the lead amendment so that asylum claims start from the moment the application is made.
The issue is not a big one in my constituency, because Beckett house is close enough to be a local registration centre. However, I do not envisage there being places at which people can see immigration officials and register with the Home Office in every part of the United Kingdom, no matter how small the island or population. That is inconceivable, so keeping postal applications is sensible. The bulk of people apply either at ports of entry, when there is simultaneous application and recording, or in a way that does not have a distance in time between the application and recording. However, we must avoid bureaucracy that means that an asylum seeker who has a perfectly good case is not regarded as having made an application because they have not visited the regional centre. We must protect the way in which applications are made under the convention.
I understand the Parliamentary Secretary's point about clause 21, which gives the cover. I shall look back at the earlier legislation, but the important point is that we agree that there must be facilities for someone who is stuck here and does not have their own resources. If their application has ended but they cannot go home, we must not suddenly say, ''Sorry, but we're not doing anything''. I am sure that there is common intention about that. I will examine the Minister's comments. It may be that they cover the eventualities.
My only concern for the Parliamentary Secretary and her civil servants is that people whose case has ended must clearly and understandably be told that they have the opportunity of another support system and that if they want it, they must apply there and then. It must be unlike housing benefit and council tax benefit applications, in which it is too late for someone to do anything about it if they realise that they have not applied in time. For people without English as a first language and who are unfamiliar with the traditions, there must be a good safeguard to ensure that they know exactly what is needed to keep them supported.
Mr Humfrey Malins (Woking, Conservative)
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Humfrey Malins (Woking, Conservative)
I beg to move amendment No. 132, in page 10, line 13, after '1950', add
'or Article 8 (''right to private life'') of that Convention.'.
This is another sensible amendment that has been suggested to me by the Immigration Advisory Service. It deals with a short but relevant point. There are a small number of article 8 claims based on the right to private life where someone would qualify for exceptional leave to remain if the application were successful. Their need for support is just as great as that of someone whose case is based on article 3 of the 1951 convention. The amendment is as simple as that, and I hope that the Minister will accept it.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
I support the amendment for the same reason, and I hope that the Government will be positive.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
I cannot be as positive as hon. Gentlemen would like, but I am able to give some reassurance.
The definition of an asylum claim includes a claim that removing a person would be contrary to our obligations under article 3 of the European convention on human rights. That makes sense, given the overlap in some cases between a fear of persecution under the refugee convention and the prohibition of torture under article 3. When we assess whether someone can be removed to a particular country, there is a clear link between fear of persecution and subjection to inhuman or degrading treatment as a result.
The right to private life is a different matter, as it does not involve fear of persecution or torture. We therefore do not believe that there is any reason why it should be treated as an asylum claim. If it were, that would considerably widen the number of people who would be considered to qualify for support. The question would also arise why we should not regard all claims made under any article of the ECHR as an asylum claim, which would allow support to be offered. I hope that hon. Members accept that that would be unrealistic, especially in view of the potential cost. However, I assure hon. Members that we would consider someone's rights under the ECHR, including the right to private life, when assessing whether they should be removed from the UK. I hope that the hon. Member for Woking understands why we cannot accept the amendment, and that he will withdraw it.
Mr Humfrey Malins (Woking, Conservative)
I am grateful to the Minister. I am partly, if not wholly, reassured, and I do not wish to press the amendment to a vote. Therefore, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
We must get the clause right, as it is the lynchpin—the definition section—on which the rest of the Bill depends. I hope that we will have a chance to reflect on earlier debates, and agree to any necessary amendments.
Question put and agreed to.
Clause 16 ordered to stand part of the Bill.
Mr Eric Illsley (Barnsley Central, Labour)
Before we discuss clause 17, I should clarify that we will rise at 11.25 am and suspend the
Committee until 2.30 pm. I intend to break at 4.30 pm for 30 minutes.