Clause 62 - Grounds of appeal
Nationality, Immigration and Asylum Bill
12:15 pm
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
I beg to move Government amendment No. 342, in page 34, line 20, leave out paragraph (d) and insert—
'(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to take Government amendments Nos. 343 and 356.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
The clause is a key part of our one-appeal philosophy and lists all the grounds for an appeal under clause 60. An appeal can be lodged on one or more grounds but all the grounds must come within those listed. The grounds are listed in different places in part 4 and schedule 4 of the 1999 Act but are brought together for simplicity. They refer specifically to human rights, asylum, European Economic Area obligations and race discrimination. The appeals documentation sent to the subject of the adverse decision will require him to lodge the grounds that apply to his case and, crucially, warn him that if he fails to lodge any relevant grounds at a later application, he may not attract a right of appeal if refused. Any grounds put forward that were not put forward prior to the decision, for example a human rights claim that the decision is contrary to the person's human rights, will be addressed in the one-appeal process.
Government amendments Nos. 342, 343 and 356 are technical amendments. Amendment No. 342 includes the ground that the appeal may be based on a claim that the decision breaches the applicant's rights under the Community treaties in respect of entry and residence in the UK. Those rights are described in the Immigration (European Economic Area) Regulations 2000. The amendment is necessary to preserve existing appeal rights. Government amendment No. 343 defines the criteria for those who can benefit from the Community treaties in respect of entry and residence in the UK, which is in line with earlier definitions.
Clause 71 defines which appeals are suspensive—that is to say, they may be exercised in the United Kingdom, as in the case of European Economic Area nationals and their family members who may not be removed while an appeal arising from an immigration decision made under clause 60 is pending. Amendment No. 356 permits EEA nationals and their family members to appeal in the United Kingdom against any immigration refusal made while the applicant is in the UK, which preserves existing appeal rights.
These are technical amendments, which will clarify the position and preserve existing appeal rights, and I hope that hon. Members will accept them.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
Amendment No. 342 would change the wording in the clause as drafted, which refers to the Community treaties and UK obligations, to one that defines the person as having to be an EEA national or a member of that person's family. Are we talking about nationals of European Union countries or about the nationals of the old European Free Trade Association countries? Am I right in thinking that slightly different matters relate to the old EFTA country nationals, apart from those from Ireland, which has a different status? Are nationals from those countries covered in the proposal or elsewhere? I ask that question in ignorance; there may be an easy answer to it.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
We are talking about the wider economic area. I did not hear the second part of the hon. Gentleman's question, so perhaps he will repeat it.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
I understand and appreciate that the Minister was talking to a colleague. If we are talking about what used to be called, and perhaps still is, the European Free Trade Association area, which the amendment refers to as the EEA—the European Economic Area—can the Minister tell us whether there is a difference in the Bill between the way in which a Swiss national and a French national would be treated under the system? The latter person is from a country in the European Union and the former is from a country in the wider area but not in the EU. I am trying to discover whether there is a difference in the system and, if so, how it works.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
Briefly, we are talking not about EFTA but about the European Economic Area; there is no difference in the way they are treated.
Amendment agreed to.
Mr Humfrey Malins (Woking, Conservative)
I beg to move amendment No. 401, in page 34, line 34, leave out paragraph (b).
Clause 62(1)(b) puts a heavy, and perhaps unfair, burden on the appellant to produce documents before the case is heard. For example, the production of the documents could be in the hands of an overseas authority, not of the person seeking to appeal. One of the objectors to subsection (2) has been the United Nations High Commissioner for Refugees. The UNHCR rightly points out that, although there is a legitimate wish to ensure that asylum seekers who appeal against the decision to send them to another country should be able to show that they will be received there, subsection (2) raises concerns about cases where asylum seekers have been unable to prove which country they came from. People fleeing persecution frequently arrive in the UK without documentation because they have not had the time to collect all their personal belongings.
Paragraphs 196 and 197 of the UNHCR handbook stress that point and state:
''In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents . . . The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.''
