At Tuesday's sitting, the Minister helpfully explained the process behind a decision to remove benefits, and the length of time taken to inform families of such a decision. Although I disagree on the principle behind clause 7, the Minister reassured me that the Government are giving a lot of thought to ensuring that safeguards are in place and that individuals will have plenty of time to be informed of the consequences of their decision.
These are probing amendments designed to ascertain the reasoning for allowing only 14 days from the notification of removal of a benefit to the termination of that support. It would be particularly helpful if the Minister could answer some questions about that, and clarify whether 14 days is the standard period allowed from notification to termination. The period of 14 days would apply to the proposed
''fifth class of ineligible person'', but is it different for people in the other classes set out in the Nationality, Immigration and Asylum Act 2002?
The Immigration and Asylum Act 1999 includes the provision that support for failed asylum seekers must be terminated 21 days after receipt of the final decision on the asylum claim. Why is the period 14 days in this Bill? Given that the issue is so sensitive, it is odd that a period of 14 days has been used. I hope that the Minister will explain and clarify why this case is different.
Amendment No. 90 is designed to obtain clarification from the Minister about our concerns that clause 7 allows the Secretary of State to vary the period of 14 days. Would that be a variation below 14 days, or is the intention to allow more than 14 days? We would all hope that the intention is to allow more than 14 days in certain circumstances, and I hope that the Minister will clarify that. If it is not the intention to allow fewer than 14 days, that should be in the Bill. I hope that she will help with those simple questions.
I associate myself with the remarks made by the hon. Member for Winchester (Mr. Oaten). Fourteen days might not be long enough. In many criminal proceedings, the time allowed to register an appeal is longer. As the hon. Gentleman said, to ''vary the period specified'' might be construed as meaning to vary it downwards to an impossibly tight schedule. I hope that the Minister will provide assurances that such a variation would either not be downwards, or would require approval from the House.
I support the spirit of amendment No. 85. The hon. Member for Winchester wants to ensure that the process is not precipitous and that we allow enough time for families to leave voluntarily, or for opportunities to enforce a removal before certification, as we discussed in the previous sitting. I am clear that the purpose of the amendments is to ensure that families have adequate time to leave voluntarily and I have no dispute with that principle. However, we must remember that, in the entire process that I have outlined, the period of 14 days applies only after the Secretary of State has certified that, after many attempts, the family has failed to leave or to co-operate with arrangements to enable them to leave. That makes the situation different from the other circumstances that were outlined.
I can confirm that in other legislation there is a period of 21 days for single people for whom support is withdrawn once appeal rights have been exhausted. I envisage the total process being considerably longer than 21 days. We have agreed to write to inform people formally of a notification by the tribunal that appeals have been exhausted. We have also agreed to write to give them an appointment for an interview. Clearly, we will have to give them notice of that. We have also agreed that, if people continue to fail to turn up or to co-operate, we will issue a third letter warning them that support may be withdrawn, before we finally reach the certification letter, which says, ''I'm sorry, you haven't co-operated.''
Before the 14 days, there will be a period, which we have yet to work out in detail, to allow for three letters and notice of an appointment. I imagine that we are talking about at least another fortnight in that regard, so the period is already more than 21 days.
I apologise for being a little late, Mr. Taylor. I also extend to you the heartiest Leicestershire welcome.
Would not one concern that the hon. Member for Winchester no doubt has about the period in clause 7(1) be mitigated to some extent by adjustments to clause 10? Even if people arrive at a position in which they are certificated as failed asylum seekers, so long as they have been through a proper judicial process and they feel that they have been properly dealt with by a system that they understand and respect, the 14-day period will have a less damaging and hurtful effect than it might otherwise have.
When we reach clause 10, the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Tottenham (Mr. Lammy), will make it clear that the revised arrangements for a single tier of appeal will give people a fair opportunity to state their appeal and will not be a diminution of the opportunity to do so, or the quality of that. Notwithstanding that, hon. Members argue that they want to be sure, in cases involving children, that there is adequate time for families to be clear about the options and some of the consequences and that, if it comes to leaving, which it will do, one way or another, with families in this category, they can do so in a dignified way and make arrangements.
I hope that I have made it clear that the process that we envisage will, before certification, involve a period that, in addition to the 14 days required in legislation, means that the total time exceeds that in legislation at the moment for other groups.
Amendment No. 90 would ensure that there was a minimum of 14 days between receipt of the Secretary of State's decision that support is to be withdrawn and that taking effect. I am happy to state on the record that we have no plans to limit that period. I am wary, however, and it would not be sensible to limit the operation of the clause by saying that it will only ever be possible to extend the period. We do not know what may happen in future. The process may be changed quite substantially. The amendment would limit us unnecessarily. It is normal in legislation at this stage to use a term such as ''vary'', because it gives us options.
I realise that that will not be any comfort to the hon. Member for Winchester, because he wants me to close down one option, but the Government have no intention of reducing the period of 14 days. We feel that there should be a statutory minimum for the period between certification and any enforced removal. That is right in the circumstances. We do not want to reduce that, but none of us can predict what may affect consideration of these processes. It would not be good law making to constrain ourselves at this point. I hope that the hon. Gentleman can accept my assurance that I have no intention of reducing the period of 14 days and withdraw his amendment on that basis.
The Minister has been extremely helpful. She says that it is not good law making to narrow down the option. I could argue that it is not good law making from the Opposition's perspective merely to have a Minister's promise or commitment in Committee about something in the Bill that is unclear. I am uneasy about that. It would be hard to envisage circumstances where one would wish to vary the time period downwards. It would go into someone's natural period of justice and I am uneasy about it. I accept the Minister's reassurances and we may want to revisit that at a later point.
On the wider issue of whether it is 14 or 21 days, I understand the Minister is saying that, in this particular fifth class, we are allowing a longer period. As there will be a generally longer period, there is an argument for saying that it should not be 21 or 14 days. She has yet to explain how long it will be. We have
some detail about the letters and the interview but we need to know whether that will all be done in a week, two weeks or four weeks. Until we have clarity about how long the process, which I think is helpful, will take, it is difficult for us to make a judgment about the 14 and 21-day point.
For the sake of a week, it would be a tidier system if the fifth class were in line with other classes. It must make sense to have the same principle in place. Not having it in place could lead to confusion. Individuals may assume, perhaps because they have been through the process before, or their advisers may assume that the period is the same as it is for other classes. It is sensible to have tidy legislation that is similar to the other processes that are in place. The Minister admitted that these cases are more complex. That is why the Government want to put these processes in place. If these cases are more complex, it is inconsistent to have a period that is much shorter than the one for less complex cases.
Finally, I may be misinterpreting some of the subsections, but in some of the other classes there might be an ability to appeal against the determination to terminate the support. My reading of the clause is that no appeal may be brought for the fifth class on the removal of support. If that is being taken away, my layman's interpretation is that another tier, another period, is being taken away for this class. That suggests that having the 21-day period rather than the 14-day period would be helpful. We will need to revisit these issues. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 88, in
clause 7, page 7, leave out lines 13 and 14.
I was simply going to ask the Minister to explain what subsection (2) means, because there is some confusion about that. I have tried to speak to some of the charities and the various bodies that have lobbied us on the Bill. Subsection (2) reads:
''Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).''
Is the purpose of the subsection to exclude the possibility that benefit or support could be given to children? As the Government's intention is to remove the support for the parents, do they want to avoid a loophole that would mean that support could be given directly to children? The family would therefore not suffer because of losing their benefits as the support could be targeted on the children. Is it the intention of the subsection to remove that possibility? I should be grateful if the Minister clarified that point.
The effect of subsection (2) is that the support normally available through the asylum system would be withdrawn from all the dependants of the principal claimant, so National Asylum Support Service support would cease for everyone, contingent on a principal applicant's claim, which would include the children. Hon. Members have alluded to the extent to which withdrawal of NASS support puts children at risk. If it got to that stage, the children would come within the province of legislation that applies to children generally—the Children Act 1989.
