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Mr. Simon Hughes: I hear what the Minister says, but in my constituency experience of dealing with huge numbers of such applications, at the end of the day Ministers and officials make decisions on the basis of the individual concerned, and--either initially, or if pressed--provide explanations. Is it not the case that, whatever may be the starting point of a policy, decisions are and should always be made on the basis of an individual's circumstances? We cannot get away from that.
Mr. O'Brien: Certainly each asylum application is decided on its individual merits. To that extent, the hon.
Gentleman is right. The individual, however, comes with a history--a background. In the case of Kosovo, for instance, in which we operated special procedures in relation to ethnic Albanians, it was clearly relevant to determine whether an individual claiming to be an ethnic Albanian was indeed an ethnic Albanian. An ethnic Albanian coming from Kosovo rather than Albania itself might be given different treatment from an Albanian coming from Albania, or a Serb coming from Kosovo. On that basis, we had to examine not just individual circumstances, but the broader context. It was not necessary to look much further into the individual circumstances of a person identified as a Kosovan Albanian to decide how that person should be dealt with.The hon. Gentleman is right in principle: when deciding whether to grant asylum, we should consider individual cases. However, the context in which the decision is made cannot be ignored.
5.30 pm
Mr. Cohen: I understand that the immigration service deals with nationality and ethnic origins in much of its case work, but at the heart of the Stephen Lawrence case and the subsequent inquiry lay the fact that there have been individual massive injustices caused by false stereotyping. That is what institutional racism is about. Why should the immigration and nationality service be exempt from provisions relating to institutional racism and false stereotyping when the police and many other public services are subject to those provisions? Why should an individual who is anti-Saddam Hussein be treated the same way as someone who is pro-Saddam Hussein, just because he or she comes from Iraq? It might be a false stereotype to assume that any applicant from Iraq should be turned down.
Mr. O'Brien: As we have already identified, when an asylum or immigration case is determined, the circumstances of the individual are important, as is the individual's background. I do not think that my hon. Friend and I disagree on that point. However, he appears to think that there is reason to believe that many, or at least a significant number, of the decisions taken by immigration officers are based on some sort of stereotyping or discriminatory intention. That is not my experience of the professional way in which decisions are normally taken. That is not to say that there have been no mistakes made--no public service is immune from the errors of individuals or the mendacity of a small minority--but, by and large, the immigration service bases its decisions on the proper and openly arrived at decision-making guidance issued by Ministers.
In his opening remarks, my hon. Friend mentioned Frances Webber. My right hon. Friend the Home Secretary has broad enough shoulders not to worry about criticism from that source, but he is certainly not facing both ways on the issues. He is trying to ensure that our record is that of a Government who promote a combination of the firm and fair immigration controls to which we committed ourselves in our manifesto and a strong commitment to race equality, which we have demonstrated throughout our term in office, both in the Bill and in the establishment of the Stephen Lawrence inquiry.
There is no question of facing two ways: our aim is to restore integrity to our asylum system so that it works for the genuine refugee, discourages those who would abuse
it or make unfounded claims and recognises the need to respect race equality. That is why we have tabled an amendment that makes a change that I am sure my hon. Friend wants. We think it is possible to do that because exemptions should be no wider than is necessary.My hon. Friend quotes Frances Webber asking,
- how . . . are we going to prove unlawful race discrimination . . . if it is not unlawful to discriminate . . . ?
My hon. Friend asks whether junior civil servants have the ability to take unto themselves the exemption. The answer is no: a junior civil servant has no ability to say, "I have decided that, in that case, such a course of action is no longer discriminatory," nor does a senior civil servant, or the chief immigration officer. Immigration officers will operate under the guidance issued by Ministers, which is, by and large, in the public arena. My hon. Friend will be able to ascertain the criteria by which such decisions are made and the way in which they are reached.
In no sense does the Bill create an exemption that gives a civil servant broad discretion to discriminate. Civil servants will be able to discriminate properly and lawfully only when there is a clear instruction from the Minister to do so in specific circumstances, and those circumstances are mainly in the public arena. One of the actions taken by the Government after entering office--indeed, while I was Minister with responsibility for immigration--was to ensure that the guidance on how such decisions are made was put into the public domain and so made available to immigration lawyers such as Frances Webber. There is a degree of openness from which my hon. Friend can take solace. We do not accept that any official is entitled to discriminate in a way that is unacceptable to the Government.
