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Rogers, Allan

Rooney, Terry

Ross, Ernie (Dundee W)

Rowlands, Ted

Ruddock, Joan

Sedgemore, Brian

Sheerman, Barry

Sheldon, Rt Hon Robert

Shore, Rt Hon Peter

Short, Clare

Skinner, Dennis

Smith, Andrew (Oxford E)

Smith, C. (Isl'ton S & F'sbury)

Smith, Rt Hon John (M'kl'ds E)

Smith, Llew (Blaenau Gwent)

Spearing, Nigel

Steel, Rt Hon Sir David

Steinberg, Gerry

Stevenson, George

Strang, Dr. Gavin

Straw, Jack

Taylor, Mrs Ann (Dewsbury)

Taylor, Matthew (Truro)

Tipping, Paddy

Turner, Dennis

Vaz, Keith

Walker, Rt Hon Sir Harold

Walley, Joan

Wardell, Gareth (Gower)

Wareing, Robert N

Watson, Mike

Wicks, Malcolm

Wigley, Dafydd

Williams, Rt Hon Alan (Sw'n W)

Williams, Alan W (Carmarthen)

Winnick, David

Worthington, Tony

Wray, Jimmy

Wright, Dr Tony

Young, David (Bolton SE)

Tellers for the Noes :

Mr. John Spellar and

Mr. Jon Owen Jones.

Question accordingly agreed to.

Lords amendment No. 2 disagreed to.

Clause 3

Fingerprinting

Lords amendment : No. 3, in page 1, line 21, leave out ("an "authorised person", that is to say").

Mr. Charles Wardle : I beg to move, That this House doth agree with the Lords in the said amendment.

Madam Deputy Speaker : With this, it will be convenient to discuss also Lords amendments Nos. 4 and 5.

Mr. Wardle : The amendments to clause 3(2) are intended to make it clear that a child under 16 should be fingerprinted only in the presence of a person who is independent of the immigration authorities or the police and whose role it is to look after the interests of the child. The amendments provide for that individual to be the child's parent or guardian or a person who, for the time being, takes responsibility for that child. That would cover, for example, a local authority social worker, the child's legal representative, a relation other than a parent or guardian or a worker with a voluntary agency. The amendments make it clear that that person cannot be an immigration officer, another member of the Home Office or a police or prison officer.

I believe that the amendments meet the principal concern expressed in Committee in both Houses that the adult present should be seen to be independent of the authorities and responsible for looking after the child's interests.

Mr. Watson : The clause that provides for the fingerprinting of asylum seekers is one of the most objectionable in what Opposition Members consider to be a squalid Bill. It remains squalid despite the amendments that have been made in another place. It was of some consolation, but not much, that the clause was amended in two respects during its consideration in another place.

I was interested to note the clarification that the Minister offered about who might act as the adviser or friend to children who are asylum seekers. Although the Opposition welcome that clarification and the modest improvements that the amendments have made to the Bill, we do so not in the belief that they make the Bill acceptable, but that they represent the fulfilment of the

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commitments argued for and given by the Minister in Committee. eThroughout the Bill's progress, the Opposition's objections have centred on the fact that the very act of being fingerprinted criminalises asylum seekers. We have consistently argued in Committee, and in the House today, against that practice.

It is a long-established principle, certainly in Britain, that the only people who can be required to have their fingerprints taken are those who have been charged with a criminal offence. When people hear that someone is to be fingerprinted, it is certainly their perception that that person has committed a criminal offence. The fingerprinting of asylum seekers is objectionable not only for adults, but for children. That is why we have consistently argued strongly for the protection that is offered under the amendments.

I am not aware that even the Government have suggested that an application for asylum should be regarded as a criminal offence. The much maligned--and rightly so--hon. Member for Davyhulme (Mr. Churchill) would be happy to argue for that, however, should the Government decide to change their policy.

I am not seeking to make cheap points about the recent comments of that rather dishonourable Member. At this stage, he is an easy target, but we are entitled to know where he is today. Why has he failed to attend this debate so that he can discuss an issue that is, apparently, of great importance to him? If the matter is really so important to the hon. Gentleman, why is he not present? We must question his motives--he must have made the speech for his own gain. I tend to be a regular participant in such debates and I have not seen the hon. Gentleman participating, which makes his remarks all the more reprehensible.

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In Committee, my hon. Friends and I failed to convince the Under-Secretary of my objections to criminalising those who are fingerprinted, including children. Legislation already

exists--sections 27 and 61 of the Police and Criminal Evidence Act 1984 and schedule 2 to the Immigration Act 1971--to deal with cases in which it is believed that an asylum seeker may have committed a criminal offence. I am aware that we have covered that ground before, but it is important because all the arguments that we have advanced about the effect on adults of compulsory fingerprinting are multiplied several times in respect of children.