I appreciate that this is a probing amendment but I cannot accept it because it would frustrate the intention of the clause, which is to try to get people to leave voluntarily and to accept that, if they do not, support will end, if the family could continue in part to carry on getting support through the asylum system. That is why the whole family—all the dependants contingent on a claim—would come within the remit of clause 7.
The amendment would send a muddy message, when we want to send a clear message that people should return home, that we will help them to do so together and that if they do not co-operate with us we will not support them as a family indefinitely. For example, we cannot remove a family who should leave the UK but have not done so because they have not co-operated with attempts at redocumenting them, and there is no redocumentation. We want to ensure that prior to that point being reached we get the co-operation of those families to enable us to return them.
I could say more, but the hon. Gentleman asked a specific question. I have tried to explain that I cannot accept the amendment because it would cut through the intention of the clause significantly.
It was a probing amendment. My intention was to obtain clarification of what the subsection meant and for the Minister to put on the record that it is the Government's intention not only to remove benefits directly from the parents involved but specifically to ensure that in doing so mechanisms are in place to remove benefits that could go to individual children. The Minister has been clear about that. She wants not only to target the parents but to ensure that individual benefits could not go just to the children, even if they have been removed from the parents. We disagree with that, but at least I am clear what the Government's intentions are. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 35, in
clause 7, page 7, line 15, leave out from '(1)(d)' to end of line 18 and insert
'the Secretary of State shall cause a copy of the certificate to be handed personally to the person and the person shall be treated as receiving the copy at the moment it is handed to him.'.
This is a probing amendment, on which we shall not vote. It relates to the method of the certificate's delivery to the person concerned.
On the face of it, there is no valid objection to the Government's proposal to deliver that certificate by first class post. However, there are one or two different issues in relation to asylum seekers that make the amendment worth discussing. Unlike much of the population, the asylum seeker might not have a permanent or fixed address, or an address where post
is readily received. There are many types of address in this country, and the delivery of a letter can be difficult—particularly in blocks of flats, as I know from my judicial experience—and is often not completed satisfactorily because of the nature of the building. Furthermore, asylum seekers might be more on the move, more of a floating population.
In the vast majority of cases, the Government's proposals will work out satisfactorily. However, the Minister should be aware that the receipt of a document that has been merely posted to an asylum seeker may not be as guaranteed as it would be if posted to more permanent members of the population with more permanent addresses.
Does the hon. Gentleman agree that a benefits agency officer delivering a letter by hand might not be able to identify the person to whom he must give it? To give an example, the Mitchelhill flats in my constituency are occupied by hundreds of asylum seekers, and it would be possible for an officer to misidentify a person. Has the hon. Gentleman considered that?
The hon. Gentleman makes a good point, in a sense about the same kind of difficulty that I have mentioned. In the type of blocks of flats that he refers to—he will have much experience of this—the delivery of the post can be difficult, as well as the one-to-one dealings. I put that to the Minister so that she can respond. There may be an argument for recorded delivery.
There is an argument, which the hon. Member for Winchester will advance with his amendment, for the duplication of the certificate and for that duplicate to be sent to the person's representative. For example, if one is a solicitor on the record, a court document is always properly served. My probing amendment points out that there are one or two handling difficulties, which I hope the Minister will address.
I wanted to ask the Minister one or two brief questions on the subsection, and my hon. Friend's amendment gives me that opportunity. I want to be assured that the normal rules applying to the service of documents would not be excluded by the words that begin on line 15 of page 7 of the Bill, and that that would not be the only means by which the service of a document could be proceeded with. For example, personal service of the certificate or sending it to the representative of the person will do, but I assume that the Government are trying to ensure that, if all else fails, they could post the certificate and that that would be deemed good service.
I accept that there will be practical difficulties, as has been suggested by my hon. Friend the Member for Woking (Mr. Malins) and the hon. Member for Glasgow, Cathcart (Mr. Harris), because of what has been explained, and not least because of language problems. I would have thought that the ideal—of course, the best is often the enemy of the good—would be to ensure that the certificate be handed personally to the individual. That will not always be possible, but as long as I am assured that we are not limiting ourselves to serving by post, and that all other methods
are sensibly available, I would be happy to join my hon. Friend in not pressing the amendment to a Division.
Notwithstanding the other comments that have been addressed to the hon. Member for Woking, I do not have too much difficulty with the clause as it stands. However, I have one or two reservations that I hope the Minister will deal with. There is the problem of language, about which the hon. and learned Member for Harborough (Mr. Garnier) spoke. Many asylum seekers have come to me for advice and help without even being entirely clear about their own address. Such people have often given me information that has subsequently turned out to be incorrect. Occasionally, I have to give them the benefit of the doubt and assume that that is not a deliberate attempt to mislead me, or delay the appeals process. Nevertheless, there is sometimes some confusion in the minds of some asylum seekers about their exact status in local authority housing.
Can the Minister answer a question about a specific matter? I have been in touch with her Department and the immigration and nationality directorate on a number of occasions when the Home Office, or IND does not have the correct address for asylum seekers. For example, if a letter is addressed to an individual in a block of flats, it is sometimes easy to get the flat and block number reversed and often a number of communications do not reach the intended person. I am sure that it is the same in your constituency, Mr. Taylor. On various occasions it has turned out that my constituents have not attempted to give the wrong information about an address, or to avoid detection by the authorities. Instead, there has been an administrative error and the Home Office, and occasionally an individual's lawyer, has sent many communications to a particular address, only to find out weeks later that, simply because two numbers were reversed, those have not reached them. That problem has affected both the Home Office and individuals' solicitors.
I would be happy with the clause, provided that my right hon. Friend reassured me that every measure will be taken to ensure that such an important communication is delivered to the correct address. Where asylum seekers have not been entirely truthful about their last address—and that does happen—it is their responsibility and the Government should take no responsibility for any confusion arising from that. However, I am concerned that processes in IND have led it to hold out-of-date, and occasionally inaccurate, information about asylum seekers' addresses—but that is not their fault.
I support the amendment tabled by the hon. Member for Woking. The point was well made about the need to ensure that the certificate is handed to the individual concerned. That is important. The hon. Member for Glasgow, Cathcart explained clearly why that could be difficult, particularly because trying to gain entry to some tower blocks is complex. It is
critical that this measure is accurately administered, and that there is a sign-off when somebody has received the certificate, so that there is an assurance that they have got it.
I commend to the Committee and the Minister our suggestion that a copy of that certificate go to a nominated representative. It is not inconsistent with the Conservative amendment and runs alongside a system of registering and ensuring that the individual's certificate has gone to them. That may lead to work being duplicated, but on such sensitive matters it would be worth putting in place the safeguard that another copy has gone to somebody who is in contact with the asylum seeker, particularly if there are language or interpretation issues around what the certificate means. It would be helpful if we made sure that a representative had a copy.
Can the Minister comment on the merit not only of the suggestions about the certificate, but of having a similar system in place for the letters and, in particular, the opportunity and offer of an interview? That is important, as the Government will interpret a failure to respond to the letter or to the interview as non-co-operation. What sometimes could seem to be non- co-operation could be a failure to receive the letter or the request for the interview. The argument in respect of the certificate is well made, but the case for a similar system for other parts of the process that lead up to the certificate is also important.
Amendment No. 35 would require a certificate issued under clause 7 to be served personally on the applicant whose asylum claim has failed. The amendment is a probing amendment and I hope to assure the hon. Member for Woking about our proposals. The purpose is to ensure that the applicant is fully aware of the consequences of his actions and that there is no slippage in the process, which means that someone is in doubt or is ignorant of the fact that support could cease 14 days after the certificate is issued. I agree entirely that the family must understand what could happen if the view were reached that they can leave voluntarily but they have not done so and not co-operated.
I have made it clear that the process will involve an interview with the family and a warning letter prior to the issue of the certificate. That will give us the opportunity to make it clear at the interview the consequences of failure to leave. We can explain clearly each stage of the process from that point, including how, if necessary, a certificate will be issued if the family remain here. There is not much difference between the hon. Gentleman and the Government on that point.
