|Nationality, Immigration and Asylum Bill
Simon Hughes: The amendments are variations on a theme. The hon. Lady has spoken to one; ours would restrict the liability factor in subsection (3). Her amendment proposes that someone should be liable to penalty only if there is a breach by that person or a member of their family. Our alternative proposition, if the Government find it more acceptable, is that someone would be liable only if there were a breach by that person or a dependant. I think that we are knocking on the same door.
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We certainly think that when there is a residence requirement one should not be held liable for breaching it if the fault is widely drawn as someone else's. I shall make the link points now, rather than during the debate on clause stand part: subsections (1), (2) and (4) seem entirely reasonable, but subsection (3) seems entirely unreasonable—that element raises the big issues. The debate will test both specific liability and the wider point.
I do not propose to ask the Committee to vote to remove subsection (3), but I hope that it is amended substantially or taken out on Report. I understand that under the 31-year-old Immigration Act 1971, the Secretary of State can, quite reasonably, impose restrictions on somebody to control where they live. That has always been the case during our political lifetimes. It is proposed that it should continue and there is no argument about that. However, it raises the issue of what happens if someone breaks their residency condition, which is already regarded as affecting the credibility of an asylum application. I understand that, and I think that I am right in saying that it has been tested in the European courts as being compatible with the European convention on human rights. A breach of a residency requirement can relate to the credibility of an asylum application, but we must tread carefully.
The right to make a case for asylum and the right to be granted asylum, which are two different things, are not qualified in the convention because they are absolute rights provided that an applicant, having made their case, fulfils the conditions on fear of persecution. That has always governed us, and we were parties to the convention when it started.
Mr. Malins: Does the hon. Gentleman agree that there is an interesting parallel in criminal law? If a person breaks his bail conditions it is not held against the merit of his case when it comes before court.
Simon Hughes: The hon. Gentleman is particularly qualified to give that as an example from his experience as a recorder. He and I share a concern that clause 21(3) links three things: the asylum application and its merit, the conditionality of residence, which already affects the credibility of the asylum application, and the residence condition, which will be linked to behaviour in the place of residence. Clause 21(3) clearly states that
we are debating who could be responsible for the breach—
In the most extreme case, someone may be asked to leave a centre because glasses were broken during a party, for which other people were responsible. A less extreme case may involve someone's personal behaviour—they may have come back an hour late at the end of the day and were required to leave by the management. That would be regarded as a breach of the residency requirement that related to the acceptability or credibility of their asylum
Column Number: 160application. Unless the Minister can point to another part of the Bill in which that is contradicted, the fact that someone had been required to leave the centre would, in theory, trigger the possibility of being detained, being refused leave or being summarily removed. It must be wrong that someone's behaviour in an accommodation centre, however bad, should determine their asylum application.
We have had that debate in another context. If somebody misbehaves and breaks the law, they are punished according to the law, and it makes no difference whether they are an asylum seeker or a native-born Briton. If they are in an institution and break the rules, they are punished according to the rules—the only way in which punishment can happen. The hon. Member for Woking (Mr. Malins) and I are justified in putting this case because page 57 of the White Paper states:
residency or reporting
The Immigration Law Practitioners Association takes a view, similar to mine, that it is entirely unacceptable for a person's asylum claim to be affected by their behaviour. They are unrelated matters, and behaviour is not relevant to proper consideration of the entitlement to asylum. The Refugee Council says that it would oppose any plan to link any aspects of an individual's behaviour in an accommodation centre to their asylum claim, which, it says, would not only be contrary to the spirit of the 1951 convention, but would lead to legal challenges and place further pressure on the Immigration Appellate Authority.
The Government may not like it when people misbehave. I do not know what happened at Yarl's Wood or how that started, because I have not seen the report, but it appears that there was some misbehaviour. If there was misbehaviour, people must be punished: if they broke the law, they should be prosecuted. However, even if there were severe misbehaviour, that should not make people liable to have their asylum claims considered differently. However tempting it is when under pressure suddenly to move people into new categories for which the Government can find new excuses to turn down asylum applications, it is morally wrong. I hope that the Government confirm that the clause needs redrafting.
Mr. Malins: If ever two amendments ought to be accepted, either with their present or similar wording, these are they. Make no mistake, clause 21(3) reads as follows:
That is what it says in plain English, and it will not do.
The parallel that I used was that of a criminal court. If a person is given bail with a condition of residency at an address and he breaches that by not residing at the address, he is separately dealt with by the court for
Column Number: 161a breach of the bail condition. It is inconceivable that that person would have adverse inferences, about their defence or their case, drawn from that breach. That would be a ludicrous proposition. I urge hon. Members to take that on board and realise how grossly unfair—and possibly illegal—it would be for the merits of someone's asylum case to be affected by the conduct of someone else over whom they had no control. Even to argue that someone's asylum claim could be affected as a result of his breaching a condition is astonishing.
The Home Office website states:
Can the Minister be specific and say what would happen in various scenarios if the rules were broken? The website also states:
Can the Minister say exactly what is meant by that? Does it mean that if a case if full of merit, the adjudicator will have the breach drawn to his or her attention and will be told to take less notice of the merit because of the breach? Even that is an absurd proposition, but to go further and say that a person's position would be affected by the conduct of someone else over whom they have no control is, in my respectful view, ludicrous. I cannot see how the Home Office can possibly justify the clause.
Angela Eagle: First, I would like to reassure Opposition Members about the meaning of ''someone else'' in this context. Clause 26 makes it clear that if a person or their dependant breaches a condition, both may be required to leave the centre, in accordance with policy. I hope that everyone accepts that there must be certain rules and standards of behaviour. Clearly, criminal law will apply to certain forms of behaviour but, short of the criminal law, it is necessary for good order that there are rules and standards of behaviour. Therefore, it is appropriate that there should be sanctions if people breach those rules. The sanctions will depend on and be proportionate to the extent and seriousness of the breach. I would not expect any disagreement with that.
Secondly, the reference to ''someone else'' in subsection (3) that has caused concern can only refer to the dependant referred to in clause 26. That is not a wide use that allows us to attach anyone else to the individual.
Simon Hughes: It does not say that.
Angela Eagle: That is what it means. ''Someone else'' refers to the dependant that is mentioned in clause 26. We do not have the power at present, nor will the Bill give us the power, to require anyone other than the resident or his or her dependant to leave as a result of a breach of conditions. I am sorry if hon. Gentlemen and the hon. Member for Chesham and Amersham (Mrs. Gillan), who made an equally important intervention on this issue, do not believe me, but that is the case. We do not have an arbitrary power to require anyone who may be completely unrelated to an individual to leave an accommodation
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Mr. Malins: Is the Minister telling us that clause 26 says that ''someone else'' shall mean a dependant? If it does, I stand corrected. Otherwise, it is no good her telling us that she is advised that it can only mean a dependant, because the advice that she has received is bunkum.
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