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Mr. Hughes: Obviously, I do not know the details of the case, but if the hon. Gentleman is concerned about it, I am happy to see any correspondence or documentation that he wants to give me. I shall not prejudge the matter. No one is perfect and our councillors may be wrong; they may be right. I cannot judge, but I have sometimes been in difficulty on the same subject. I understand the pressures and the difficulties, but we must be clear about the issues. I have large numbers of asylum seekers in my constituency and I am aware of the potential issues that that can generate in the community. If there are matters that the hon. Gentleman wants to bring to my attention, I shall make sure that they are examined.

Mr. Winnick: I am grateful.

Mr. Hughes: If there is a serious allegation, I would rather see the documents that support it.

There are various stages in the treatment of asylum seekers, during which it is possible to test whether discrimination exists. If the amendment were accepted, it might affect other matters, such as the financial support systems. We would argue that it should not be possible to discriminate generally by people's ethnic origin and where they come from, and that there should be no generalisation in respect of the dispersal system around the country or the withdrawal of support.

The amendment would also make it unlawful to discriminate directly or indirectly on any racial grounds, including race, colour, nationality, citizenship, or ethnic or national origin, with regard to support arrangements, finance and so on. However, there could still be positive measures to help people who, for example, may not speak English. People with particular needs may require positive action and extra support. It is a difficult debate, but I understand that such exceptions will be lawful, because they come under another part of the Act--section 53--which allows special needs to be looked after.

We are discussing a difficult matter, open to misinterpretation if we are not careful. It will be much better regulated by clear language, rather than open-ended language, and by Parliament dealing with the issue, rather than leaving it for subsequent authorisation. It is clear that in such difficult areas of policy--refugees, immigration, asylum seekers and the like--decisions must be seen to be fair by applicants and their representatives, and by society as a whole.

5.15 pm

I hope that the Minister will give an assurance either that he is willing to consider the proposition that we have advanced or that the authorisations will cover only the sort of list that I described when I discussed the five examples contained in our amendment. If he gave a categorical statement about what the authorisations would cover,

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even if he did so on a later occasion, that would be some consolation to those of us who are interested in the matter, both in the House and outside it. The hon. Member for Leyton and Wanstead made it clear that there was such interest.

Mr. Lidington: We should remind ourselves of two points. First, illegal immigration remains a serious challenge for this country. Attempts at illegal immigration are frequently assisted by organised criminals who traffic in human beings, much as they might traffic in drugs or other contraband goods. Secondly, the officials whom we charge with enforcing our system of immigration control have to take complicated decisions that involve judgments about the quality of evidence that they receive from individuals. They might also have to take such decisions, which are of great importance, quickly and under great pressure. Those officials deserve to know that Parliament will provide them with certainty about what they are, and are not, allowed to do.

I, and, I am sure, hon. Members from all parties, have sat alongside entry clearance officers at posts overseas, immigration officers at ports and case workers at the Croydon headquarters of the immigration and nationality directorate. On each occasion, I was struck by the professionalism of the officers concerned--they have absolute commitment and try to examine the merits of a case and the quality of evidence that is presented to them--and by the immense responsibility that we devolve to them when they take decisions about cases involving individual men, women and children.

As I made clear in Committee and earlier, I start from the premise that some immigration exemption is necessary. I was persuaded by the arguments that were contained in the letter of 26 January from Lord Bassam of Brighton to Lord Lester of Herne Hill, to which the hon. Member for Leyton and Wanstead (Mr. Cohen) alluded. Lord Bassam explained why the Home Office believed that some exemption for discrimination on the grounds of ethnic origin should, in particular and defined circumstances, remain within the law. That remains my position.

I hear the arguments of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), who said that his amendment would lead to greater clarity and greater control over ministerial discretion. However, as I listened to his speech, various questions occurred to me. He invites us to agree to an amendment that would limit the exemption to a list of specific functions of the immigration and nationality directorate and the migration and visa department of the Foreign Office, but what functions would his amendment exclude from the exemption?

The hon. Gentleman discussed the detention of various people. As I understand the arrangements for detaining people at the Oakington detention centre, decisions are made on the basis that, on the whole, people are sent there because the immigration officer at a port believes that they have a fairly straightforward case, about which an initial decision can be taken within relatively few days.