To require in law that the certificate must always be served personally could have consequences that I suspect the hon. Gentleman may not have intended. For example, I have said that we will invite the family to an interview as part of the process. If the family did not attend the interview and did not contact us to explain why, we would issue a further letter explaining that support could be withdrawn. If the family still did not co-operate, we could certify that they failed to take the necessary steps. In addition to the special
milestones in the process that I have outlined, because their claims had failed, the families would be required to report to us regularly, usually on a weekly basis.
I was about to come to that point. It was raised by the hon. and learned Member for Harborough. As I explained, families will be reporting to us during the period, usually on a weekly basis. In most cases, we would want to use that reporting opportunity to serve the certificate. It would be a personal service, although not necessarily at the point of issuing the certificate, but at an earlier stage in the process.
We want to pursue the potential for personal service because personal contact would be more effective in getting people not only to understand but to co-operate. We have already experimented with personal service in certain circumstances with other applicants and found that to be the case. I confirm that the clause, as drafted, contains a bottom line, which is a first class letter and that will be deemed to have been received two days after posting. It does not preclude other forms of notification, including personal service. When possible, particularly when we can combine that notification with the family's next date for reporting, we will use that opportunity to serve the documentation personally and then explain. However, if the family did not attend the milestone interviews in the process—if they were trying to frustrate the process by not appearing—and the Bill required us to serve the documents personally, being unable to take the process further because we could not find the family would allow those intent on frustrating the process to do so.
We will look closely at the best way of issuing certificates. The most appropriate time may be on people's reporting date. I hope that I have assured hon. Members that, although we will try to use personal service when possible, we must include a provision in the Bill that gives us a bottom line. That is the purpose of the subsection.
Amendment No. 89 would make it obligatory for us to contact the applicant and the legal representative at the same time. In some instances, we will already have been in direct contact with a representative who is acting on someone's behalf. If there was a representative, we would not exclude that person from the interviews earlier in the process, because it is in our interests to have a representative to ensure that the applicant fully understands the process that he or she is going through and its consequences. I have said to officials that, as a matter of policy and practice, if the certificate is served by letter, at the same time as the first-class letter is sent out to the applicant, a letter will also be sent to the legal representative, if we know that there is one.
I hope that that may reassure my hon. Friend the Member for Glasgow, Cathcart on his point about problems with an address—although I emphasise again that certification comes at the end of the process, so we would have obtained information about that at an earlier stage. However, if there was an error in the address, there would be some safeguard in sending the letter simultaneously to the failed claimant and to the legal representative. Although that does not give a cast-iron guarantee, I hope it reassures my hon. Friend that if there was a problem it would be likely to be spotted.
On Tuesday, the hon. Member for Winchester moved another amendment, on which I intervened and spoke in anticipation about this subsection and these amendments. I asked whether he was convinced that the subsection that we are now discussing created an irrefutable presumption of service.
I want to be sure that the Minister accepts that simply to assert that a first-class letter containing the document has been sent does not mean that the asylum seeker or his representative cannot, on the production of cogent evidence, demonstrate that that could not have happened. The service should not be irrefutably presumed to have taken place simply because someone says that they posted it by first-class post. A failed asylum seeker should not be prevented from saying, ''Well, as a matter of fact you are wrong, because . . .''
That is correct, but I hope that, in practice, the measures that I have outlined give some assurance to hon. Members on both sides of the Committee that when we can we will serve the documentation personally, particularly where that fits in with reporting, and when we have to send a letter we will send another at the same time to the legal representative. Although, sadly, none of us can guarantee that if a letter is put in the post box it will reach the recipient, I hope that on the balance of proportionality, we are doing what we can in practice to ensure that there is no slippage between posting and receipt, and that people are informed. If someone can show any evidence that they have not received a letter that was posted and that the legal representative also did not receive it, they can present that evidence for consideration.
As I was speaking, that example went through my mind too: it shows that we are thinking along the same lines. Where there is clear evidence that there was disruption in mail services, it will be taken into account. We do not want to catch people out unfairly. I hope that I have assured the Committee that we think the measure is necessary. In applying it, we intend not only to treat people fairly
but to give them every opportunity to avail themselves of the possibility of return without getting to this stage in the process.
The Minister has reassured me enormously, particularly on the point about a certificate going to a legal representative. However, everything that she said leads me to think that it is important to have an interview at the earliest possible stage. Can she give some thought as to when she envisages that the interview will take place? Is it after the second or the third letter? If it is after the third, I suggest that it would be better to have the interview at an earlier stage, so that many of the issues that we are discussing can be clarified, As she says, there should be good personal contact early on.
I should like to put some caveats on what I am about to say, because we are still thinking about the detail. I currently envisage that when we receive notification from the tribunal that all appeal rights have been exhausted, the asylum seeker will receive a letter setting that out formally. It will say that they should return home, and will outline all their options. That will be the formal statement of their position. We will advise them that we shall write to them to arrange an interview. They will then receive a second letter, with an appointment for an interview. It is only if they do not turn up and fail to co-operate that they receive a third letter and potential certification. We envisage the interview at an early stage. That is a crucial point that the hon. Gentleman has made: the more drift in the system, the more difficult it becomes. Equally, between each stage, we must give people sufficient notice of an interview. We cannot write to them and say, ''You've got an interview tomorrow.'' We shall be reasonable throughout the process, but we must get the balance right. There should be reasonable notice within a reasonable process, without drift. I hope that, after those assurances, hon. Members will not press their amendments, and I hope that I have answered their questions satisfactorily.
Like the hon. Member for Winchester, I am reassured by the Minister. It has been a useful debate, because the hon. Member for Glasgow, Cathcart, my hon. and learned Friend the Member for Harborough and the hon. Member for Winchester have all raised points of detail that the Minister has addressed very helpfully. I do not doubt the Government's good faith on the issue at all. I am sure that their objective is to do the job properly, with humanity and efficiency. The Government are clearly aware that there are potential difficulties that they must overcome. I was reassured, as was the hon. Member for Winchester, by the Minister's comment that, in practice, the certificate would be served on the asylum seeker's legal representative. Almost the first thing that a solicitor in a normal civil process would do is to write to the opposition solicitors to say, ''I am authorised to accept service on behalf of my client.'' It is deemed at law to be good when such documentation is served on the solicitor or representative and the
courts. The Minister's reassurance was helpful, and I infer from it that service could be not only on the solicitor if instructed, but on a non-governmental organisation, such as the Immigration Advisory Service, that was on the record as representing.
Beverley Hughes indicated assent.
I see the Minister nodding, and that is helpful.
This has been a useful and good short debate. I am grateful to the Minister for her comments, and in the spirit of co-operation that increasingly engulfs us as the week draws to a close, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 36, in
clause 7, page 7, line 24, leave out subsection (3).
Subsection (3) provides that an asylum applicant will have no right of appeal when the Secretary of State makes a decision on certification and serves the document. I was intrigued during our last debate when the Minister, in response to a point about postal strikes, effectively said that if a person could prove that he did not receive the document for whatever reason, it would be open to him to make representations. I thought that she might say that it would be open to him to appeal, but she did not use that word. However, it is because things go wrong in life that rights to appeal are important and should be protected.
It is an important principle that any administrative act, particularly one that is to the detriment of the person concerned, should be open to some challenge. I find it difficult to think of any administrative act in life that is not subject to some independent or judicial oversight. However, as I understand it, there will be no judicial oversight on the decisions referred to in subsection (3).
This is a probing amendment. Will the Minister say what has happened hitherto in such cases? There have been previous cases in which support has been withdrawn, and it is stating the obvious to say that they have been subject to a form of challenge. It would be helpful for her to set out not only what has been the exact form of challenge, but how it has been undertaken. How many challenges to such administrative decisions have been made in the past, and to whom have they been made? How many have been successful, and on what grounds? What justification does she have for removing that right of appeal?
We are dealing with a sensitive situation. I do not want to stray too far into any stand part debate, but my point relates to the appeal. Unless I am mistaken, the cessation of support and/or benefit has hitherto operated at the stage in proceedings when removal directions are given. That is a late stage, when the Government are ready to remove. The purpose of clause 7 is to bring the certification forward to a point in the proceedings before removal directions are given. As we shall probably debate on clause stand part, there is a limbo period between the appeal being dismissed and the removal directions being given. That is quite
an important period, because I assume that during that time the Government are deciding whether they can in practice give removal directions.
