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New Clause 3
International obligations
. No power conferred by this Act on the Secretary of State shall be exercised in circumstances where the exercise of the power would be in breach of an international treaty or obligation to which the United Kingdom is a party.'.-- [Mr. Darling.]
Brought up, and read the First time.
Mr. Alistair Darling (Edinburgh, Central) : I beg to move, That the clause be read a Second time.
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Mr. Deputy Speaker : With this it will be convenient to take the following : New clause 6--Interpretation--( ).--(1) In the interpretation or exercise of any provision or power in this Act regard shall be had to the Convention, the Handbook on Procedures on Criteria for Determining Refugee Status as published by the United Nations High Commissioner for Refugees from time to time and the European Convention on Human Rights which came into force on 3rd September 1953.
(2) Where any provision of this Act appears to be inconsistent with the matters set out in subsection (1) above, the Conventions and Handbook shall prevail.'.
Government amendment No. 25.
Mr. Darling : New clauses 3 and 6 and Government amendment No. 25 have a similar effect. In Committee, we were anxious that, when it came to interpretation, regard should be taken of the United Nations convention on refugees and, in particular, the United Nations handbook on refugees which is published for the guidance of those who interpret that convention. There was much debate on that subject and the Minister undertook to reflect on the issue and decide whether the Bill could be suitably amended, and I am glad that he has. Government amendment No. 25 states that
"nothing in the immigration rules (within the meaning of the Immigration Act 1971) shall lay down any practice which would be contrary to the Convention."
I am pleased that the Government tabled the amendment, which means that the legislation will be justiciable so that matters relating to asylum or, more importantly, interpretation and the provision of immigration rules--whether procedural or substantive--would allow an aggrieved applicant the opportunity to argue his case before a court. As we said in Committee, it is certainly our view--and I think that it is the view of the hon. Member for Caithness and Sutherland (Mr. Maclennan)--that a declaratory statement of this sort, as well as being novel in our legislation, would be welcome. I am grateful to the Minister for having made the concession.
I do not want to press new clause 3 or new clause 6 to a Division, or to detain the House on this group of amendments. It might be more useful to discuss some of the matters relating to the interpretation of the rules, and we shall have an opportunity to do that in the debate on the next group of amendments.
Mr. Maclennan : I should like to thank the Minister for the Government amendment. It is a useful attempt to deal with a point that I raised in Committee--the compatibility of the immigration rules with our international obligations, particularly those under the international convention. However, I am not sure that the drafting of the amendment is entirely felicitous. The new provision could be understood as indicating to a court that the intention was that the immigration rules should conform with the provisions of the convention. I am afraid, however, that a slightly different interpretation might be placed upon the language : that the declaratory intention has not necessarily been given effect and that the rules themselves will take precedence over the statutory provisions. I hope that I am wrong. It may be that if the rules were independently adjudged to be contrary to the convention the Government's proposed provision would be binding and that the rule would be invalidated. No doubt the Minister will want to deal with the point.
Parliament cannot bind its successors, but in this respect rules that do not have the full force of law as
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prescribed by Parliament may be somewhat different. In other words, I am not sure whether, if there were a conflict between the convention and the rules as amended, the rules would prevail or whether this provision would ensure that they did not.Mr. Ivan Lawrence (Burton) : I welcome amendment No. 25 very much because it makes clear beyond doubt that there is no basis of any kind for the various scurrilous newspaper articles suggesting that genuine refugees might be sent back, in breach of United Nations convention obligations. I should like to quote from an article by Caroline Moorhead in The Independent of 18 November. It set off a flood of letters attacking the Government for their inhumanity. The letters, some of which have reached me, are completely without foundation, as I hope my hon. Friend the Minister will indicate. Caroline Moorhead, in her article, says :
"At least 2,000 victims of torture who have managed to get temporary permission to remain in Britain are faced with deportation--and possible further torture--if the Asylum Bill becomes law."
