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Mr. Patrick Hall (Bedford): My hon. Friend is making some useful points about the principles of out-of-country appeals. Does he share my concerns about the practicalities of a person who is removed from the country without having completed or begun an appeal here doing so from another country? What are the resource implications? What support would there be? Would it be through a British overseas post, which, as we know from dealing with ordinary matters are already under pressure, or would it be down to the individual to write, presumably in English, to the authorities in this country? Has my hon. Friend given some thought to the practicalities, never mind the principles, of the issue?
8.45 pm
Mr. Gerrard: That is an important point. Nothing in the Bill gives us an answer to that question. Let us assume that a person could act in various ways—they could pursue their appeal by writing, using the internet or visiting a British post overseas. That, of course, gives rise to other practical questions. How does that person obtain representation at their appeal? It would probably not be much good for them to try to use a lawyer in another country who was not familiar with British law, but how would they make contact with a lawyer in this country? How would they brief the lawyer, and where would they find the resources to conduct an appeal?
Such situations are different from other appeals conducted from overseas. For example, in family visitor appeals there will inevitably be sponsors in the UK who can help with some of the problems of finding representation in this country.
Mr. Letwin: Is there not another and more fundamental difference? If a person is sent back to the country of origin—if that is indeed the purport of subsection (2) of new clause 14—will it not immediately be evident either that the decision that the claim was unfounded was true and that the person has no basis for appeal because they are happily situated back in their own country, or, unhappily for economic reasons only; or that the claim was not unfounded and the person is in the most dire straits? In that case, how on earth can they conduct an appeal if they are being chopped up by some appalling regime to which they have been sent back by mistake?
I cannot see—can the hon. Gentleman?—how an in-country appeal can resolve any problem that might arise under subsection (2).
Mr. Gerrard: The hon. Gentleman is right. If a mistake is made, it is difficult to see how the consequences can be other than extremely serious for the person returned on the basis of an unfounded claim.
Mr. Blunkett: We must not misunderstand each other. My hon. Friend has been putting his case extremely carefully and credibly, but we must not misunderstand what the shadow Home Secretary has just said. I spelled out the unacceptable risks, on which we are all agreed, and we are not intent on sending people back to countries that would chop someone up, in the words of the hon. Gentleman—or anything like it. We know of no country that has it in for one person alone, as regards taking away their rights and exposing them to the danger of death or torture as individuals, as opposed to the groups to which they belong, the religion they hold, the politics they espouse or any of the other things that I read out. I was specific about that because it is in those terms that we are talking about returning people.
Mr. Gerrard: I completely accept my right hon. Friend's point, but I question whether the proposed system will deliver what he says and whether there might not be a risk of serious problems for some individuals whose claim has been certified as unfounded.
Fiona Mactaggart: It may help my hon. Friend if I give an example of a case where such risks might occur in a country that is usually safe for most people. In parts of some countries, female genital mutilation is practised on young women and there is no adequate protection for them. That happens in countries to which we might consider returning people. I am not clear that the procedures would offer adequate protection that such practices could never happen.
Mr. Gerrard: My hon. Friend makes an extremely valid point. Such issues have always given rise to difficulty—whether only part of a country is safe and whether the person being returned actually ends up in the part of the country that is supposed to be safe.
My final point relates to new clause 15. My understanding is that it would apply to cases that were already in the system. An appeal might already be in progress under the existing system, but under the new clause the process could be stopped before the appeal was heard, the case could be certified as unfounded and the person could be removed. Retrospective legislation of any sort always concerns me. If that is the effect of new clause 15, I would be extremely worried.
Simon Hughes: I indicated earlier that my hon. Friends and I would divide the House at the end of this debate on the two Government new clauses. It might be helpful to you, Madam Deputy Speaker, if I also indicate that we will seek to divide the House on our amendment No. 13. Of the many amendments in this group that Mr. Speaker has selected, it addresses one of the other issues that, in our view, goes most to the heart of what is wrong with many of these sets of proposals.