To fingerprint all asylum seekers, including children, makes an assumption of guilt. It assumes that everyone arrives at our shores with an ulterior motive--travelling under an alias, intent on making a bogus application and fraudulently claiming benefit. The underlying assumption is that no one is to be trusted and that, until they can prove their innocence, all asylum seekers are to be assumed guilty, at least in theory. Such a policy stands on its head what we have come to know as British justice--that one is innocent until proved guilty.

The Government have singularly failed to establish a convincing case for the need for blanket fingerprinting. We threw numbers at them in Committee and the Under-Secretary gave me some illuminating figures. He

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said that the total number of cases being investigated then--November last year--was 1,600 ; 11 had led to convictions, 16 were being prosecuted and 170 suspected multi-applicants had been served with illegal entry papers. Those figures are small, and become comparatively smaller when placed against the total number of 24,000 asylum applications received in this country last year. The Government cannot use the scale of the problem to substantiate their argument for the need for blanket fingerprinting. If that is true in general, it is even more valid in terms of children.

Members of the Committee were given much information by a number of organisations which serviced us effectively. One of the most illuminating pieces of information came from the Children's Society. It recently produced a document called "Nowhere to Go", which quotes from interviews with families from Somalia and Eritrea who have sought asylum in this country. I shall read out one moving comment made by the asylum seekers. I shall quote verbatim, which will account for the grammar.

In a description of the experience of being fingerprinted on arrival and its effects, the interviewees said :

"This is very disgraceful. Back home if you are a criminal then you put your fingerprint. But asylum seekers when we put our fingerprints on the paper and explain to the children we are putting the fingerprint. After some time when there is a picture on the television it is going to give the impression to the children My Mum she is wrong or my family are wrong. What did they do? It is something wrong'. So it's going to affect in terms of the mentality of the children. Because it shows on the television that if you do a crime you put your fingerprint and the children because of lack of knowledge of asylum seekers, they will think My father or my mum they are thieves'."

Those are the comments of people who have arrived in this country within the past year. I could give many more examples, but I do not have time to do so. The example that I have given underlines the way in which the people involved feel criminalised. Whether or not the Under-Secretary and his colleagues believe that the policy has a criminalising effect, those who are subjected to it, including children, believe that it does.

The way that fingerprinting affects children is the most serious aspect of the issue. It is a step further than the previous Bill on asylum was prepared to go, and it is certainly a step too far. In Committee, we charged the Under-Secretary with advocating a policy that would place the Government and the country in contravention of the United Nations convention on the rights of the child. Article 37(a) states that no child shall be subjected to "cruel, inhuman or degrading treatment."

If children are subjected to forced fingerprinting when they have just arrived in a strange country, probably do not speak the language and have suffered the traumas of which we heard in detail earlier, that certainly amounts to degrading treatment. It might also be termed cruel and/or inhuman treatment depending on the state in which the child arrived in Britain--that would be determined according to the individual circumstances. The policy would contravene that convention, to which the Government, on behalf of the people of this country, are a signatory. They have a duty to uphold all its articles.

The right of a child to be accompanied while being fingerprinted is important, which is why we argued for it. But why should that provision be limited to children under 16? The answer is not clear, particularly as elsewhere, such as in clause 5(5)(a), the Bill refers to children as those

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under 18. I hope that the Under-Secretary will explain why 16 should be the age to apply to fingerprinting but 18 should be the age in relation to housing and other matters. It is not clear why that anomaly exists--it may be a drafting error, or there may be specific reasons. I am sure that the Under-Secretary will enlighten us. It is not clear why any limits are set. In Committee, the Under-Secretary argued and, in another place, Earl Ferrers said on behalf of the Government that one reason why they were not prepared to accept any Opposition amendments about setting an age limit of 16, 14, 12, 10 or whatever was that one could never be sure of a child's age. If that is so--I do not accept that it is--why set an age limit of 16 for fingerprinting and an age limit of 18 for housing and other matters? If there are insuperable difficulties in ascertaining a person's age, we should be consistent and not set an age limit. I do not believe that it is impossible to ascertain someone's age, but my hon. Friends and I believe that fingerprinting people under the age of 18 is inappropriate and could be regarded as degrading and inhumane.

Section 50 of the Children and Young Persons Act 1933 states that a child under 10 cannot be presumed guilty of any offence, so no proceedings can be brought. The Police and Criminal Evidence Act lays down rules for fingerprinting children. Therefore, there are double standards on both counts--children under 10 cannot be charged with any criminal offence, yet, under the fingerprinting provisions, they are to be treated as if they were criminals. There are certain rules in the Police and Criminal Evidence Act and different ones in the Asylum and Immigration Appeals Bill.