The article goes on to say that if the Bill is passed those who have been granted exceptional leave to remain in the United Kingdom "can, in theory, be picked up, detained and deported." The writer of the article appears to rely heavily on advice given by the Medical Foundation for the Care of Victims of Torture, which says that the Bill poses grave dangers. The article goes on : "Precisely what form it will take is not clear, since no attempt has been made to spell out the Bill's consequences. But inherent in its proposals is the possibility that people who fled their country after persistent brutality may again find themselves facing it." Later the article says :
"Since it is planned to make the legislation retrospective, and most of the foundation's clients are on Temporary Admission or Exceptional Leave to Remain, there is hardly a person on its books not at risk of deportation."
Mr. Darling : I welcome the hon. and learned Gentleman's contribution. He looks as though he has just returned from a busy day in court. Does he accept that the article from which he has quoted was written before the Government tabled their amendments? Those amendments meet some of the points that the article makes. However, the author of the article cannot be faulted for having raised these concerns. None of the matters had been discussed in Committee, let alone on Report.
Mr. Lawrence : I am grateful to the hon. Gentleman for making that point. However, the letters to which I have referred are still circulating. It appears that the message that went out during the Committee stage has not reached the people who seem to be very concerned about the matter. That being the case, it is all the more important that we take this opportunity to send the message loud and clear to everyone. Everybody has the highest regard for the Medical Foundation for the Care of Victims of Torture, which does exceptional work. I am sure that all its intentions are good, but it does not seem to be above a little bit of scurrility.
I hope that my hon. Friend will take this opportunity--undoubtedly the umpteenth, as has been indicated--to make several points. First, he should make it clear that the immigration authorities give the most scrupulous
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attention to the opinion of the foundation that any person is a genuine refugee and would refuse to accept its advice only if there were cogent evidence to the contrary.When I raised this matter with the Department early in December I was given an example of the kind of case in which the advice of the medical foundation was not taken. The House may be interested in that example. It concerns a Zairean asylum seeker who claimed to have been severely beaten while in detention. The foundation's report concluded that scars on his body were entirely consistent with that claim. The Home Office commissioned independent medical advisers, who said that there was clear evidence that the applicant had been physically maltreated but that there was no particular evidence that the maltreatment had occurred recently in Zaire. There was some ambiguity about the medical evidence.
The immigration authorities, however, considered the story implausible for other reasons. In the luggage of the asylum seeker, who claimed that he had been tortured by the Zairean authorities, were five blank Zairean birth certificates bearing official signatures and an incomplete and unsigned Zairean passport in a name other than his. That seemed to suggest skulduggery rather than that the person was a genuine asylum seeker. Notwithstanding that, the applicant was granted exceptional leave to remain. The Department made it clear to me, however--and this was probably good sense--that he was given exceptional leave not solely on the basis of the medical evidence.
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Secondly, will my hon. Friend confirm that, where there is evidence of recent torture, a person will be treated as a genuine asylum seeker ? If scars are so old that they cannot have been caused recently by the regime against which a person is complaining, or if there are other reasons to doubt whether the scars were caused by torture, as opposed to a fight or personal dispute, it may be another matter : the person may not be in genuine fear of persecution. I do not think that we should rule out the reasonable consideration of all the circumstances.
Thirdly, will my hon. Friend confirm that no refugee who has been given leave to stay in the United Kingdom for humanitarian reasons will be placed at risk of deportation as a result of the Bill ? Finally, will my hon. Friend confirm that the article to which I alluded is misleading about the Government's approach to the political activities of asylum seekers? Of course asylum seekers have the right to free speech and political association, just like everyone else in this country, but I hope that my hon. Friend the Minister will reiterate the point that, if someone who has absolutely no history of political association stands up in front of a camera and says something offensive to the regime back home, for the sole purpose of being able to say, "I cannot go back because I have offended the regime," he is making a mockery of the rules. Only in those circumstances have the Government said that the way in which a person makes such statements and assertions can and should be taken into consideration before a final judgment is made.
I am delighted that hon. Members on both sides of the House seem to agree that the kind of criticism levelled against the Bill before its Committee stage no longer has
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any foundation--if it ever did--and I hope we shall be able to make clear beyond peradventure the ridiculous nature of such scurrilous comments.The Government amendment seems to have everyone's approval. I hope that my hon. Friend will kindly confirm my assertions so that we can safely put to bed all the misrepresentations of the Government's intentions and so that we can all be happy.