We may debate this later in the day when some of the heat and noise has gone out of the earlier exchanges—both those that happened and those that were expected to happen but did not—on education. We regret the failure to allow the time for such debate. In my view, we shall not have the time, with an hour and 10 minutes left, to complete the business schedule for today by any means. There are four groups of amendments on appeals—this is the first, and there are three remaining. We may not get beyond this debate by 10 o'clock, and that will be the end of it.
In this context, we are discussing the protection by law of some of the most vulnerable people who ever come to Britain to seek protection. It is unacceptable that Parliament should have to debate proposals put down on Friday afternoon, and published for the first time and available to colleagues for the first time yesterday morning, which nobody has been able to amend, even though we are meant to be able to amend new clauses and schedules on Report. It would not be acceptable even if they were relatively unimportant new clauses and new schedules. It is fundamentally unacceptable when they relate to the right of the courts to oversee the actions of the Executive and the process of appeals, and when they relate to this entirely new proposal, which, as I indicated to colleagues, the Labour party opposed five years ago—that an immigrant or asylum seeker may have to go abroad to pursue their case, but anybody else can have their case dealt with here.
It is fundamentally wrong as a matter of principle that if one comes here seeking shelter, one should not have the same appeal rights as someone who has gone through the employment appeal tribunal on an employment matter, through the social security appeal tribunal against a decision of the Executive on social security, or through the tax appeal system, for example. On behalf of my colleagues, I want to register our dissatisfaction with the process as well as the substance.
I shall give one example only of why what the Government are doing is fundamentally wrong. It relates to the intervention of the hon. Member for Slough (Fiona Mactaggart), in terms of the kind of issue that it raises. A well known case called Islam and Shah went to the House of Lords in 1999; it got there after an application for judicial review. It went through the process in the following way. Originally, the case had been put to the adjudicator and lost by the individual applicant. She was refused leave to appeal to the Immigration Appeal Tribunal. She applied for and obtained judicial review of the tribunal's refusal. The Home Office then appealed to the Court of Appeal and won. She then appealed to the House of Lords and won. It was not on an insignificant issue but on a hugely important issue relating to the rights of women in Pakistan. In many ways, that country might be regarded as one where proper process, in many years, might be acceptable, but the House of Lords was very clear that its decision was merited by a hugely important matter.
Let me set out what the Lords decided as regards whether someone could seek asylum on the basis of being a refugee as a result of belonging to a particular social group, which in some parts of the world could be women, people of a particular age, or people of a particular
sexuality. For example, homosexuality is unacceptable in Nigeria and the safety of a homosexual who wants to return there might be at risk in some parts of the country.
- "a 'particular social group' consisted of a group of persons who share a common, immutable characteristic that either was beyond the power of an individual to change or was so fundamental to the individual's identity or conscience that it ought not to be required to be changed. The existence of such a group did not, however, depend on an element of cohesiveness or co-operation or interdependence amongst the members of the group. Thus, as gender was an immutable characteristic that was beyond the power of the individual to change and as discrimination against women was prevalent in Pakistan in violation of fundamental rights and freedoms, women in Pakistan constituted a 'particular social group', within the terms of Art 1A(2) of the 1951"
- "Accordingly, as the appellants were members of a particular social group in Pakistan and as the Pakistani authorities were unable or unwilling to protect them against gender-related persecution, it would be contrary to the UK's obligations under the 1951 Convention for"
- "to be required to leave the UK and"
- "appeal would have to be reconsidered by the Tribunal."
It is important not only to separate the powers of the Executive and the judiciary, but to understand that we often win the argument only because we have had the debate, like we did today. The hon. Member for Slough and others know that from their work before they came here. We do not stand a chance of winning a case if the only alternative is to have the papers looked at by someone in authority, with no chance of anyone putting the argument, which is what the Government propose.
Many of the greatest decisions in favour of liberty have been taken by courts in this land, the United States and elsewhere only because there has been debate and a court has been persuaded. The Government, to their shame, are suggesting that a group of people—not you or me, Madam Deputy Speaker, but people who have been subjected to the most awful circumstances before they arrive here—are deprived of that right. That must be wrong.
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