First Standing Committee
on Delegated Legislation
Wednesday 30 January 2002
[Mrs. Irene Adams in the Chair]
Immigration and Asylum Appeals (Procedure) (Amendment) Rules 2001
Simon Hughes (Southwark, North and Bermondsey): I beg to move,
That the Committee has considered the Immigration and Asylum Appeals (Procedure) (Amendment) Rules 2001 (S.I. 2001, No. 4014).
I am grateful for the opportunity to debate this important statutory instrument. I apologise on behalf of my hon. Friend the Member for Torridge and West Devon (Mr. Burnett), who is in the Chamber. Although the subject under discussion is, technically, a matter for the Lord Chancellor's Department—we welcome the Parliamentary Secretary—some of the issues that it addresses are the responsibility of the Home Office, and those of them that concern England and Wales are being debated in the Chamber: several hon. Members who might have wished to be present in the Committee will be attending that debate instead.
Before I discuss the content of the rules, I shall explain why hon. Members are gathered here. I think that my point of view about that is shared by the hon. Member for Woking (Mr. Malins), who speaks for the Conservative party. It was only after the Christmas and new year break that I was alerted to the fact that the matter under discussion had been the subject of an order. It was pointed out to me that the order had been laid two days before the two Houses rose before Christmas, and that it had been laid to take effect on 7 January, which was before we were able to return and debate it.
That unusual procedure meant that a change in the rules on the handling of immigration and asylum appeals after they have gone to the adjudicator or the tribunal, became law—subject to the right of Parliament, subsequently, to overturn it—without us having had any notice, or any real opportunity to debate the matter. Therefore, I start with a strong criticism—although it is not aimed at the Minister or the Committee—that that is not the right way to proceed.
Unless there is a particular reason for urgency, so that an order must be put on the statute book before we have a chance to debate it—which offers an opportunity to annul it—we should always get the sequence the other way around. The order should be tabled, and Opposition parties should be told that it is being tabled. That was not done in this instance.
I should be grateful if the Minister would communicate this message to the Government: it would promote co-operation, good practice, and good relations between the parties if the Whips Offices were told of such matters, so that if a party were to feel that a matter should be debated, that could be flagged up, and decisions could be made, and
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there could be some consultation before the event. The Minister might want to respond to that suggestion.
With regard to the matter under discussion, we are at a stage when it is possible for Parliament to annul the rules. It is required to give its approval. Yesterday, in the House of Lords, Lord Avebury opposed the rules, thereby forcing a debate. Baroness Scotland replied on behalf of the Government. It was a worthwhile, and fairly extensive, debate—it lasted for over an hour—and colleagues from all three of the major parties participated. As a consequence, many concerns about the rules have been allayed. I ask the Minister to pass on to Baroness Scotland my gratitude for the answers that she gave, and I can tell you, Mrs. Adams, that because of that debate my party will not force a Division at the end of this sitting. I think that the hon. Member for Woking holds the same opinion about that. Our debate will also be foreshortened, as some of the matters that it was intended to address have already been dealt with in that debate.
I wish to summarise—not least for the benefit of those who read the reports of the House's business—the proposal that is before the Committee, and that is the subject of this change in the rules. It is helpful that, these days, such matters are explained in the explanatory notes at the back of the statutory instrument.
The Government are effectively proposing, and have brought into law through secondary legislation, amendments to the procedures for circumstances in which an adjudicator or tribunal decides certain immigration and asylum cases. In future, in four categories of case, instead of both sides being notified of the result of the adjudication or tribunal at the same time, the Home Office will be notified, and it will be up to the Home Office to notify the appellant.
It is no secret that the argument for that is that, if the decision is to turn down the application on appeal, the authorities will have the responsibility of notifying the appellant and, at the same time, the opportunity to deal with the appellant in terms of whether he will be allowed to stay or not. It is no secret that it is an enforcement measure to ensure that people have no opportunity to escape, abscond or disappear after they have been told that their appeal has been turned down.
I understand the arguments involved. None of us lives in a cocooned world, and we understand that someone who has played what they believe to be their last card in the legal system and has not succeeded, having put a case to stay that has failed, may not be terribly keen to co-operate immediately with the authorities to go home. I entirely understand that, and I do not disagree with where the Government are coming from.
A matter that was debated yesterday, which has been raised with me by the three organisations that have expressed anxieties—the Law Society, the Refugee Council and Asylum Aid—and which has also worried others, is the process of consultation that took place prior to the Government laying the statutory instrument. I understand from yesterday's debate that those who work in the adjudicator's office and tribunal system were consulted. Will the Minister
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confirm my understanding that the Minister in the House of Lords, Baroness Scotland of Asthal, yesterday undertook to place in the Lords Library copies of the responses to that consultation?
I do not believe that I have read or heard about any consultation with organisations that represent refugees and asylum seekers—including not only the Refugee Council and Asylum Aid but the Immigration Advisory Service and other organisations that are funded by the state to do that job. If I am correct in my understanding, will the Minister at least ensure that in future there will be consultation on both sides, on behalf of those who represent appellants and those who represent the places where their future is decided? It seems only proper that in such important matters there should be even-handedness.
Secondly, a constitutional principle is involved that I think that we are breaking for the first time, although I stand to be corrected. In our system, it is important that the adjudicator and the Immigration Appeal Tribunal are seen, throughout the process, as independent of the Government, and everyone accepts that. That is right and should not change. However, the change that the rules will bring about will mean that there is a danger that they might not retain that apparent independence, because from now on when they make their decisions they will not tell both sides at the same time, so one side will not learn about the issue until later.