Mr. Peter Lloyd : I do not believe that either the new clauses or Government amendment No. 25 are strictly necessary. The Government do not take on commitments that they do not, in good faith, intend to keep--nor do they exercise their commitments in a way that conflicts with our international obligations. It could be argued that there is a whole range of obligations relevant to the Bill besides the 1951 United Nations convention on refugees and the 1953 European convention on human rights, to which the new clauses refer. I suspect that if we made a list of them and inserted them into the Bill, the only practical result would be to provide pegs on which to hang more or less obscure arguments for judicial review. I do not believe that that would assist the asylum seeker with a well-founded fear of persecution. It would certainly complicate and delay the procedures for determining applications fairly that the Bill was designed to speed up.
We shall come to debate the International Labour Organisation convention and the European social charter in connection with the final group of amendments, so I shall not mention them now ; indeed, as the hon. Member for Edinburgh, Central (Mr. Darling) was brief, I shall not say a great deal more myself.
As the United Nations convention is central to the Bill, I undertook in Committee to consider transferring from the rules the words that make it clear that nothing in those rules--which have to be made under the Immigration Act 1971--shall lay down any practice that would be contrary to the convention. Amendment No. 25 does precisely that, and I am glad that the hon. Member for Edinburgh, Central welcomes it.
The hon. Member for Caithness and Sutherland (Mr. Maclennan) also welcomed the amendment in general, but asked me a specific question. I believe that his worries are unfounded, but I shall re-examine the amendment and make quite sure that it does what it is intended to do. I believe that the amendment means that any rule that was in breach of the United Nations convention would be ultra vires and that the court would rule it unlawful were it brought before it.
I welcomed the intervention of my hon. and learned Friend the Member for Burton (Mr. Lawrence) because he produced useful correctives to some of the things said by some groups, not least the Medical Foundation for the Care of Victims of Torture. My hon. and learned Friend referred in particular to the Moorhead article, which was deeply misinformed, caused a lot of unnecessary worry and work and wasted a great deal of newsprint.
My hon. and learned Friend wanted assurances on four matters--first, that the Government always pay close attention to the medical foundation's reports. I can assure him that we always do, but people can have marks or wounds on their bodies for many reasons and there can be various interpretations of the way in which they have come by them. We have to make our decision not merely on the basis of a report saying that the marks are consistent with
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one form of treatment but on the basis of the other evidence that we have about the antecedents of the particular individual claiming asylum.My hon. and learned Friend asked whether signs of recent torture could mean that the person was a genuine asylum seeker. I forget exactly how he worded his question. Signs of recent torture constitute very convincing evidence that someone is genuine, but, in deciding whether to grant asylum, we must ask ourselves whether that person has a well-founded fear of persecution if he returns home. The fact that someone has been deliberately injured by another person is not conclusive, but it goes a long way to establishing a claim if the other evidence suggests that he would have fear of persecution if we sent him back to where he came from.
It has been suggested--I believe in the article by Caroline Moorhead--that, because of the measures in the Bill, people who have been given leave to remain will be put at risk of being sent away again. Nothing in the Bill alters their situation. Those who have been given exceptional leave to remain must apply to have that leave renewed, but that happens under existing law. The difference will be that if, for some reason, that person's leave is not renewed--which would not be as a result of the Bill-- the Bill would ensure that he had the right of appeal to the special adjudication authority in respect to his turned-down asylum claim. That is the only respect in which the position of someone given leave to remain in Britain temporarily or indefinitely--certainly temporarily--can be altered, and it is a change to that person's advantage.
My hon. and learned Friend asked me how behaviour in this country could bear upon someone's asylum claim. A person's behaviour can bear only on his credibility, not on the objective question whether he has a well-founded fear of persecution if he were to return home. Often, those matters turn, at least in part, on the credibility of an individual. That credibility is certainly undermined if a person indulges in activities in this country which are inconsistent with his previous activities and are calculated to create for him an asylum claim or to enhance one that he already has. The matter goes to credibility ; it does not go to the final decision. Because it is a factor in credibility, it seems only fair and honest to say so in the rules.