I have not examined the statistics in detail, but I think it conceivable that analysis of the nationalities of people detained in Oakington would show particular nationalities to be represented disproportionately, in terms of the proportion that they represented of the total number of

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seekers of asylum in the United Kingdom. If amendment No. 54 were passed, a court might conceivably decide that the fast-track rule applied in respect of Oakington was indirectly discriminatory on grounds of race. I think there is a danger that the amendment would introduce more rather than less ambiguity.

Although I do not close my mind to arguments in favour of further amendments, my inclination is to leave the provision as it stands.

Mr. Simon Hughes: I understand the hon. Gentleman's argument, too, and I accept that fast-track systems start with presumptions. However--in this regard, as in others, there may not be much between the hon. Gentleman's view and mine--whereas a presumption might be made that would put someone into a category in respect of consideration of his case, the actual consideration would be on the basis of the paperwork, the facts and the information collected. That, not national, ethnic or other discrimination, would be the determining factor.

Mr. Lidington: I take the hon. Gentleman's point, but I still think that his amendment has the potential to reintroduce a measure of ambiguity.

I welcome Government amendment No. 3, which, as I read it, would remove from the scope of the exemption the powers--effectively--of a constable which were conferred on immigration officers by the Immigration and Asylum Act 1999. I think that the reference to sections 28A and 28K of the Immigration Act 1971 refers to new powers conferred by the 1999 Act. If so, I consider the amendment sensible.

Mr. Mike O'Brien: There has been much discussion during the Bill's passage, both here and in another place, about the exemption for immigration and nationality functions provided in new section 19C in clause 1. Amendment No. 1 would remove altogether the exemption, and the associated provision creating an independent monitor whose function would be to account to Parliament on its operation. Amendment No. 54 would narrow the immigration exemption in new section 19C.

At present the Bill allows discrimination that is proper and necessary, on grounds of nationality or ethnic or national origin, in the carrying out of immigration and nationality functions. Those are defined as functions exercisable by any of the enactments listed in subsection (5). The amendment seeks to prescribe only a limited number of functions in which discrimination may occur.

I am fully aware of the concerns expressed about the immigration and nationality exemption. The Government have said on many occasions that it should be no wider than is absolutely necessary. The amendments, however, would damage our attempts to provide a fast, firm and fair immigration control. They ignore a number of the principal functions contained in the immigration legislation in which discrimination may well be proper and necessary. In particular, they would not permit discrimination in respect of the removal, deportation or detention of individuals who did not qualify for leave to enter or remain. Detention, for example, is sometimes necessary to enforce the removal of those who do not qualify for leave to remain, and who will not comply voluntarily with instructions to leave the United Kingdom.

As hon. Members will know, owing to operational factors such as the ready availability of national travel documentation, or the preparedness of other states to

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allow us to return their nationals using other forms of documentation, some nationalities are easier to remove than others. In respect of certain nationalities, enforcing removal can be a prolonged process. In such cases, when there is no immediate prospect of removal, detention may not be appropriate.

It is necessary for the immigration service and the integrated casework directorate to conduct special nationality-specific exercises, involving the fast-tracking of cases in response to sudden or sustained influxes of certain nationals seeking to circumvent control. In particular, the immigration service needs to ensure that resources are targeted at the nationalities that offer the best prospect of successful removal, often in the light of other Governments' attitudes to accepting the return of their nationals. I am not convinced that the amendments would permit such activity.

At ports the immigration service requires the ability--under close ministerial supervision--to treat people differently on the basis of their nationality and, occasionally, their ethnic or national origin when it has intelligence that, for example, certain national travel documents are being abused, or individuals or groups of one nationality are presenting themselves as nationals of another country in order to benefit from compassionate policies or asylum procedures that are being applied to one nationality or ethnic group but not to others. The Kosovan situation is an obvious example.

We have encountered a number of rackets emanating from various countries. There are also many examples of the immigration system discriminating positively in favour of individuals on the basis of their nationality or ethnic or national origins. For example, in the past we have given special treatment to Kosovan Albanians, during the recent conflict in the Balkans. Kosovan Serbs were not treated in the same way, for obvious reasons.

There are other examples in which guidance to asylum caseworkers indicates that one ethnic or national group from a particular country should be treated differently from another. The ethnic or national origin of the applicant is a key consideration in the determination of applications for asylum and exceptional leave. It is clearly important to establish whether a particular ethnic group is the subject of some form of persecution in the country from which it comes, rather than another ethnic group. It would be impossible to operate a rational asylum process, requiring the immigration authorities to treat cases alike without always delving into the detail of each claim, if caseworkers were unable to make such distinctions. That would make the operation of the asylum and immigration system extremely difficult.


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