Double standards are always unacceptable. To introduce double standards-- one for British citizens and one for citizens of other countries--is entirely unacceptable and inimical to the legislation that we should pass. The distinction is unacceptable under any circumstances and one of which the Government should be ashamed. Were it possible to shame or embarrass the Government into changing direction, that would have happened long ago, in respect of other legislation, not just the Bill.

I feel that the efforts that I and others of my hon. Friends, especially my hon. Friend the Member for Nottingham, North (Mr. Allen) have made during the Bill's passage have highlighted to the Government the Bill's shortcomings and its pernicious nature. Its insidious denial of human rights and its inevitable criminalising effect on adults and children are not offset by the inclusion of the amendments.

The Bill has been opposed root and branch from start to finish. It has consistently been seen by Opposition Members as seeking simply to restrict the number of people coming into this country without any understanding of the position in which they find themselves. We have opposed it, and it does the Government no credit. Our opposition to the Bill as a whole is in no way reduced by the fact that we welcome the amendments.

Mr. Maclennan : The hon. Member for Glasgow, Central (Mr. Watson) has eloquently described the background to the amendments. I simply wish to make it clear on behalf of my right hon. and hon. Friends that we regard the Government's modest concession--that children's fingerprints should be compulsorily taken only in the presence of their parents, guardians or those responsible for them when they are interviewed by

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immigration officials--as an improvement. It is certainly unsatisfactory that it has taken so long to extract such a modest improvement to the Bill from the Government. I greatly regretted the fact that the Minister earlier appeared, rather insensitively, to regard compulsory fingerprinting of children as no more horrifying than when they are fingerprinted in a pleasure park at their own instigation. The two are quite different, as I am sure he will, on reflection, agree.

This is a modestly humanising measure. The amendments reflect the fallback position that we advocated in Committee. Many of us felt that it was wrong to fingerprint children under a certain age ; but, as the Government are determined to persist, I believe that the amendments will help to remove some of the more frightening aspects of this physically intrusive compulsory fingerprinting of children. Question put and agreed to.

Lords amendments Nos. 4 and 5 agreed to.

Clause 9

Appeals from Immigration Appeal Tribunal

Lords amendment : No. 6, in page 7, line 21, at end insert : ("( ) In section 33(4) of the 1971 Act--

(a) for the words "in the case of an appeal to an adjudicator, the" there shall be substituted "an" ; and

(b) after the words "section 20" there shall be inserted "or section 9 of the Asylum and Immigration Appeals Act 1993".").

Mr. Charles Wardle : I beg to move, That this House doth agree with the Lords in the said amendment.

Madam Deputy Speaker : With this it will be convenient to discuss the following : Lords amendment No. 7, Lords amendment No. 8 and amendment (a) to the Lords amendment, and Lords amendments Nos. 9 and 15.

Mr. Wardle : This group of amendments extends the new avenue of appeal created by clause 9 from asylum cases only to all final determinations by the immigration appeal tribunal. That should be generally welcomed. It means that the opportunities to seek leave to appeal on a point of law to the relevant court will be available in both asylum and other immigration cases. I should perhaps confirm that nothing in the clause removes the availability of judicial review.

It may be helpful if I briefly explain the effect of the various amendments. Amendments Nos. 6 and 7 amend subsection (1), which creates the new avenue of appeal and removes the limitation to appeals in asylum cases. Amendment No. 8 specifies the appropriate court to deal with these cases. If the appeal was originally heard by an adjudicator in Scotland, the appropriate appeal court will be the Court of Session. In all other cases it will be the Court of Appeal. Amendment No. 9 amends the 1971 Act so as to provide that an appeal shall continue to be treated as pending while an appeal may be or is being brought under this new provision. That will protect appellants from being required to leave the United Kingdom during that stage of the process.

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As for amendment (a) to Lords amendment No. 8, the appeal system that the Bill provides for asylum seekers and the appeal system which already exists under the 1971 Act for other immigration appeals already provide a two-stage appeal--first, to an adjudicator, then to the tribunal. The Bill adds a further right of appeal, with leave on a point of law, to the Court of Appeal. Lords amendment No. 8 extends that to all immigration appeals, not just asylum cases.

Amendment (a) seeks to add one more layer to the process, by having the appeal from the determination of the tribunal go to the High Court. Cases that involve important points of law would no doubt go from there to the Court of Appeal, so we would have a four-tier system of appeals. The aim of the Bill is to provide an effective way of resolving disputed points of law arising from immigration and asylum appeals without needing to resort to judicial review. It is not a mechanism for drawing out the appeals process as long as possible. The view of the Lord Chancellor is that it is better to allow the appeal to go direct to the Court of Appeal and so to keep delays to a minimum.