There are few cases in which credibility is undermined in that way, but there have been a number in which people have no fear of asylum in the country from which they came but have engaged in activities here in order to construct such a fear because they wished to stay longer than their visitors' entry visas allowed. However, the measure will not be used to send people back to a country in which they have a well-founded fear of persecution.
Although the Bill is designed to make our procedures more efficient, it is predicated on the basis that someone who arrives here with a well-founded fear of persecution in the place from which he has come will find a safe haven. That is the intention of the Bill and that is why I am happy to introduce amendment No. 25, although, strictly speaking, it is unnecessary. However, it is a reassurance and a signal. If, by any chance, any Government should produce rules in conflict with the United Nations convention, they would have to amend this primary legislation before they could avoid a court striking it down.
Question put and negatived.
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New Clause 4
Procedure on rules relating to asylum
. The following paragraph is inserted after the second paragraph of section 3(2) of the Immigration Act 1971--
"No rule relating to asylum, or change in such a rule, shall have effect until the statement of that rule, or change in a rule, has been approved by resolution of both Houses of Parliament.".'.-- [Mr. Darling.]
Brought up, and read the First time.
Mr. Darling : I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Miss Betty Boothroyd) : With this it will be convenient to take amendment No. 1, in clause 1, page 1, line 22, at end add--
(3) The Secretary of State shall from time to time lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act, such rules to be known as the Immigration (Asylum) Rules, and the Secretary of State shall consult with, and have regard to the views of, the representative of the United Nations High Commissioner for Refugees in drawing up such rules.'.
Mr. Darling : Perhaps I may make two preliminary points. The new clause, together with amendment No. 1, bears upon the rules. Perhaps the Bill is unusual in that it depends on the Lord Chancellor's rules of procedure and the immigration rules to make it work. It was not surprising, therefore, that in Committee there was much discussion about the rules, as a result of which changes have been made. My first preliminary point is that it is extremely unfortunate that the revised rules--there are substantial revisions both in the procedure rules and in the immigration rules--were made available to members of the Committee only at 1 o'clock this afternoon. It follows, therefore, that my remarks may stand to be corrected, as I may have missed some points that I did not see in the comparison that I was able to make between the old rules and the new rules between 1 o'clock and 3.30 this afternoon. That is unfortunate. There is a duty on hon. Members to scrutinise legislation before it is passed into law. Fortunately, there is an opportunity in another place further to examine the rules as they bear upon the Bill.
My second preliminary point--the Minister might be more cheered by it--is that substantial concessions have been made by the Government. I regard that as a tribute not only to the argument that took place in Committee but to the substantive pressure that was brought to bear on the Government by the many agencies, organisations and individuals outside the House who were concerned at the Government's original proposals. Some of them, including the author of the article to which the hon. and learned Member for Burton (Mr. Lawrence) referred, played their part in making the Government think again.
I do not believe in unnecessarily using words such as "climbdown", "U-turn" and so on--I would not go that far. However, it is fair to say that the Government have brought forward the Bill in a hasty manner. Our debate about legal aid demonstrated that the Home Secretary and the Government had not fully thought out the implications contained in the Home Secretary's statement on 2 July last year, let alone in the Bill itself. It is noticeable that the trumpeting that took place last summer and last autumn, particularly at the Tory party conference, has not been repeated today because the Government know that they have had to change their mind on a number of significant
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points. We shall still seek to divide the House because, despite the many concessions that the Government have made, the Bill remains flawed in one or two essential respects.I shall deal briefly with the various papers that the Minister has been good enough to make available to members of the Committee. I assume that they are available to other hon. Members as well. I refer first to the Lord Chancellor's draft rules relating to procedure. The first concession that the Government have made--it is extremely welcome and it attracted much comment--was that applicants seeking leave to appeal now have 10 days to do so rather than the ridiculously short period of two days provided in the original rules. Paragraph 29 of the new draft provides that time limits in general may be waived, I think, on cause shown. That is an extremely welcome concession. It will undoubtedly remove some of the injustices that we feared would occur with individuals having only two days in which to lodge their appeals.