I am troubled that that will compromise perceived independence. I accept that the adjudicator or tribunal will be no less independent. I cast no aspersions on their integrity. However, there is a danger that those appellants, many of whom will have poor or no English and no experience of tribunals or courts, might think it funny that the state is told at one stage and they are told at another.
I now understand, although it was not made clear when the statutory instrument was introduced, that this is a pilot scheme, which is to be reviewed in three months. That is welcome, but it would have been helpful if that had been made clear at the beginning. I hope that the Minister will say what criteria will be used to decide whether the pilot should be made more widespread across the country and whether the Government will continue it after the review.
The Committee are expecting me to ask explicitly for a consultation during the review with all those who have expressed an interest in the issue. I hope that there will be consultation between the hon. Member for Woking and his party and me and mine, so that there is opportunity to decide at the end of the trial period whether the system has worked as intended.
The issue of the Home Office timetable was raised yesterday. Under the rules, there is no deadline before which the Home Office must come round and serve the papers. I understand that the Home Office will do that job as soon as is reasonably practicable but, in my constituency office, we are regularly telephoned by either those waiting for a decision or someone calling on their behalf to ask whether we have heard anything.
If the Government are to meet their objectives for a fair and speedy immigration and asylum system, they
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must make sure that the system works relatively quickly and that we have a date by which we can expect the Home Office to have served the papers on the person. It would be helpful if the Minister could put on record the date by which that is expected to happen, not least so that people can be told that they will know within, for example, a fortnight. I understand that it is expected that the two latest dates will be a fortnight for the adjudicator's decision and six weeks for the tribunal's decision. I should like confirmation of that.
The Law Society, the Refugee Council and others have raised an important issue. Obviously, people could exhaust remedy through the adjudication process but still have grounds for further legal testing of the decision. They might, quite properly, be advised to seek a judicial review or a review by the courts to decide whether the administrative procedures have worked properly, or they might make an application under the Human Rights Act 1998. Those people cannot, by law, be excluded—nor should they be. I hope that those affected and their legal advisers will have every opportunity to assess whether there is any other matter that they wish to pursue.
Despite the rules and procedures that provide that people should have the opportunity to consider their legal position, I have known cases when people were put on planes and sent away before they could do so. Without having to trawl through my constituency casework, I can think of at least two cases in which it was accepted that they should never have gone, although they did. When someone is on the other side of the world, somewhere where they might be under threat, it is a bit late for them to argue that it is unsafe for them to go back. The argument becomes somewhat theoretical. That could put people at risk.
I was partly assured by the answers given yesterday. However, it would be helpful if the Minister would confirm that there is opportunity for every case for which the legal process has not been exhausted to be considered further, and that further representations or applications to court can be made. An obvious type of case in which that might happen is a regular occurrence for those hon. Members whose surgeries and constituency offices deal with large numbers of immigration cases.
To use the obvious example of Zimbabwe, someone might have made an application last summer and been turned down, on the basis of what was happening at the time when the application was made. I would understand that. However, when the time came for enforcement of the decision, the situation might have worsened. It might be perfectly proper and normal to want to tell the authorities of the new circumstances, such as that the family home had been raided or burnt, or a family member injured, arrested or detained, which might make the case entirely different. It should be possible to explain those changed circumstances to the authorities, even after the tribunal case.
I find slight difficulty with one area of definition, and I do not pretend that I have yet understood it. It concerns whether in every relevant case the unequal service rule will apply only when someone in the Home
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Office or the Lord Chancellor's Department has decided that it is a case in which someone is likely to abscond. Will a separate decision be taken so that the procedure will be used only in cases in which a risk has been perceived? For example, if a family has lodged the passports of those members who are British or who have leave to be here lawfully as a guarantee that there will be no absconding, it seems proper that the notice should be served on the applicants at the same time as the other parties. It would be quite improper to arrest the relevant people and take them away at the same time as they were being served with the notice.
By way of a practical example, at the end of the application process, if the people concerned have failed and I believe that there is no further case, I say so. However, they may have been here for a year, or two or three. They may be council tenants or social housing tenants or living in a property where someone else is such a tenant. Time may be needed just to enable them to organise their departure. On occasion I have, while making it clear that they must go, sought time. That time enables them to arrange their affairs, so that they leave voluntarily rather than being deported—because that is far better for their future opportunities for coming here. It enables them to do things like get money together, make family arrangements and arrange for someone to receive them.
It is important that our system should allow people of good reputation, with no convictions or record of absconding, to make their own arrangements and not to undergo the potentially unpleasant experience of being taken out of the door simultaneously with service of the notice, and taken to Harmondsworth.
Finally, I am concerned about the effect on the dependants of the applicant or appellant. We should be grateful for an assurance that if there are dependants not covered by the adjudication and not the subjects of the order, who may want to accompany their parent, sibling, spouse or whoever it may be, but who may have an option about it, they will have the opportunity to make the choice and it will not be determined by applying the enforcement procedures automatically to everyone involved instead of to individuals.
I hope that I have explained that real human issues arise in this context, as well as constitutional issues and good practice. Those are exactly the sort of things that it is proper to discuss. I regret that the statutory instrument has been bounced on to us, with no chance to debate it before its implementation. I am encouraged by the thought that there will be a review opportunity, but I hope that such important rule changes will in future involve consultation with all those concerned, and that there will be agreement as to the best way forward. Only then should legal steps be taken in Parliament to change the rules if that is what Government think is appropriate.