Perhaps the subsection should provide a waiver of that requirement or, at the very minimum, the Government could make a commitment that the requirement will not be construed too strictly against the applicant in question.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
The amendment has the support of both Opposition parties. I hope that the Government will be positive towards it. I appreciate that subsection (2) concerns an appeal only on the ground of removal as set out in subsection (1)(h). It suggests that the appellant has a double duty. First, he must specify a country other than the one to which it is proposed to remove him. Secondly, he must submit documentary evidence to the Secretary of State before the appeal is commenced. I know from practical experience that that is nonsense. I assume that the phrase
''before the appeal is commenced''
could be interpreted as being before one submits the appeal application. If it were redrafted, it could say
''before the appeal hearing begins''. That would not be perfect, but it would be better. If that is what the subsection is meant to say it would be helpful to know that, but it does not say that as far as I can see.
The hon. Member for Woking made the case that there all sorts of practical reasons, not least when it is a long time before one appeals and the appeal is heard, why putting the burden on appellants to provide both the country specification as an alternative destination and, subject to the amendment, documentary evidence that shows that they would be allowed to enter, is not practically deliverable. Appellants may have requested the documentary evidence. They may be able to certify that they have requested it. They may have good reasons to believe that it is available but they cannot be certain until they get the documents in their hands.
As Ministers and civil servants know well, in the real world dealing with that international transfer of documents would not be possible within the time scale. Someone who came from Iraq and was willing to go back to another country in the middle east would be very unlikely to get the necessary documents through the embassies in time. That would be much more likely under the timetable for the appeal hearing. The knowledge of a date for an appeal hearing often produces much speedier responses.
Information changes. Later there will be debates about whether the time by which decisions should be made and appeals should be determined is the original date and the circumstances surrounding it or the date of the appeal. We will put in different ways the case that one must allow evidence to be added to up to the date the appeal is heard. Things change: countries that were at war are at peace, and vice versa. It is therefore important to give people flexibility. A Government may change, or elections may be due, and a country that may not be willing to take someone on the day ''the appeal is commenced'' could reasonably allow that by the date on which the appeal is heard. I can think of many countries where that would regularly apply.
I hope that the Government will realise that the amendments are eminently sensible for practical reasons. Subsection (2)(b) is far too restrictive and will preclude justice on many occasions.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
We strongly disagree with the idea that that would be practical, largely because there would be no point in not ensuring that someone would be accepted in a country that he or she nominated. If that person was not going to be accepted, he or she would simply be shuttled backwards and forwards, to the benefit of no one. The immigration service would usually be willing to remove someone to another country if that person so wished and if it were physically possible. At the same time, it is important that the service knows that the authorities in that country would be content to accept that person.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
Will the Minister put on record how long an appellant has between a decision to remove to a particular destination and an application for appeal?
I understand that the period is no more than four weeks.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
I understand that the period is 10 days.
On the need to produce documentation, we strongly believe that if a person objects to removal to a certain place, it is not enough for that person to say that he or she wishes to go somewhere else. The adjudicator would need proper evidence of a person's acceptability in another country. Certain people coming to the United Kingdom from elsewhere would not be admitted without a visa. It is only right, therefore, that the evidence should be documentary proof of acceptability. Without that proof, an appeal should not proceed. If we allowed appeals to proceed without documentary evidence, there would be no point in having the appeal, and it would merely clog up the system. We have been trying to avoid pointless appeals, which are a waste of everyone's time, not least the appellant's.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
It would be helpful if the Minister defined ''appeal is commenced''. If a direction for removal was set for an Iraqi to return to Iraq, and they wanted to put a case for them to be sent to Canada where they had a cousin, does she seriously believe that even the efficient Canadian high commission would be able to determine within 10 days whether they should be admitted? If she does, she is not in the real world.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
I should say first that, as I am sure the hon. Gentleman knows, we do not return people to Iraq, although I take his general point.
I am sure that people in such situations will be aware that it is within their rights and ability to put together documentary evidence before the 10-day period to prove that they are acceptable in another country. There is nothing to stop people doing that. I understand the hon. Gentleman's point about the 10-day period, but if people are considering transfer to another country as an option, I am sure that they will be aware of the possibilities at the end of the appeals process. If they are thinking about saying that they want to go to another country, there is nothing to stop them trying to obtain evidence before then.