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Equally, I very much welcome the Government's change of heart with regard to oral hearings, up to a point. It is now provided quite clearly in paragraph 9 that hearings will be determined orally in two quite specific circumstances. However, there is still no right of appeal for applicants as such. There is only an entitlement to apply for leave to appeal. When leave to appeal is granted, an oral hearing follows, but there is no right to an oral hearing when arguing the point of leave to appeal. The two things are, of course, quite different.
I am pleased that the original paragraph 5(7) in the original rules, which required that the special adjudicator should grant the applicant leave to appeal unless he was satisfied that the applicant did not have an arguable claim for asylum, appears--at least from my preliminary reading at lunchtime time today--to have been dropped. I make that point because we argued strongly in Committee that, when considering whether an applicant has an arguable claim, it would be necessary to assess matters of credibility. Therefore, the Minister's point in response to the hon. and learned Member for Burton was crucial when considering the terms of paragraph 5(7) of the old rules.
However, it would appear that in the new rules paragraph 5(7) is not replicated in its original form. If that means that there is a different onus on the special adjudicator, it is to be welcomed. As I have said, that point will require further consideration--I hope that it will be in another place--because I have not had an opportunity to consider whether in the fine print of the rules there is some further qualification.
The amendments to the Lord Chancellor's procedure rules are welcome. I am sure that those who have brought pressure to bear on the Government will be pleased that some changes have been made. On the draft immigration rules and the revision that was published today, again substantial concessions have been made, although questions remain. When considering credibility, the first thing that has to be said is that, in the original rules, the Home Office had to consider a number of factors such as the failure of an applicant to apply for asylum immediately on his arrival in the United Kingdom, whether false representations were made, and whether--it is an important point--documents were destroyed,
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damaged or disposed of. We cited the example of the Kurd fleeing Iraq, who would not have arrived in this country with proper travel documents because he would never have got out of Iraq if he had had such documents. I am pleased that the Government have now included an important caveat, which is that, if no reasonable explanation is adduced, such matters may affect an applicant's credibility ; in other words, it appears that the applicant for asylum has an opportunity to explain why no immediate claim was made or why the documents were destroyed or damaged. That concession is important. It is important to note that the interpretation of the rules will be crucial. Although the Minister has published a guide to the Home Office procedure--I am bound to say that it is more like a tourist guide to the Home Office rather than a detailed examination of the standing orders--I hope that, once he has a final draft or the actual standing orders given to those who interpret the rules, he will make them available. Although the changes that the Government have made are very welcome, or at least appear to be so, the interpretation will be crucial.The point is important when one examines the new paragraph 6(d) which deals with those applicants for asylum who undertake any activities in this country which might be calculated to enhance a claim for asylum. The Minister and the Home Secretary graphically painted a picture of someone who had never any intention of applying for asylum but who, deciding that this was the best avenue for extending leave to stay in the country, would appear in front of the television camera, denounce the Government of the country from where he came and then seek asylum.
The Government have now changed the paragraph to qualify it to the extent that the behaviour must be inconsistent with previous beliefs and behaviour. That is welcome, but I should like the Minister to tell us how we judge whether it is inconsistent. It is clearly a matter of judgment. Any of us who have even a modicum of experience of these matters will know that much depends on the individual officer in deciding whether such and such an expression might be consistent with beliefs.
For example, I might hold very strong beliefs about something but might never say anything about it. Then one day I am moved for one reason or another to make a public utterance. Someone judging me could say that I had never said anything in the past about these things, whereas I could have said things privately or things that had never come to public notice. It would, therefore, be helpful if the Minister could let us know what guidelines for interpretation are to be applied to the provisions of that subclause.