As we know, in many cases the Government will not choose to give removal directions at all. For example, removals to Zimbabwe have now been suspended for many months. The Government are simply not issuing removals to that country, for obvious reasons. There are other areas of the world to which it is difficult to remove people. The Minister alluded the other day to countries that simply refuse to take back failed asylum seekers, or who make the process very difficult. There are countries where the flights and/or airports are difficult to reach. I hope that my point is becoming clear.
Those are cases in which I imagine the Minister would not in normal circumstances serve removal directions on the person concerned, for reasons that she would regard as right and fair. Now the procedure includes the ability to take away benefits. That could bite in cases where she has not considered whether removal directions should be given or has not reached a conclusion—or, in the case of a Government whose motives were not the highest, and I do not say that of this Government, it could bite against a person to whom removal directions would never be given, for the reasons that I outlined.
We must consider providing some check against the Executive in such cases by way of appeal. I am certain that there are Government Members who will take a view on the matter, and will want to advance some thoughts on the issue. My amendment—and I repeat that it is a probing amendment—is designed to ask the Government whether we are dealing with an administrative act that, as a result of the clause, cannot be challenged anywhere. If so, do the Government think that a happy state of affairs?
I agree with what the hon. Gentleman said. I would have thought that the importance of appeal is particularly pertinent here, because in my experience it is difficult to prove a negative. As a lawyer, I am trying to think of how someone could prove that they did not receive a letter, except when there has been a postal strike. The norm when intimating important decisions is to forward the document or letter by recorded delivery, because then there is proof of receipt. I would have thought that a sensible way to proceed in any case. For those reasons, the issue of appeal is important, and I am pleased that this probing amendment has been moved.
The hon. Lady makes a fair point. She and other Committee members may want to come in on this debate and raise their arguments in their own way, as she has done. I merely point out that we are talking about an administrative act that, as far as I can see, is not subject to any judicial oversight. Many people, both here and outside, might resent that, and many might ask why it is necessary to take that step. Is the history of the matter so difficult, complex and full of abuses that it was felt justified to remove what has hitherto, as I understand it, been an important right,
and one that many would argue should remain in force? I hope that the Committee is open to a debate on the issue of appeal, and that there will be many contributions.
I have some questions for my right hon. Friend the Minister, although I may be revealing my ignorance of English, and probably Scots, law. I am sure that the hon. Member for Perth (Annabelle Ewing) will be quick to put me right if I make a mistake. We have to be clear about the reason why this subsection is included. As I understand it, if the appeal was allowed, it would be against the withdrawal of benefits, and nothing to do with the decision of the Home Office on whether to grant refugee status to an asylum seeker. On that basis, theoretically there should be a fairly clear-cut decision: benefit will be withdrawn if a family in that position has not co-operated with the Home Office by not turning up to meetings and ignoring appointments and letters.
Presumably, the hon. Member for Woking has in mind the grounds for appeal and considers it purely a matter of communication, assuming that the family had every intention of co-operating with the authorities and turned up for appointments. In such circumstances, the decision to withdraw benefits at that stage would be unfair. I imagine that that is the basis on which any appeal would be accepted, were his amendment agreed. If we allowed an appeal process under this clause, it would be used by applicants as a way of delaying their inevitable removal from the country. Because of provisions that we will consider later, there is a slimmed down appeals process—especially under clause 10. Under the amendment, many failed asylum seekers would attempt to use clause 7 to delay their removal, rather than using the current system of an almost never-ending appeal process, followed by judicial review.
Does the hon. Gentleman agree that the main issue is not whether the result of not having an appeal is that somebody is removed, or loses benefit? Does he understand that that is not the principal matter at stake? As my hon. Friend the Member for Woking suggested, the main issue is whether the action of an Administration should not be subject to judicial review. Does he believe that there should be acts committed by an Administration that are not capable of being subject to judicial review?
I am glad that the hon. Gentleman raised that point. I was just about to ask the Minister about that. Going back to what I originally said about my complete ignorance of English law, I wanted to ask her to clarify something. In the Bill as it stands, no appeal is provided for if benefit is withdrawn. Does
that include judicial review, as the hon. Gentleman has just said? If no appeal under the withdrawal of benefit is allowed, but judicial review is allowed, I can see that causing more problems than an appeals process, if every case of withdrawal of benefit from a failed asylum seeker family ends up going to court. It would surely be better to have an appeals process. In fact, because I support the spirit of what the Government intend, I would rather that the Bill contained provisions not only to prevent appeals against benefit withdrawals but to prevent judicial review.
I understand what the Government are trying to do and the problems that have led them to the position where we are not allowing an appeal against the withdrawal of benefit. I hope that my right hon. Friend will be able to address that matter. It may be—not for the first time—that I have misinterpreted English law, but it seems that because judicial review is not explicitly mentioned, unless I have misread the provision, it would in certain circumstances be allowed.
I do not think so. We could be in danger of moving on to clause 10, but one of its provisions relates to the absence of any supervisory jurisdiction by any court over certain decisions, which include a decision in connection with a decision to remove a person. The hon. Gentleman makes a fair point and we will obviously develop these points as the Committee proceeds towards that clause.
The hon. Member for Woking raised an important point about a right of appeal on this process. In our debate on the previous amendments on how complex it could be to get the information across to a failed asylum seeker, we heard that the Government are keen to ensure that information is put across properly. We have had a discussion about where there could be shortfalls in that information coming through. It will be clear to all hon. Members that within that process things could go wrong. If there are occasions where things go wrong, there could be genuine reasons and there should be an opportunity for an individual at the end of that process to have a last chance to explain on factual grounds where something has gone wrong. It is a shame that the Government appear to be taking away that right.
Will the Minister help me? I am still not clear whether there is a difference between the proposals set out in subsection (3) to remove the right of appeal for those in the fifth class and those for other classes, or whether it is the Government's intention, by placing this subsection here, that what stands here should also read across to other classes. That is an important question. Are we saying that we will take away the right of appeal against the removal of benefits for all
classes? Are we bringing this group in line with other classes or are we making different rules for families with children, in that they will not have the same rights of appeal for removal of benefit that others such as single individuals would have? It would be helpful if the Minister would clarify that point. If differences are being made here from the other categories, my concerns would be increased.
Finally, if an individual's circumstances changed—say, they had reached the point where the certificate had been issued, and a child became ill and had to go into hospital, or a circumstance changed in the country where it was the Government's intention that they should return—are there other systems in place that would allow them to appeal and change the decision? I hope that the answer will be that other systems would kick in. If not, I would be extremely concerned about taking away the ability to appeal a decision in such circumstances. I hope that the Minister will help clarify those points.
I share the concerns of the hon. Member for Winchester about the potential distinction between this class and other classes of person dealt with under the Nationality, Immigration and Asylum Act 2002—but there is another potential distinction between the people to whom the measures apply and the ordinary round of people receiving benefit. I ask the question out of ignorance: is there a similarly restrictive regime for the denial of benefit to British citizens? Do they have a right of appeal beyond that allowed to failed asylum seekers?
The points raised by the hon. Member for Glasgow, Cathcart were well made, but he may be getting too tied up over the distinction between an appeal and a judicial review. I hope that I have not misunderstood him and that he will not misunderstand my remarks. I am not interested in the technical difference between appealing and judicially reviewing. I merely want to be assured that when an administrator, a civil servant or somebody in a benefits office—[Interruption.] Does the hon. Gentleman want to intervene?
I was listening to the hon. Gentleman with interest as he advanced the case for what should happen to failed asylum seekers. How did he vote in 1996, when the Conservative Government proposed removing all benefits, not from failed asylum seekers but from people making applications in country and whose applications had not been considered?
Mr. Garnier rose—
I entirely agree with you, Mr. Taylor. The hon. Gentleman knows more about the subject than I do, but I suspect—I may be right or wrong—that the Bill for which he criticised me did not remove the right of appeal. This Government probably have another 18 months to run, and he can persuade Ministers to repeal that monstrous piece of legislation
in due course. Government Back Benchers have increasing influence over what the Government do, and current Front Benchers may soon be Back Benchers, or vice versa.
