Immigration and Appeals (Procedure) (Amendment) Rules 2001

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Mr. Humfrey Malins (Woking): Like the hon. Member for Southwark, North and Bermondsey

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(Simon Hughes), I think that this is an important debate. It is a good opportunity to consider the rules. Our consideration can be foreshortened, because these matters were well aired in the other place yesterday. A number of concerns, shared by the hon. Gentleman and my hon. Friend the Member for Basingstoke (Mr. Hunter), who is also here, were addressed then. Her Majesty's Opposition do not intend to force a Division on this instrument. I hope that it will be convenient to the Committee if I do not speak for long. I look for confirmation, and I see it.

The asylum world has changed dramatically in the past 10 years. People are on the move as never before. Putting the facts in a neutral way, which I do now, the number of asylum applicants rose from about 25,000 in 1990 to more than 80,000 a year by 2000. The issue, which affects so many western countries, seems set to dominate our lives in many ways in the years to come. With that number of applications, it follows that there are, every year, a large number of refusals. The best evidence shows that in 2000 there were about 80,000 applications for asylum, and about 60,000 refusals. However, in that year there were only about 9,000 removals from this country. There was a great deal of evidence, both anecdotal and real, that many failed asylum seekers went to ground. The Home Secretary has set himself a challenging target by seeking to remove some 30,000 failed asylum seekers in a calendar year.

That is the background to this instrument, and I understand the thinking behind it. However, I share the concerns of the hon. Member for Southwark, North and Bermondsey on the question of consultation. The rules were, as he says, laid before Parliament on 17 December, just before the Christmas recess, on a day when most of us had already mentally started our break, even if we had not done so in practice. They came into force on 7 January. There was no mention of the issue in the consultation paper on appeals issued by the Lord Chancellor's Department in summer 2001. The important changes relating to the notification of negative appeal decisions have not been subject to proper consultation, consideration and debate. That is a pity. Many, both inside and outside the House, would have welcomed an opportunity to comment on the proposals.

The hon. Member for Southwark, North and Bermondsey mentioned the Refugee Council, the Immigration Advisory Service and the Law Society. I founded the IAS, was its first chairman of trustees and was for many years closely involved in that organisation, which provides free legal advice and help to those with rights of appeal under immigration law. It continues to do good work, and was one of a number of organisations that felt that they should have been consulted. I echo what has been said. I hope that when the Government consider such matters in future, they will draw on the expertise of outside bodies such as the IAS.

I am concerned about another matter raised by the hon. Member for Southwark, North and Bermondsey, but it is perhaps more of a perceived problem than a real one: the link between the judiciary and the Home Office. They are utterly independent of each other, but

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the rules tend to imply that one is the agent of the other. That would be a cause for concern. I should add that I am relieved that we are dealing with a pilot scheme and that there will be a review after a short time. Those are important provisions.

Our principal concern was that neither the instrument nor the press notice made clear the time limit within which the Home Office must notify a failed appellant and did not say whether the legal representatives would be notified at the same time or later. That could affect the time limits within which one might challenge legitimately the way in which the process was conducted, for example by judicial review. Surely there is a need for a specified time limit within which the Home Office must notify the failed appellant and the appellant's representative. Otherwise, notification could be delayed for a long time at the discretion of the Home Office, causing serious injustice.

Our other major concern was that removal directions should not be sent to an appellant at the same time as notification of a negative decision. To do so might mean that any legal remedy against removal, such as an application under the Human Rights Act 1998, or as a result of a change in the circumstances of the appellant or the receiving country, could be nullified. We felt that it would be nonsense if a legitimate remedy were unavailable because the failed appellant was removed before it could be exercised.

Those are two important concerns, but the hon. Gentleman raised several others. I shall not repeat those concerns, but I associate myself with his comments. Those issues have been raised in correspondence with the Minister and were raised in last night's debate, and many of them have now been resolved satisfactorily.

I want to raise one further important point, on which I am sure that Government Members will agree with me. If we are to have an appeals system and a removals system, it is important that cases are dealt with speedily. If the process takes ages and ages, perfectly decent people will have put down roots in communities, by starting families and starting to attend schools. One of the problems that I have encountered in my work in the immigration world and with asylum seekers is that of the genuine person who is refused asylum status and forced to leave the country once he or she has settled here. That can be—I use a neutral word—unkind, and any system should ensure that removals are exercised not just humanely but quickly, thus avoiding a situation in which families settle and are then removed.