There is nothing new in providing an avenue of appeal direct from a tribunal to the Court of Appeal. In general, when a tribunal hears appeals from another body, as the immigration appeal tribunal does, the avenue of appeal is to the Court of Appeal. Examples of such tribunals are the social security commissioners, the employment appeal tribunal and the lands tribunal. An appeal usually lies to the High Court when the tribunal takes decisions at first instance. Amendment (b) seems to be based on the belief that the purpose of providing the new avenue of appeal is to deprive people of the chance of judicial review ; not so. It is true that until now the only way of challenging a decision of the tribunal has been by way of judicial review and that it will now be open to dissatisfied appellants to seek to challenge disputed points of law by the more appropriate remedy of an application for leave to appeal to the relevant court. To the extent that that remedy is available, the use of judicial review to challenge tribunal determinations is likely to decrease ; but when a person seeks judicial review, it is entirely up to the judges to decide whether there is an issue that comes within their jurisdiction or merits leave to move for judicial review. Nothing in the Bill removes the availability of judicial review, nor is that the Government's intention.

Lords amendment No. 15 is an amendment to the long title of the Bill designed to reflect the amendments that have been made during the passage of the Bill. In its original form the long title states that the Bill restricts certain rights of appeal under the 1971 Act. We are now also extending the new avenue of appeal to the Court of Appeal to all determinations by the tribunal under the 1971 Act, and the new wording more accurately reflects the contents of the Bill. 6.15 pm

Mr. John Fraser (Norwood) : I am grateful to the Minister for telling us something about the amendments, and especially about judicial review. These amendments were slipped into the Bill late and with virtually no debate in another place. We therefore did not have the benefit of a detailed explanation.

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Our fear is that the amendments are more far- reaching and fundamental than their description in the other place would suggest--they were described as simply an extension of the right of appeal. Our fear remains that the facility of judicial review may in practice be limited by the amendments--in short, that there is a hidden agenda.

When the Bill left the Commons it included an appeal direct to the Court of Appeal in special ajudicator cases--that is to say, cases involving asylum. All other matters were still subject to review and appeal by way of judicial review. We were not happy with the Bill when it left here because we thought that the Court of Appeal pitched the process at the wrong level : it made appeals more extensive and complicated and it meant that cases were sent to a court that is already overworked and short of judges.

In another place and without debate, the arrangement intended for asylum cases was extended to cover all appeals, involving business people, wives, dependants, students and so on. The amendment, which look innocuous enough, may disguise a hidden agenda and reduce the possibilities of judicial review.

The divisional court applies two principles, among others, when it considers giving leave for judicial review. The first concerns whether an application is made within three months of the decision in question. Secondly, the divisional court tends to consider whether there is an existing right of appeal. It tends to refuse leave for judicial review when another avenue is open to someone--for instance, when a case comes before an adjudicator and there is a possibility of appealing to the immigration appeal tribunal, or when an immigration officer has made a decision and there is an appeal to an adjudicator.

In such cases, the divisional court tends to say that the matter is not appropriate for judicial review because other avenues are open. Even if the Government do not intend it, we are concerned that the effect of the amendments may be to cut out these avenues. Hence, to deal with a question of administrative law or impropriety, someone will have to canvass the issues before an adjudicator or the immigration appeal tribunal, but will be able to question them only when they get to the Court of Appeal.

I do not want to prolong the debate, but I have one question for the Minister which I shall preface with a preamble. The Bill incorporates the United Nations convention on the status of refugees, and the Government are a signatory to the European convention on human rights. In a new development, the European convention is expressly recited and adhered to in the Maastricht treaty, which the Government shortly propose to sign. My question is important whether appeals go to the Court of Appeal or to judicial review. Do the Government intend our courts to take direct cognisance of the European convention on human rights in deciding the validity of immigration rules, immigration appeal rules and the procedures before immigration appeal authorities?

Secondly, are the Government prepared to have ministerial decisions tested against the human rights criteria? The Government signed the human rights convention and are about to sign another treaty which expressly incorporates the European convention on human rights. Are they prepared to allow our domestic courts, whether the Court of Appeal or a judicial review body, to test what Ministers do and to test immigration rules and appeal rules against those criteria? If they are

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prepared to do that, how can the convention be applied if, in practice, judicial review is excluded because of the other appeal rights?

If the Minister is absolutely satisfied that there will be no interference whatever in the capacity to opt for judicial review at any stage of the proceedings, I shall be happy to agree to the amendments. However, if there is any risk in practice, whether or not it is a matter of law, or judicial review being curtailed, we would feel unhappy about the amendments.

Mr. Charles Wardle : I assure the hon. Gentleman that there is no hidden agenda. The fact that the European convention on human rights is mentioned in the Maastricht treaty will have no relevance to decisions by British courts on the matters that the hon. Gentleman outlined.

Question put and agreed to.

Lords amendments Nos. 7, 8, 9 and 15 agreed to.

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