I shall continue reassuring the hon. Member for Glasgow, Cathcart that I am not bothered about the technicalities of the distinction between a judicial review and an appeal. We are not shutting out the right to review a decision made by a civil servant or an administrator. Those decisions are no doubt made on behalf of the Secretary of State, but I can assure you, Mr. Taylor, that the Secretary of State will never come to know about them. There is a story—I do not know whether it is true, but perhaps the Minister can help us—that when one receives a letter from a Minister saying, ''the Minister has seen your correspondence and has made the following decision'', that means that a trolley containing files of correspondence is pushed past the Minister's desk and out the other door. In that case, yes, the Minister has seen the correspondence. However, I am sure that that cannot be true of this Minister, and I can see that she is itching to refute it and say that she looks at every one of my and my constituents' letters.
I think that I have made my short point on that subject, and I hope that we will have a longer opportunity to deal with that problem when we examine clause 10. My hon. Friend the Member for Woking was right. Clause 10(7), and especially new section 108A(2)(e) within it, provides fertile ground for a debate, which he may enjoy participating in.
There is something not quite right with a country that allows an unelected person to make a decision that has a fundamental effect on someone's life, without allowing anyone else to review it. Such final decisions are unattractive. We want to ensure that the asylum system properly makes a distinction between those who ought and those who ought not to be here. Those who should not be here should not have recourse to public funds and should be removed. I see that there is a problem that public moneys will be spent while the decision is being made and implemented, but as soon as it is decided that someone should not be here, their speediest removal should be provided for.
The problem under clause 7 arises because a decision made on the asylum seeker's wrongness in being here can take many months to be implemented. Such people then hang around for months in receipt of benefit. I am beginning to waffle, so I shall try to be brief. The problem arises through being incompetent in removing those who have failed the test on asylum, and we should look more at that end, rather than the benefits end, of the telescope. If the Government could
get that right, we would not have to deal with the problems related to the withdrawal of support thrown up by clause 7.
As I said, it is wrong to allow a civil servant to make a decision that is unchallengeable. However, it is equally wrong that a Government should permit a system to continue that allows those who have been denied the right to remain in this country to remain, whether or not they are in receipt of benefits.
I shall start by answering some of the questions raised by the hon. Member for Woking before setting out my intentions.
The hon. Gentleman asked specific questions about the redress for the other people encompassed in schedule 3, which covers similar categories of people to which clause 7 adds a fifth class. There have been only a few judicial reviews—about three or four—in cases concerning people in those groups. Not all related to asylum seekers, as some covered overstayers or people here illegally, but all the reviews were against local authorities, with the Secretary of State as an interested party.
The hon. Gentleman also asked whether the removal of the right of appeal in clause 7 will apply to everybody covered by schedule 3 as well as the new class that we are adding. It will, but that will mean very few people in practice. The main class of people affected will be the one that the clause adds. However, I should make it clear that I have already been considering whether it would not only accommodate the arguments made by hon. Members today but be better in itself to include an appeal stage on the certification for the withdrawal of support only.
Having said that, I want to make it clear that the people affected by the clause will be those who have been rejected after going through the asylum process, with the decision having been upheld on appeal, assuming that the right was exercised. As I have said many times, we want people to depart voluntarily. The principle at the heart of the clause is that when people have gone through a process and the claim has not been accepted, we will not support them indefinitely at taxpayers' expense. In order to withdraw support, the Bill is clear that we must decide whether people have failed, without a reasonable excuse, to take steps to leave the United Kingdom voluntarily, or to place themselves in a position that allows them to leave voluntarily.
We will make clear to families the steps that need to be taken. For example, they must attend an interview when requested and co-operate with attempts to redocument them. We want people to know what they have to do. We want to encourage them to leave voluntarily, and when we have to certify, as a last resort, that should come as no surprise. My hon. Friend the Member for Glasgow, Cathcart, the hon. and learned Member for Harborough and the hon. Member for Woking asked what avenue of redress there is against a decision to certify. Under the Bill, it will be open to a family to challenge certification through judicial review. A remedy already exists under the clause. Initially, we believed that to be both sufficient and an appropriate legal redress.
I have reached the view, however, that there is an argument, in the interests of the appellants and of an efficient process, to allow an appeal to an asylum support adjudicator. That would be the appropriate forum, and might be a better solution. It may be a more appropriate avenue than the judicial review route. Furthermore, we must recognise that, by allowing that opportunity, there may be a greater number of challenges than would be the case if judicial review was the only remedy.
We must try to strike a proper balance between a process with clear milestones that we take people through, so that they know what is going on, and not allowing that process to drift, because our intention is for people to return home. If we are to introduce an appeal stage, I want a little more time to consider in detail the practicalities, and in particular the time taken for an appeal to be resolved. It is important to ensure that there is no scope for the failed asylum seeker to reopen the arguments about the validity of his asylum claim. The appeal must be restricted to the decision to certify on the withdrawal of support.
This is a very interesting debate. I understand that the Minister wants the appeal to be based on technical grounds. I agree with that, but what about changed circumstances, such as an ill child? Can she reassure me that there would be another route of appeal if circumstances changed after the certificate had been issued?
The hon. Gentleman gave two scenarios when he spoke earlier about the circumstances that he thought could arise that might warrant another look at a case. As for a child going into hospital, we must consider that in terms of an appeal against withdrawal of support. However, the changed circumstance in the country is germane not to withdrawal of support, but to the asylum claim. The human rights avenue would exist for that person to try to open up his asylum claim again on the basis of the changed circumstance argument. There are different scenarios in relation to withdrawal of support.
I want to make it clear that, should we consider a right of appeal to the asylum support adjudicator appropriate, and should an appeal be lodged, that could not mean that the compulsory removal of a family designated for such removal would be delayed. That is because the appeal would be against certification of withdrawal of support. It does not relate to the validity of the judgment already made about the asylum claim.
If an enforced removal is open to us, the lodging of an appeal to the adjudicator about certification cannot and must not delay that, because it is an entirely separate issue. I stress that, because hon. Members must be clear about it. If we go down this route, there may be cases in which someone lodges an appeal against certification but we continue with an enforced removal. I hope that hon. Members feel that we have made some progress.
The Minister says that there would not be scope to reopen the arguments about the validity of the asylum claim. However, if the way in which the decision was reached about its validity was in question, because of, for example, an alleged breach of the rules of natural justice, would an appeal be allowed to take account of that breach? I am thinking of a constituent of mine, whose case involved not asylum but disability living allowance. The case went before a tribunal, and it was plain that the tribunal reached a decision that it should not have, because my constituent was denied the right to a fair hearing. The tribunal's decision was later quashed. When—
I repeat the point that I made on the scenario suggested by the hon. Member for Winchester of a change of circumstance in the country to which people are to be returned. Clearly, quite outside what we are talking about, there is provision under general human rights legislation for a legal representative or asylum claimant to try to persuade a court, usually through the judicial review process, that there are new circumstances or that the consequences of the failure to grant asylum will contravene an article of human rights legislation.
Perhaps, but usually these cases are brought on human rights grounds. If that process took place and a court accepted those arguments and allowed a hearing, clearly that would have implications. We would then be at a stage at which appeal rights, having once been exhausted, were not necessarily exhausted, because another judicial process was going on that was germane to the claim itself and the removability of the people involved.
I understand that the more the Minister explains, the more questions hon. Members tend to think up, but is it the case, first, that a Minister can de-certificate off his own bat under the clause? Secondly, if an appeal that was lodged against certification would not slow down the removal process, what is the argument against having an appeal against certification?
To answer the first question, the decision is, as a result of the way in which the clause is written, an Executive decision, so if a change of circumstance changed the basis on which the certificate was given, as in the examples outlined by hon. Members, it would be possible to reconsider the certification. However, it would have to be a complete change in circumstances. On the second question, I had already concluded, for two reasons—not least a smooth administrative process—that it might be preferable to have an appeal mechanism. However, there would be constraints on that appeal, in that it would have to relate only to certification of withdrawal of support. All other things being equal and remaining
the same, the adjudicator would not allow a reopening of the asylum claim, and enforced removal could not be prevented, because of the claimant's removability.