Equally, I am pleased that the blanket statement that the actions of anyone who appeared to act on behalf of an applicant could be held against the applicant has now been removed, and it is clearly stated that it has to be the actions of anyone acting as an agent. However, one or two problems remain, one of which I would like to deal with. I am not certain whether the influx of Albanian refugees or those who purported to seek asylum in Italy is likely to be replicated in the United Kingdom because of our geographical position, but the same thing may happen on a small scale : we have had experience of groups of 10, 20 or 30 applying. I am concerned that paragraph 9 of the revised rules still seems to provide that an assessment can be made of one individual and the outcome of that assessment will determine the applications of the rest of the
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group. That does not seem to me to be desirable, but, rather, fraught with dangers. It is one of the flaws that the Government must tackle. Presumably these draft rules will have to be further revised because they must be approved by the House, but I should like the Government to think about that.Similarly, on the question of the third-country cases, the Government have made an improvement in the original provision, but there is still this concern about the interpretation of a safe third country.
I have not dealt exhaustively with these rules because it is impossible to do so on Report, but I thought it right to highlight some of the problems which I expect and hope will be addressed in another place.
The Minister has also been good enough to have published the proposed procedure for dealing with asylum applications. The more I read it, the more it appeared not to be guidelines that would be issued to the immigration officers and the Home Office staff who will deal with these things but more the sort of glossy publication that one might find as a guide to the Home Office and how it works. My hon. Friend the Member for Islington, North (Mr. Corbyn) asked for this to be made available and he may have something more to say about it.
One thing struck me in paragraph 9 which has some bearing on a later group of amendments dealing with housing : it still makes the point that there may be some delay before asylum applications reach the asylum division and are recorded, and that has some bearing on whether an individual ought to be housed under clause 3 of the Bill. Perhaps the Minister will take the opportunity to talk about delays which are, in some people's view, endemic in the Home Office and which, when they affect an individual, are a serious matter. Something also ought to be said--because it has a direct bearing on the terms of this amendment--on the political asylum questionnaire that the Minister has made available. I had the opportunity of looking at one of these, perhaps in a slightly different form, when I visited terminal 3 at Heathrow a couple of years ago. My only concern is that the questions are fairly general. When I watched an officer going through an applicant's form with him, he stuck rather rigidly to the questions ; where one answer came up that did not quite fit in with the question, the officer said,
"Well, the question does not say that so we'll just put Yes'."
Mr. Peter Lloyd : The hon. Member for Edinburgh, Central (Mr. Darling) will appreciate that the immigration officer is filling in a preliminary questionnaire to get some basic facts down, not as a member of the asylum division staff who is assessing a case. I just want to make sure that the hon. Member is distinguishing who he is talking about, because the immigration officer has a limited task which is to get some basic facts down.
Mr. Darling : I apologise. I was using the general term. I was surrounded by immigration officers that day. He was, as I understand it, a member of the asylum division. If the Minister doubts it, I am afraid that I did not ask him to identify himself with name, rank and number, but I was led to believe that that is what he was. I confess that my attention was more taken up with the form itself and with the exchange of questioning between the "officer", if I might call him that, the interpreter and the person seeking asylum.
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The central thrust of our complaint about the immigration rules--I suppose that it goes to the heart of one of our objections to the Bill--is that, contrary to what was said in the press release when the Bill was introduced, there is no right of appeal ; in fact, the right of appeal has been taken away from in-country people. The only thing that remains is the right to seek leave to appeal ; that remains in the rules, as I understand it. There is no oral hearing to be allowed, which is something that we argued for when arguing for leave to appeal.For that reason we believe that the rules are fundamentally flawed, but, as I indicated at the start, and having entered the caveat that I must enter in case I am faulted later--that the opportunity to look at these rules was substantially less than we should have liked--it appears that the Government have accepted many of the criticisms that were levelled at them, and even if I had any doubt about that from my reading of the rules I think that my assertion would be greatly supported by the fact that the Home Secretary is not proposing to speak on the Bill. That speaks eloquently of the extent to which the Government have changed their minds since the Bill was introduced last year.
Mr. Peter Lloyd : I am sorry that the hon. Member for Edinburgh, Central (Mr. Darling) and the House did not have the revised draft rules earlier. I produced the original draft rules in time for First Reading. They have been revised extensively in the light of what was said in Committee and other comments upon them and because of our own desire at the Home Office to make them clearer. This is a further draft, and I have no doubt that there may be further changes after discussions in another place and that we shall not get to a final draft until the rules are laid before the House in the normal way, when there will be the opportunity for the House to take a decision on them.