I was concerned at the prospect that decent asylum seekers whose applications have failed could be taken into custody and then removed in days or hours. That is why I was pleased to read the words of the noble Baroness Scotland of Asthal, who said, in another place:

    If the unsuccessful asylum seeker is detained, he or she is given an effective opportunity to take legal advice. Telephone calls may be paid for and details of the Immigration Advisory Service and of the Refugee Legal Centre are displayed in a number of languages in all removal centres. All of that will continue to be the case.

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    The new rules give the Home Office no unfair advantage. They deprive no one of the opportunity to apply for a chief adjudicator's or appeal tribunal review. They deprive no one of the opportunity to apply for a judicial review.—[Official Report, House of Lords, 29 January 2002; Vol. 631, c. 171.]

That is some comfort, because we seek a balanced system. Although we understand and support the Government's need for a proper and effective removal system, we would be terribly disappointed and unhappy if the system prevented those faced with a refusal from exercising a final remedy. I know that the Minister will reassure me that no one will be prejudiced, and that everyone will have that opportunity and will be encouraged to take it. That will be a great reassurance.

We shall return to this matter in a few months. I hope that when we do so the Minister will give us plenty of advance notice, and that she will tell us how the system has worked, be frank about any faults that might have appeared and take advice from outside agencies, so that we can move forward together. What unites the three main parties is a wish to find an approach that is effective but humane and absolutely fair.

5.1 pm

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): A lot of important questions have been asked today, but I am glad that the spirit of the debate has followed on from that of last night's debate in the other place, and that Opposition Members have shown support for the Government over the difficulties that we face in this matter.

The hon. Member for Woking referred to the balance that must be struck. That is the real issue: the Government must strike a balance between treating the individual asylum seeker fairly and humanely and establishing an effective system that allows genuine refugees to remain in the country but maintains public confidence. Part of maintaining confidence is being seen to have a system whereby those who have exhausted all legal avenues and no longer have a right to remain in the country actually leave the country. It is difficult to achieve that balance, but it is important that we do so, because we know what problems might occur if public confidence in the system was undermined.

The new method for delivering appeal decisions forms part of wider reforms to the asylum system, which will improve it. The regulations contribute to a strategy for maintaining contact with asylum seekers, which is a crucial part of the process, by means of initial briefings and regular reporting at accommodation and reporting centres and police stations, and through the asylum support system. Our aim is to create a fair and efficient system that integrates genuine refugees into society swiftly but removes without delay those who fail to gain asylum. The new rules will help us to achieve that. Everyone will continue to have a fair opportunity to make his or her claim and to have that claim considered objectively. People will also continue to have a right to challenge a decision with which they disagree before an independent judicial authority.

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The hon. Members for Southwark, North and Bermondsey and for Woking raised many points, and I hope that I will be able to cover them all. The hon. Gentlemen should come back to me if they feel that I have not. I want to outline and re-emphasise, because I am conscious of the concerns expressed in the House and by many of the interested organisations, that there are safeguards to ensure that the rights of asylum seekers and those who have failed in their claims are not in any way diminished.

The independence of appeal is not affected. That touches on the point made about judicial independence. The new rules affect only the mechanism used to deliver appeal decisions. The conduct of cases before the adjudicator or the Immigration Appeal Tribunal remains unchanged. Appeal hearings will continue to be taken by independent members of the judiciary. Asylum seekers will continue to receive a reasoned decision by an adjudicator or the tribunal as to why their claim has been rejected.

It is important to recognise that the independence of the judiciary is not affected. We are talking about the delivery mechanism of the decisions. Under the new rules, delivery by the Home Office may be either by post or in person. Every care is taken to ensure that decisions are served in person only in cases in which it is suitable.

Home Office staff will sift the determinations received to establish whether they fall within the geographical areas where the measure is currently being implemented. They will take careful account of the particular circumstances of each case, including any medical history and any other factors, such as problems with documentation, which may be a barrier to removal. They will also—I hope that this will cover the point made by the hon. Member for Southwark, North and Bermondsey about Zimbabwe—have regard to any current difficulties in returning people to a particular country or geographical area, as well as the advisability and safety of doing so.

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