We must be able to proceed to an enforced removal, notwithstanding the appeal against certification, if that course is open to us. I hope that hon. Members will allow me to take this away and continue the work that we have been doing. I want to come back to the Committee with something that will enable an appeal to the adjudicator. I do not want the process to be elongated too much, or to allow further drift—to which I referred in my earlier remarks about 14 days, and our general discussion about time periods.
With those remarks, I hope that the hon. Gentleman will withdraw the amendment, and allow me to come back on Report with something that will accommodate my aspirations to build a fair and robust process that allows us to remove more families, but also meets the Committee's objectives.
We have raised with the Government what we have described many times as the failing in their removal system. I agree with the Minister's last remarks, that any right of appeal introduced under this clause must be a separate matter from removal directions. I speak for my colleagues in saying that we wholeheartedly support her when she outlines the general principle that delaying tactics against lawful removals are not to be admired in any way whatever.
I have found this debate helpful. The Minister has listened very carefully to what has been said. She may have formed a view before today that she would consider an appeal mechanism on the issue of benefit that does not interfere with other due processes. Perhaps she will come back to us on Report. I speak for Conservative Members and, I hope, for the hon. Member for Winchester and others in welcoming what the Minister said today. It has been a most useful debate.
I conclude by thanking my hon. and learned Friend the Member for Harborough for his observation about ministerial correspondence and how Ministers used to say, ''I have seen your correspondence.'' I hope, Mr. Taylor, that you will allow me to tell a brief, true story, because it is such a good one. I shall cut all my speeches down in future—I really will. The Minister was depressed that all he was saying was, ''I have seen your correspondence,'' so he decided to treat his letter-writers better. Every morning the trolley was wheeled through his office, and he said, ''I have seen that correspondence, and I have noted it with some interest.'' That was reported to every other letter-writer, who noted it with interest. I said that I was going to be brief, and I was.
I thank the Minister, who has helped us today, and I think she will come back on Report with something that will fit her purposes, and I am sure that it will fit ours. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 91, in
clause 7, page 7, line 33, at end add—
'(5) The Secretary of State shall publish regular statistics on the operation of this section, with specific reference to its impact on children.'.
The Minister has been so incredibly helpful this morning that I suspect that I shall probably be pushing my luck in attempting to get much more support from her. The intention behind this probing amendment is to seek some reassurance that the system that is being introduced will not have the impact that many of us fear. The idea is to have a system to monitor the impact of what the Government are suggesting.
This morning and on Tuesday, the Minister went to great lengths to assure us that everything would be done to protect the rights of children. On Second Reading, she said that she did not believe that what the Government were doing would lead to hardship, and that the intention was for the clause to act as a deterrent. She found it hard to envisage a situation in which people's children would have to go into care, because the deterrent would be enough to prevent it.
That may or may not be the case, but the Government have used the same argument in the past. For example, on section 55 of the Nationality, Immigration and Asylum Act 2002, the Government argued that threatening to remove benefit from late claimants would speed up the process, act as a deterrent and prevent late claims. The Government envisaged that it would be unlikely that people would lose their benefits. However, those hopes have not materialised, and about 7,000 people have had their benefits removed under those provisions. There have been judicial reviews of that process, and the Home Secretary announced changes to it on Second Reading.
The point of the amendment is to say that it would be sensible to have a system of review, so that we do not get into the same difficulties with the removals of benefits proposed in the clause as we have done under section 55. We suggest publishing regular statistics on how the system is operating. If, as the Minister says, parents regard the legislation as a deterrent and do not reach the point where they lose benefits, the quarterly results will show a nil figure. However, if, as we fear, human nature does not operate as we in the Committee think it should, we will be able to see what the problem is from the statistics. I hope that she will consider publishing the figures.
The point of the clause is to withdraw benefit. However, benefit might be withdrawn without the children being threatened with removal, because the family has access to other income that has not been declared and can therefore provide adequate care. The statistics would not be able to reveal such circumstances, so people might draw conclusions that would lead to false assumptions.
The hon. Gentleman makes a valid point about the misinterpretation of statistics, but I would rather at least have some statistics to misinterpret in the first place. It would be helpful to have two sets of figures. The first would show how many individuals had had their benefit removed as a result of the clause; the second would contain information from local authority associations on how many children from
that category had been taken into care. We could learn something useful from that information, so I hope that the Minister will give us some comfort and explain what system will be introduced to monitor the impact of the clause.
As I stated at the beginning of the debate, I believe that the clause is beyond the pale because of its possible negative impact on children. If the clause remains part of the Bill—I sincerely hope it will not—the Minister should at the very least consider a reporting and monitoring requirement along those lines. I look forward to hearing her views on the probing amendment. If she is in favour of some ongoing monitoring of the clause, I shall be particularly interested to know what arrangements will be made to monitor the situation in Scotland.
We have already had a brief discussion about the different legislation that applies in Scotland with respect to social work issues. I wait to hear from the Minister the position regarding the Social Work (Scotland) Act 1968. I am sure that I will hear about that in due course. It would be important in any monitoring requirement to take into account the differing legislation in Scotland and to look in particular at what is to happen to children in the more extreme cases. How long will they be kept in care? If their parents ultimately go back to their country, what is to happen to them? Will they stay in care until they reach the age of majority? These issues are extremely important. I therefore support the basic thrust of the amendment. I look forward to hearing the Minister's comments.
Clearly, monitoring the implementation of the clause is extremely important. We need to be clear how it is working and that it is being applied consistently and fairly. I have said repeatedly that we do not want people to become destitute; we want those with no right to remain to leave voluntarily. We need to understand what is happening on the ground and assess how the clause is working, so we will collect information and evaluate its effect. I am quite sure that the issue will also feature in my regular discussions with both the NGOs and the Local Government Association. As I told the Committee, that process has already started.
We do not expect many, if any, children to end up in the care of local authorities, whether in England, Wales or Scotland. We want to monitor the numbers and to engage with local authorities on how exactly they will discharge their duties in those cases where, unfortunately, the parents have chosen not to leave the UK and that choice has resulted in some detriment to the children, but I do not think it sensible to introduce a statutory requirement for statistics to be published. I would rather assure hon. Members that the mechanisms already exist in legislation for that information to be provided to us from local authorities and we will produce those figures in our quarterly statistics on asylum.
It is important to note the contribution of my hon. Friend the Member for Cardiff, Central (Mr. Jones). We would not necessarily be talking about statistics on all those cases in which support was certified as being withdrawn, but on those cases, if there were any, in which a local authority had intervened. Hon. Members may wish to know that it is already an obligation on local authorities to inform the Secretary of State if a person has approached them for support.
I hope that hon. Members will be reassured that we intend to monitor the situation carefully. Certainly, in so far as there is an impact on the local authorities in terms of intervening in certain families as a consequence of parents' decisions, those authorities will be obliged to provide us with that information. The Government have agreed to fund the local authority costs in those circumstances, so the authorities will clearly come to us with the information, which we will produce with our normal quarterly returns.
I hope that the hon. Gentleman is assured that there is no need for the amendment, as the mechanisms already exist, and I have assured him that the information that we collect through those mechanisms will be published.
The Minister has been very helpful. I understand that the subject of the removal of benefits is to be added into the quarterly statistics that the Government already publish. However, one matter was not entirely clear. I assume that different organisations, such as local authority associations, would collect any data on children going into care. I suspect that it would be quite hard to transfer that information to the quarterly statistics, because of the involvement of another organisation. Will she give a commitment that the information on children in care will be put in the public domain in some form, albeit that it might not be via her Department?
As I explained, local authorities are now required to notify us should people in such categories approach them for support. They have to give us that information. If such rare circumstances arise, they will apply to us for the payment of costs. We will therefore have that information and those notifications; we will be prepared to produce the statistics on that.
I heard what the hon. Lady said, and no doubt when the Question is put she will vote accordingly. My remarks will be brief, as I have found it a helpful debate, and I thank the Minister for that.