I am almost reluctant to mention new clause 4 because the hon. Gentleman said little about it. However, it would require a change to the rules relating to asylum to be approved by both Houses before those provisions could come into effect.
It would be unthinkable for the House not to have sufficient opportunity to debate and, if it so decides, to reject any changes in the asylum rules. That is why the Immigration Act 1971 requires the Secretary of State to lay before Parliament a statement of any changes in the immigration rules, leaving the House 40 days in which to debate them and, if it so desires, to reject them. If the House rejects the changes, the Secretary of State must lay before the House a statement making further changes. That provides an opportunity for the parliamentary scrutiny of changes to the rules while always allowing changes to be made quickly, where necessary. I shall make only the basic observation that since September 1990 there have been nine different changes in the immigration rules, but the Opposition have asked for debates on none of them.
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Mr. Darling : To be fair, and for the benefit of those who follow the proceedings in this place, may I point out that many changes to the immigration rules are minor and uncontroversial? I am sure that the Minister will recognise that it is only when matters of substance need to be debated that we request and get debates. Changes to the
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immigration rules may involve adding or deleting a country from a list, which is not always a worthy reason for detaining the House for an evening's debate.Mr. Lloyd : That is perfectly right and that is what I would have gone on to say, but the hon. Gentleman has put it very well. I wish, however, that he would talk more about his new clause, which requires that there should be such a debate before any changes could be effected. The Opposition were, of course, right not to press for debates on minor matters, but they are introducing provisions that require a debate before any changes can be effective. They have the opportunity to ensure that there is a debate within 40 days of the introduction of any such changes.
I turn now to the hon. Gentleman's questions about the further revisions to the rules of procedure and to the immigration rules themselves. I am glad that he is pleased with the changes. I do not want to undermine his satisfaction and, because he was generous to me, I shall not argue with him much about the fact that fundamental changes have been pressed upon us and that he does not intend to press us as far as his right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) by suggesting that there has been a climbdown. When he reads the rules, he will see that, in principle, they remain as they were before, except in areas on which we specifically consulted.
I refer to the length of time that somebody has to ask for leave to appeal. That was always a matter for consultation and we have changed the provisions to the 10 working days' requirement. That is the general requirement in the tribunal and special appellate system. The Home Office has sought to explain more clearly in words the original intention that was incorporated in the rules--to explain them more fully in cases where there has been misunderstanding, and generally to make the provisions clearer. In that sense, our discussions in Committee and the comments that have been made by those outside the House, especially the UNHCR, have been helpful.
As a number of areas on which I could comment are covered by later amendments, it would not be sensible for me to take up the time of the House with them now
Mr. Corbyn : The Minister has sent those hon. Members who served on the Standing Committee a consultation draft of the statutory instrument and the immigration rule changes. Although they require some study and application, we have now had them for only a couple of hours. Exactly what procedure does the Minister propose to adopt on the method of consultation? As far as I am aware, consultation has not taken this form previously for Members of Parliament. Is the Minister inviting representations from us now, or is he proposing that, following the representations, there may be a debate on a prayer not to agree the statutory instrument?
Mr. Lloyd : I am publishing them in draft to invite representations and comments from the House either now during the debate or from hon. Members after the debate or from organisations outside the House in an attempt to allow informed discussion in another place. We shall then produce another set of rules--possibly exactly the same, but perhaps containing further changes--that will then come before both Houses in the normal way for their approval. There is time for further representation--
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Mr. Lloyd : Not until the legislation is on the statute book, but not very much later than that date, which I hope will be within a limited period. This is not the end of the representation period. If the hon. Gentleman would like to consider the provisions further, he can then let me know his views. He does not need to feel that he has lost his chance or that he need detain the House this evening while he reads through them and cogitates.
The hon. Member for Edinburgh, Central referred to the "arguable claim" and to the fact that the adjudicator would judge, on the papers, whether there was an arguable claim. The hon. Gentleman was pleased that those provisions are not in the latest draft of the procedural rules. However, the paper that is attached to the procedural rules may have come adrift on his copy. That paper suggests that, as I said in Committee, I want to see that description reworded and included in the primary legislation because I believe-- [Interruption.] I shall show the hon. Member for Edinburgh, Central. It is here. So that there can be no misunderstanding, I advise the House that the phrase "arguable claim" has come out of the rules so that it can be included in the primary legislation in a different form.