Mr. Hughes: I shall not dispute the issue of openness with the Minister. I hope that he will now address the question of the timetable from now on governing the exemptions provided under the legislation. However, the example he gives works both ways. The House and the country had huge sympathy for Albanian Kosovans and everything started from there. However, I know from colleagues and from discussions with the Refugee Council when I visited Kosovo that some Serbian Kosovans felt that their case was prejudged against them, even though they had no history of acts of aggression or intimidation or other anti-social activities. The very generalisation that Albanian Kosovans should be considered together and regarded favourably and that Serbian Kosovans should not is worrying to me, because I know how much grief that presumption has caused over the past couple of years.
Mr. O'Brien: We considered Albanian Kosovans differently from Serbian Kosovans not because specific
individuals might have been involved in activities that, in retrospect, they would not have been proud of, but in the light of evidence of persecution of a particular ethnic minority. Obviously, in Kosovo at that time, the issue was whether Albanians were suffering persecution, not whether Serbs were. I am sure that the hon. Gentleman understands that point.I recognise that neither my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) nor the Liberal Democrats intend to frustrate control, even though that would be the effect of their amendments. The Government accept that the amendments were tabled for bona fide reasons, even though we cannot accept them. We are concerned that they would deprive us of the ability to preserve the integrity of immigration control.
The provisions in the Bill to ensure that any discrimination in the sphere of immigration and nationality is justified are quite strict. Such discrimination must be in accordance with the provisions of the various enactments, or must be authorised by Ministers who, in turn, are accountable to Parliament. Such instructions are normally in the public arena, although there might be security issues relating to specific individuals or circumstances that oblige Ministers to decide otherwise--no doubt, hon. Members can work out for themselves the circumstances in which a Minister might decide not to make such matters public.
Precisely because there have been concerns, we took the view that there should be a race monitor to ensure that the decisions made by the immigration service were made properly and subject to some public scrutiny. The race monitor will have free access to all of the IND's papers. He or she will also be able to call on the IND to provide an individual file. However, I make it very clear that the monitor should not be a surrogate appellate authority. It is not the monitor's job to examine an individual case and to make decisions on it. The monitor's job is to look at the broad array of cases and at a selection of cases and to determine whether, as a whole, immigration control is being operated within the spirit of this legislation. The race monitor will, therefore, monitor the immigration service and the IND to ensure that the legislation's spirit is being properly adhered to.
The current entry clearance monitor, who provides real accountability to Parliament, provides a very successful precedent for the role of race monitor. The entry clearance monitor will report annually to Parliament, and I know that many hon. Members pay great heed to the views that the monitor expresses. We very much hope that the race monitor will have the same type of credibility and impact, so that Ministers, too, pay great heed to what is said by him or her.
I am satisfied that we have struck the right balance, and therefore urge my hon. Friend the Member for Leyton and Wanstead to consider withdrawing amendment No. 1.
Government amendment No. 3 would modify the exemption for immigration and nationality functions in clause 1, new section 19C. As I said, we have consistently made clear our view that the exemption should be no wider than is absolutely necessary to safeguard the effective operation of immigration control. We have reached the view that a refinement to the immigration exemption can be made in the interests of securing the Bill's objectives without the risk of harm to immigration control.
The amdendment is designed to remove from the scope of the immigration exemption sections 28A to 28K of the Immigration Act 1971 as they relate to offences under part III of that Act. Those offences include seeking to obtain leave to enter or remain by deception, facilitating the entry of an illegal entrant into the United Kingdom, and possessing false immigration documents--such as passports, visas and work permits--for use. Many of those offences are committed by our own citizens, although some may be commissioned only by those subject to immigration control.
The amendment would place the immigration service, in the investigation and prosecution of such offences, on the same legal basis as police--with whom they often participate in joint operations--in operating the Bill's provisions.
It is right that the investigation and prosecution of offences should be based on some objective evidence or intelligence, rather than on an individual's nationality or ethnic or national origin. The immigration service does not prioritise the investigation of such offences by nationality. It is also right that the immigration service and police should be subject to the same legal constraints in carrying out similar activities, often conducted together. Those constraints will not harm or hinder the administration of justice or action against those engaged in immigration fraud or human trafficking.
Immigration service functions that support the removal or deportation of individuals from the United Kingdom will, however, remain within the scope of the exemption. As I said, it is sometimes necessary to prioritise cases for removal on the basis of nationality in response to particular pressures on control or as a result of the attitude of other Governments towards accepting the return of their own nationals.
The amendment contains a justifiable refinement to the immigration exemption. We have listened carefully to the concerns expressed by hon. Members and by Members of another place, and we have taken action to ensure that the exemption is no wider than is necessary. I hope that the House will accept this Government amendment to new section 19C.
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