I wholeheartedly agree with the proposition that people who should not be here and who have exhausted the legal process should not be entitled to support from the state, as do all Conservative Members.
The debate has been useful, as we have been able to discuss different aspects of the clause. We discussed the timing and the service of the notice, the matter of children, statistics, hardship cases and difficult areas of judgment. We also had a fruitful discussion on the issue of appeals. I speak for my hon. Friends when I say how grateful we are to the Minister for her observations on the subject of appeals, and we look forward to hearing what she has to say on Report. Committee members have been able to raise their concerns, and by and large she has dealt with them well and courteously.
The debate has made us wiser about the contents of the clause. That is important, because decisions will be made, principally by officials, that will have a serious impact on people's lives. We would all agree that everyone under our jurisdiction should have the same fair treatment so far as the courts and the Government are concerned, whether or not they are our own nationals. With that, I conclude my remarks on clause stand part, and I repeat my gratitude to the Minister for the helpful way in which she responded to many of the concerns expressed.
This has been a good, positive debate, and there is much to welcome in the approach taken by the Minister. It is particularly important to have a greater understanding of how the process of notification will work. The discussions that are taking place with the local authorities are welcome , and as we draw to a conclusion during the coming weeks I hope that the Minister will be in a position to give us more information on how those discussions with local authorities are going.
It would be helpful if, during the proceedings, we have as early an indication as possible about the time scale involved in the letter and interview process, but I welcome the Minister's assurances that the interview will take place at an early stage. That is important, and I am pleased that she has picked up on suggestions concerning copying in the certificate to legal representatives. That gives me great reassurance. Although I do not necessarily agree with the Government's approach, they clearly intend to implement it with care, thought and some element of compassion.
I am unhappy that the Minister has confirmed this morning that it is the Government's intention not only to take away benefit from parents but to take it away specifically from children. The Government could have argued that the taking away of benefit from parents was the deterrent, while retaining benefit for the children would have been the compassionate part
of the policy, but the Minister clearly believes that benefit has to be taken away from the whole family. I am unhappy about that.
I strongly welcome the suggested draft changes to the appeal procedure. I was unhappy that there would be a different appeal procedure for the class in question than for others. Perhaps the Minister would clarify how she would examine the appeal system in relation to the narrow issue of the mechanics by which the certificate was issued. I wonder whether there are any lessons that can be learned from the changes in the operation of the system of removing benefit in other classes, and whether she envisages making changes for those classes as well as the fifth class.
I entirely understand, and agree with, the Minister's point that the appeal on the issue of the certificate should not be used as a delaying tactic, and should be a different issue from the enforced removal. I favour forced removal as the best route, so I am entirely agree that the issue should be separate. I want there to be a right to appeal on the mechanics of the certificate, but accept the point that the removal process should continue, and that the one should not interfere with the other. I hope that she will come back to me on that at some point.
I gave two examples of where a difficulty could lie. One concerned an appeal because of circumstances changing in the country of return. The Minister satisfied me on that, and said that there would still be a route of appeal through other mechanisms. On the question of the child in hospital, the Minister needs to demonstrate under which procedure there would be an element of appeal.
That said, we have long felt that the new provisions are not the most sensible route to go down. However hard, we feel that the knock on the door at four o'clock, which the Minister said was horrible and nasty, is still a better route than the any of the ones the Government are now exploring. On that basis, we have a major problem with the clause. I do not know how the Conservatives will vote on it. I suspect that they will vote against it, because their leader made such an enormous fuss on the issue. [Interruption.] I am sure that he has asked them to vote against the clause. It will be interesting to see how they vote, but we shall certainly vote against the clause.
I accept and understand a lot of what the Minister has said about the clause. The intention is that we shall rarely get to the point where support is withdrawn from families with children. Information will be made available at an early stage of the process to families who might be affected. I am glad that she heard what was said to her recently about providing information in a variety of languages early in the process. It is important that people clearly understand what might happen to them, and that there is an interview at an early stage. I thought that what she said this morning about the possibility of an appeals process was interesting, although such an appeal would be extremely limited in scope. I understand why she said that that would not reopen the asylum process itself. I suspect that the appeal will be entirely to do with process. Even so, it is important that there should
be safeguards against the processes going wrong—people not having been sent letters, not receiving letters and so on—so that is welcome.
It has always been my view that the power to withdraw support would end up being used sparingly. Under the 2002 Act, there is the power to withdraw support if removal directions are not complied with. I have not seen any evidence of how much that power is used. I have tabled a parliamentary question on the matter and I am waiting for the answer. My suspicion is that the power has been used sparingly. I cannot recall a case of someone who has had support withdrawn because they have not complied with removal directions.
There is therefore a question about that power. Is it not working, and if not why not? Is it used, and if not why not? If the power is not used or not working, that ought to be justification for putting such a power into operation earlier in the process. That is what the clause does. I hope that we see evidence about the existing powers and the problems with using them before we have to make the final decisions on the Bill. Not complying with directions seems a clear-cut point, with absolute evidence.
I understand that the Home Office has difficulties when people whose asylum claims have failed do not comply with removal directions. As has been mentioned, frequently nothing happens to enforce such directions. There is a complete dislocation between Home Office decision making and its enforcement. That applies not only to families with children, who are affected by the clause, but more widely. That is part of the problem: if nothing happens when a decision is made—an asylum claim has been refused, an appeal lost and the end of the line reached—people will think that nothing will happen. It is then highly unlikely that they will return home voluntarily or co-operate with removal directions.
I suspect that there are many people who know someone else who has been in their position—of losing their claim and their appeals—and who know that the norm is that nothing happens. If we want to address the problems with process, that has to be dealt with.
Some of us are seen as defenders of the rights of asylum seekers and critical of the Home Office, but we have to be prepared, as the hon. Member for Winchester was, to answer the question about what we would do. It has to be clear that something happens at the end of the process, particularly if one is satisfied that an efficient and fair decision has been made. The decision must be enforced. I have no problem whatever in accepting that. Enforced removal is an unpleasant and nasty business—the Minister spelled out on Tuesday just what it could imply—but we must face and accept the fact that nasty things may occur. The question is whether enforced removal is worse than what is being proposed.
The view of the United Nations High Commissioner for Refugees on removal is that, if people have to be returned, it should be done in as humane a manner as
possible, and specifically with the best interests of the children as the primary consideration, and that returns are likely to be durable and sustainable if they follow genuinely voluntary decisions that occur under safe conditions, especially if there has been some material support in the country of origin.
I had the experience some years ago of visiting families in Pristina who had returned voluntarily after being accommodated in Leeds as part of the humanitarian evacuation programme from Kosovo. At the end of the programme, they had been given counselling and some support, and it was possible for a member of the family to go back to see what was actually happening in their country. That was done in some cases in Kosovo and in Afghanistan, and it still happens on some occasions. We ought to pay more attention to beefing up the process of helping people to return and getting them to understand how they might be helped to do that.
Various children's organisations have concerns about the consequences of clause 7; for example, whether children will be abandoned. I suspect that people who reach a point where they are faced with the choice of their children going into care in the UK may well take it if they believe that it would give their child a better chance in the future. Some evidence from the unaccompanied minors who come into the country, particularly from certain parts of the world such as the former Yugoslavia, supports that argument. Children are coming from Kosovo, Albania, Bosnia and Serbia because their parents believe that they will have a better future in the UK than in their country of origin. If we know that that is happening, we should not be surprised if people who are faced with their child being taken into care at the end of the process feel that that might be the best thing for them. That will happen in some cases.
It is also likely that some people will simply disappear, and that some families will end up on the street. As I said, I fully accept that the Minister's intention is to use the power sparingly. I believe that, because of the evidence of what has happened with the existing power in the 2002 Act. The fundamental question is what sort of system we want to operate. Should we be aiming for systems whereby decisions are made fairly and efficiently, and are then enforced—whether they are positive or negative—or systems that rely on deterrence? That is what we are getting into: we are creating a power that could have significant effects on the family and the children, and using that as a deterrent.