I regret that I have been unable to produce that amendment for debate this evening, but we look forward to introducing it in another place. We shall seek to make it clear that, if the adjudicator believed every word of the case that was put to him by the appellant, he would have to acknowledge that that would be a claim that was at least arguable under the United Nations convention. The adjudicator makes his decision, not on the credibility of the applicant, but on the claim that the applicant has made to him. The adjudicator will say to himself, "Although I may not believe that this looks true and the Home Office is right to disbelieve it, if it looks true, that claim would be arguable under the United Nations convention, so I must have a full oral hearing."
That is how we filter out those manifestly unfounded claims in which there is no disagreement about the fact that the individual has come from a third safe country where his claim would be properly heard, or, as was mentioned on Second Reading and in Committee, those cases where by no stretch of the imagination could the United Nations convention cover that claim. I refer, for example, to the case of the woman who sought asylum because she said that her mother-in-law was interfering in her marriage so much that the marriage would break up if she and her husband were not allowed to come here to live. We are talking about a low threshold, but one which the Government believe necessary to filter out the manifestly unfounded claims. In fact, that threshold is much lower than the one that was produced by the Bar Council in the rather eccentric evidence and suggestions that it has sent to me.
Mr. Darling : Perhaps the Minister could tell us from where this information comes. He says that it is from a piece of paper that may have become detached from the papers that he sent us at lunchtime. The issue of what the special adjudicator has to decide is crucial. If the Minister is saying that that information is not in the rules, the draft rules or the Bill, but is on a detached piece of paper, he
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appears to be falling short of the standards that we normally expect from the Government. On what detached piece of paper is that information?Mr. Lloyd : I am giving the hon. Gentleman the piece of paper that I have detached, and he may read it. The hon. Gentleman should worry less than he does because the amendment that will be produced from that is not before us today. It will, I am afraid, have to be introduced in another place, but I did not want the hon. Gentleman to think that "arguable case" had simply been dropped from the rules. The Government propose to do what I presaged in Committee, which is to introduce an amendment into the primary legislation that will make it quite clear how low the threshold must be before the adjudicator can refuse the claim to appeal.
The hon. Gentleman raised several other points. On the question of credibility, he referred in particular to paragraph 6(d) : "that the applicant has undertaken any activities in the United Kingdom before or after lodging his application which are inconsistent with his previous beliefs and behaviour and calculated to create or substantially enhance his claim for refugee status." That, of course, is the kind of question--and there are many of them--that the asylum division has to answer in each case. It has to look at the totality of the claim, what the individual says, and all the available evidence so that it can make a fair decision that takes everything into account.
The rules indicate that these are matters which affect credibility, have always affected credibility and must always affect credibility--not necessarily deleteriously, because if there is a good answer it will explain the point. These matters are inevitably taken into account where the totality of a claim is being considered. It is only fair and honest that this be put down in writing and indicated clearly, and that it should continue to be the case, since some interested individuals, such as the hon. Member for Edinburgh, Central, do not quite realise that this is the case. We shall be coming later to a number of these points.
I cannot support the proposals tabled by the hon. Member and his hon. Friends. He did not give them much support himself. On the rules, I am glad that he is pleased with the changes that have been made. I hope that on further study, when he has had longer to look at them, he will be even more pleased. This is a second draft and we are still open to suggestions and criticisms. My aim is to ensure that the Government's original intentions come over clearly. I believe that the changes that we have made have helped and that the Opposition, although not assenting to them all, have found them more satisfactory. For that I am grateful.
Mr. Darling : I will not argue with the Minister's explanations. It really does not matter why the rules have been changed. I believe that, after further examination, further improvements will be suggested. Many of the changes are welcome, but there is much further to go. Incidentally, I said that I would not use the term "climbdown" with regard to the rules but I would not depart for one minute from what my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said about the Government's change of heart on the legal aid, advice and assistance scheme. That is most certainly a climbdown.
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