However, it is impractical to suggest having appeals in which no evidence says that if a person were put on a plane to a different country, they would be allowed in and not simply returned. We require the evidence, because otherwise there is no point in making the arrangements that must be gone through to carry out the removals process.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
There is nothing between us in half of what the Minister says. When the appeal is heard, there must be evidence before the appellate authority that another country will take person X. The question is by what date they must produce the evidence. Surely it will be sufficient to produce the evidence when the appeal starts to be heard, or perhaps the previous working day, so what does the phrase ''the appeal is commenced'' mean?
If someone was concentrating on claiming asylum here, and then heard today that they were to be turned
down, they would be able to address where they might go only now. It is not realistic for individuals to think about where they might go if their application to stay here fails. They want to stay here, and even if they wanted to go somewhere else, getting their act together with most embassies and high commissioners in the world in 10 days is impossible. In practice, the clause will mean that except in the most exceptional circumstances, people will not have an appeal.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
I can see that we are not going to agree on this point. I must reiterate that we do not want to delay removals because a person says that they are admissible to another country without any evidence to back that up. If they have the evidence, the immigration and nationality directorate will remove them to the country concerned. There is no question about that. If the documentary evidence exists to prove that they will be accepted, a move will go ahead. There is no reason why it should be opposed, but the evidence must be available to us.
I can see why the hon. Member for Southwark, North and Bermondsey is concerned and I understand his points about gathering evidence together. However, we need to set up a system that enables us to ensure that nothing frustrates the process when removals have been decided.
In doing so, we must consider the most effective way of confirming that it is not a problem if someone has a country to go to other than the one that we indicated. However, we need evidence, which we believe it is possible to produce. We can be certain that someone will be accepted and not waste flights only if we have that evidence. I hope that that is reassuring.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
I have said many times that I am unconvinced. If the Minister wants me to, I will write to six embassies or high commissions, chosen at random and agreed with her, and ask them how long it takes them on average to determine an application to come to their country? All my experience indicates that none of them would be likely to state that they could definitely do so within 10 days. The documents are often in another place, such as with the Home Office, and it is a nightmare to retrieve them. The Home Office loses them half the time. I regularly receive apologies from it for having lost passports.
Before the Minister concludes her remarks, will she tell us where we can find the definition of ''appeal is commenced''? The position is improved if it is defined in the Bill as being on the day on which the appeal hearing starts. However, it is surreal politics if it means the day that the appeal is lodged. I pray that the Government will see the nonsense of the argument. This is not real-world stuff, and I ask them to reflect on it before Report, where we will want to pursue it, and before it passes to the House of Lords, where I hope that sanity will prevail even if it does not in this place.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
On one of the hon. Gentleman's earlier points, subsection (1)(h) and subsection (2), when read together, make it clear that the asylum seeker, or appellant, will know at the start of the
process that there is the possibility of removal to a country at the end of that process. That is part of the idea behind bringing everything together in one process, so that all those things are made clear from the beginning. Someone cannot decide at the last minute to find evidence of another country that they would like to go to. The hon. Gentleman used the example of Iraq, with which there are obvious difficulties, but I understand the point that he was making. It is important to clarify again the purpose of the appeal process. It is not to find someone somewhere else to go, but to propose a place where the asylum seeker knows he can go. That is why it is known from the beginning that that alternative could be proposed at the end of the process.
Mr Neil Gerrard (Walthamstow, Labour)
Everyone welcomes the general concept of a one-stop appeal with all the cards on the table, so that at the beginning of the process the grounds of the appeal are known. We should not end up with what sometimes happens when poor advisers and solicitors try to find further reasons to appeal after they have lost a case. No doubt they make significant amounts in the process.
I am confused by how this bit of the system will work. The argument seems to be that in order for a person to get an appeal off the ground, he must be able to go to the Home Office, specify an alternative destination and show proof that the destination would accept him. An appeal would almost certainly never be heard on those grounds. If the Home Office intended to remove a person to a specific country and that person said, ''No, I don't want to go there, but I have documentary evidence from a different country that will accept me'', what would be the point of the appeal? Surely the Home Office would say, ''Fine, you can go to that alternative country. We will remove you there.'' It seems to be a tautologous process in which we go around in a circle. If a person were able to lodge an appeal and say, ''I believe I could go to this alternative country'', he would be expected to produce evidence at the appeal that the country would take him, and if he could not do so, inexorably the case would be lost.
Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)
A further consideration is whether any other country would consider an individual's papers while the process was going through in the United Kingdom. We should consider the problem the other way round. If an individual had his asylum claim processed in Canada and still had legal recourse, I would not expect the United Kingdom authorities even to look at his paperwork until the process in Canada had been completed. It is correct to suggest that the 10-day timescale is a problem. An individual who was looking for a route to Canada would not be at the top of the Canadian authority's priority list while he was in what was deemed to be a safe country—the UK.
Alternative countries will not be interested in prioritising any claim for an individual who is in the UK. That is a major difficulty, and such an individual would have to start from scratch at the beginning of the 10-day period and would be unlikely to complete the process.
Mr Humfrey Malins (Woking, Conservative)
The debate has been interesting, although I still think that the burden on the applicant is high and heavy.
There is an issue of language. I have been thinking about the phrase
''before the appeal is commenced''
and I have been trying to decide its meaning. I have tried to think of another word for ''commenced'', which is not a word that you or I, Mr. Hurst, use in our normal day-to-day language. Indeed, I challenge any member of the Committee to raise intervene if they have ever used the word ''commenced'' in their normal day-to-day language. I have not, although I have used the words ''begins'' and ''starts'' quite often.
Let us examine what ''before the appeal begins'' might mean. Assuming that I am an appellant in a court case and someone rings to ask whether the appeal has begun, and I say, ''No, it starts or begins on Tuesday, though I lodged the appeal a fortnight or a month ago.'' What does it mean? Is the appeal commenced—the more I use that word, the uglier it becomes—on the day that it is lodged, or on the first day that the appeal starts? It is an important difference.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
Perhaps I can clarify the matter.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
The hon. Gentleman was right when he referred to the appeal being lodged.
Mr Humfrey Malins (Woking, Conservative)
The hon. Gentleman has been trying to extract that fact from the Minister for the past quarter of an hour. She might consider redrafting the provision on Report, as it might read better if it said, ''submits to the Secretary of State before the appeal is lodged''.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
Except that that is not what we want.
Mr Humfrey Malins (Woking, Conservative)
At least we would know where we were. I was completely confused until a few moments ago. I look at the clock and realise that we have only five minutes before we break for lunch. The amendment raises a serious issue. The hon. Gentleman was right in saying that it is the worst case scenario for the appellant. It is wholly unrealistic. It might be a different story if it referred to the day on which the appeal began. We flagged up the issue, and although I do not mean it unkindly, the Minister has not responded adequately. However, I shall not press
for a Division. We shall return to the issue again. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 343, in page 34, line 35, at end insert—
'( ) In subsection (1)(d) ''EEA national'' means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).'.—[Ms Rosie Winterton.]
Question proposed, That the clause, as amended, stand part of the Bill.
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
In the light of our debate a few minutes ago, I hope that the Government will reflect further on the clause. We shall not seek to divide the Committee, but we regard the last part of the clause as unsatisfactory. I would be happy to speak to Ministers about it before Report—I realise how little working time is available before then. I hope that the Home Office will urgently consider tabling an amendment that would deal with the nonsense and satisfy myself and the hon. Member for Woking.
Mr Humfrey Malins (Woking, Conservative)
The hon. Gentleman refers to how little working time is available between now and Report. Has he heard the same rumour that I have—that Report stage is proposed for the Wednesday after our return on 10 June?
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
I have heard that, but it is not confirmed. It would make improving the clause difficult. If we finish the Committee stage this evening, have three working days before the spring break and Report stage is planned for two days after our return, it will be difficult for the Government to respond to debates. The Opposition parties will be able to table amendments. People from outside with an interest in these matters will be able to read the Hansard report of today's proceedings and reflect on them, but contacting the Government and Opposition will be impracticable. Ministers should discuss with their business managers and with the hon. Member for Stirling (Mrs. McGuire) how best to ensure practicable arrangements. She will doubtless do her best to accommodate the Opposition, as she so often does.
Question put and agreed to.
Clause 62, as amended, ordered to stand part of the Bill.
It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Four o'clock.