I listened to the Minister's comments. She has said some positive things about how that power is intended to operate, and in particular about what she will examine before Report, such as safeguards and appeal rights. When we get to Report, I will examine the clause carefully and assess whether it has changed into a form that can be supported. That is something that I will still have to be convinced about at that stage.
I listened with great care and attention to the hon. Gentleman's remarks, and I largely agree with him in the detail of what he said, and the general thrust of it.
Having listened to this part of the debate, I have reached the conclusion that the Government have moved some distance. However, I do not want them to become complacent; I want them kept under the cosh. The threat of a vote against the Government from one Conservative Back Bencher on this Committee will probably not terrify the Home Secretary. He has been rude enough about me in public, and I dare say that he is even ruder about me in private. I do not think that he is too bothered about what I think. Indeed, on one occasion on the Floor of the House he said that he did not ''give a toss'' about what I said. That seemed to me to demonstrate the level of thinking that he occasionally brings to such matters.
That said, I think that there are two ways of trying to persuade even this Government. One way is to stand on their lawn and chuck bricks through their front windows, and to enjoy the sound of the tinkling glass and the consternation of those inside. The other is to try to get inside the building to have a civilised discussion with them about how to make progress.
On some issues—I suspect that we will come to those later—it may be that only the demolition of the building will do the trick. However, on others—what I would term the ''clause 7 issues''—it is still open to me to remain on the lawn and to shout through the window, ''Can I come in?''
If the Government Whip wants me to vote against him, he is going the right way about it. If he wants me to suspend my judgment for the moment, I will hold my fire: I am prepared to do that while the Government listen carefully to the representations made not only in Committee but between now and Report. I see that my rocket Friend wants to talk.
The fire and the rocket fit well together, do they not? I wondered whether my hon. and learned Friend might care to speculate on who had been shouting from inside the building. We have heard the Minister being very reasonable today, but I have speculated in the past that perhaps it was No. 10 that spread the rumours that every child was going to be taken into care. Does he concur that it was No. 10, or does he have another view as to who has been shouting from inside the building and got that message over, which the Minister assures us is so misunderstood?
The Prime Minister is in enough trouble without my adding to his problems by speculating about what he thinks, if he thinks, what he said, and when he said it. I will leave that to others. Despite the tempting siren voices of the Liberal Democrats on this Committee, I shall not vote against the Government on this occasion—although I shall certainly not vote for them. I shall behave like a true Liberal and wait to see what happens.
I am disappointed that the hon. Member for Perth, who tabled amendment No. 75—which was not selected today—was not able to speak to it. I am sure that her thoughts would have been illuminating. Her comments at the beginning of the
My views on clause 7, and the reasons why I hold them, are clear to every member of this Committee. If the hon. Gentleman does not understand those views, that is a matter for him. I recall that he was absent at the beginning of the debate on clause 7, and that might partly explain his lack of understanding of my position.
There has indeed been a lack of understanding. I fully understand the view that the hon. Lady and her party take. I am under no illusions and know exactly what the SNP's position is: to say whatever it thinks the public want to hear. That is a perfectly acceptable position for an opportunistic party. When it comes to opposing clause 7, there is her personal view, expressed many times before—she has been consistent—that asylum and immigration policy should be devolved to the Scottish Parliament. You have heard so many funny stories this morning, Mr. Taylor, that I will not pursue that one. The idea of devolving asylum and immigration is bizarre. It—
We must consider the title of the clause, which refers to ''Failed asylum seekers''. There is another name for failed asylum seekers: illegal immigrants. Let us consider the technical definition. If someone comes into this country as an asylum seeker, makes a claim, and that claim is rejected, they are in the country illegally. Presumably, the hon. Lady believes, as she has said before, that any illegal immigrant in this country must be able to claim benefits in perpetuity, regardless of circumstances and the amount of co-operation that the family gives to the authorities. Since she has not intervened, we can assume that that is the case.
I am interested in the thrust of the hon. Gentleman's comments. I thought that we were supposed to be talking about clause 7. Whether the diatribe against the Scottish National party in the context of clause 7 is in order is a matter for the Chair.
The key issue in relation to clause 7, as I have stated on many occasions in this debate, is that, ultimately, in some cases—the hon. Member for Walthamstow (Mr. Gerrard) discussed this extremely well—it will mean that children will be taken into care. The children, who
are innocent, will be punished for the actions of their parents. Does the hon. Member for Glasgow, Cathcart support that position?
The hon. Lady knows that, despite the hysteria of the newspapers and the Leader of the Opposition, there is no provision for taking the children of asylum seekers—sorry, illegal immigrants—into care. That is a red herring, and she knows it. She accused me earlier of being defensive about the SNP. My comments about the SNP are not based on defensiveness. I just have a taste for shooting fish in barrel-shaped objects.
I expect that the hon. Member for Woking will lead his party colleagues in supporting the Government on clause stand part, on the basis that the reservations that his leader had about the Bill when he first raised the matter in the debate on the Queen's Speech were based entirely on newspaper reports, which suggested that the Bill would contain provisions for taking children into care.
The sensible reservations that the leader of my party had were in response to briefings that were coming out of Downing street and other parts of the Government machine to the effect that children would be used as a weapon. He rightly took great exception to that. I am grateful to the hon. Gentleman for his guidance on which way we should vote. We have expressed our reservations, but I wanted to put the record straight on that point. I know that the matter is not referred to in the Bill.
Thank-you, Mr. Taylor.
The hon. Member for Perth raised an objection to the idea that the actions of parents should have consequences. The point of opposing clause 7, which has caused a great deal of debate in the press, is that no matter how parents behave, it should have no consequences on the children. I find that absolutely objectionable. I am a parent and know that I have certain responsibilities to look after my child—and, in a few months, children. I do not see why we should step back from expecting the same standards of everyone in this country, regardless of their position. We are talking about people who have claimed asylum but have been told that their asylum claim is not justified and that there is no legal reason for them to remain in the country, yet the position of the hon. Member for Perth is that no consequence should derive from that irresponsible behaviour.
The Government are saying to such families, ''We will make it easy for you to be removed from the country. We will even supply money to help you to relocate back to your own country. We have looked at
your asylum claim. We don't believe that it is valid, but we will arrange for you to be taken home.'' The family says, ''No, we refuse to co-operate, even though our asylum claim is not founded. We demand that the benefits that we have been claiming be continued in perpetuity.'' That is not a reasonable position, and because it is not reasonable, I am not at all surprised that the hon. Lady and her party support it.
I find this debate illuminating. A friend of mine in the Scottish National party said to me some time ago that the relationship between the Labour party and the SNP in Scotland was similar to that between the two major parties in England and the Liberal Democrats. I had not really understood what he meant until this morning. There was some illuminating bitching on both sides. I feel that I have had quite a political education.
Thank you, Mr. Taylor. I shall observe your strictures and make no further mention of the Scottish National party, and in particular, no mention of the hon. Member for Moray (Angus Robertson) who invited me to his constituency where 50 per cent. of all Scotch whisky is produced. I will not digress further but return to clause 7.
We had a number of interesting invitations from the hon. Member for Glasgow, Cathcart and the hon. Member for Winchester about how Conservative Members should vote on the clause. I have not served on that many Standing Committees, but my understanding of voting for a clause to stand part is that one wants a clause to be part of the Bill as it stands.
I listened with great interest to what the Minister said and thought that she made constructive comments. If legislation could generally be discussed in the civilised and reasonable tone that she used today, we would do a lot better. One of the depressing things that I read over the Christmas break about the way in which Ministers often react to Bills in Standing Committees is that they want their Bill and nothing but their Bill. It does not sound to me that the Minister is doing that at all—quite the contrary.
Subsection (3) says:
''No appeal may be brought under section 103 of the Immigration and Asylum Act 1999...(asylum support appeal) against a decision —
(b) on the grounds of the application of a provision of that Schedule, to stop providing support to a person.''
The Minister said that she is thinking of changing that position. That is interesting. It requires reflection by all sides. I think that I would be reflecting the view of all of my hon. Friends if I said that—
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half past Two o'clock.
Harris, Mr. Tom
Jones, Mr. Jon Owen
Turner, Mr. Andrew
Williams, Mrs. Betty