Mr. Allan: The Minister's clarification was helpful, especially on the Geneva convention provisions. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Allan: I beg to move amendment No. 281, in page 30, line 24, leave out subsection (5).
The Chairman: With this it will be convenient to take amendment No. 282, in page 30, line 28, leave out paragraph (a) and insert:
'(a) only in respect of leave to enter granted after this section comes into force, and'.
Mr. Allan: These amendments are also designed to stop the new powers in the clause being enforced retrospectively. Individuals who entered into a particular status under one set of rules should not have that status adjusted afterwards. We therefore propose that the new system should apply to those whose indefinite leave to remain is granted now or later, rather than to those to whom it was granted under the old system.
Angela Eagle: Amendments Nos. 281 and 282 would unnecessarily and inappropriately limit the use of the power in the clause. Amendment No. 281 would delete subsection (5), which allows the Secretary of State to revoke indefinite leave to remain where it was granted before the power comes into force, and where the action—in this case, a conviction of a criminal offence or gaining leave through deception—occurs before the power comes into force. As powers already exist to remove those who fall into those categories, people can expect that they will be deported or removed from the United Kingdom, and that they will lose their immigration status as a result of their actions. It is legitimate to apply the power retrospectively because of that expectation, and because the revocation of indefinite leave is less severe than deportation or removal.
Column Number: 273
Amendment No. 282 refers to those whose leave is revoked because they have ceased to be refugees because of their own actions. The amendment would prevent the power from being applied retrospectively to those granted leave before the power comes into force. As there are no powers to revoke indefinite leave or remove someone who ceases to be a refugee, it is inappropriate for the power to apply where those concerned have ceased to be refugees before the power comes into force. However, revocation should still be possible, as leave is granted before the power comes into force, but someone ceases to be a refugee afterwards. As the Bill will have been in the public domain for some time before it becomes law, refugees will also be informed that they risk losing their leave when they seek permission to travel abroad. When refugees ask for a passport to be returned, or for it to be stamped ''no time limit'' to enable them travel abroad, they will be warned that if they return to their country of origin, they risk losing not only their refugee status but their indefinite leave.
If we accepted the amendment, we would prevent the provision from having any effect on those refugees fortunate enough to have been granted refugee status before enactment of the provisions, no matter how aware they are of them, or how frequently they return to a country from which they formally established an asylum claim. I hope that the hon. Gentleman will respect the first examples, and accept that retrospectivity is in order in this instance.
Mr. Allan: I am grateful to the Minister for responding so comprehensively. She caused me some concern, however, when she said that individuals whose passports are stamped with indefinite leave to remain will be warned that return to their country of origin could jeopardise their ILR status. We were trying to tease out that issue. I hope merely that it is handled sensitively and that it will be explained to individuals that an exploratory or legitimate family visit will not threaten their status.
Angela Eagle: The Geneva convention is clear on what actions individuals must commit before their refugee status is revoked. Those principles will apply in this case, and people will be told of their responsibilities.
Mr. Allan: I am again grateful to the Minister. I simply suggest that bald statements made during the immigration process can cause alarm among people who will want to know what they mean. I have every confidence that the Minister will ensure that the process will be explained in clearer terms than, ''Your status may be threatened''. That concerned me especially, although I understand that that is shorthand for what will be said to them. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 55 ordered to stand part of the Bill.
no removal while claim for asylum pending
Mr. Allan: I beg to move amendment No. 283, in page 30, line 44, after 'Convention', insert:
Column Number: 274
'or Article 3 of the European Convention of Human Rights'.
The Chairman: With this it will be convenient to take the following amendments: No. 284, in page 31, line 5, leave out subsection (4).
No. 285, in page 31, line 10, at end insert:
'(4A) In this section the words ''other interim or preparatory action'' shall not include any action which may prejudice the safety of a person who has made a claim for asylum and shall preclude any contact with the authorities in or from his country of origin and any requirement to apply for a travel document of his country of origin.'
No. 286, in page 31, line 20, leave out subsection (3).
No. 287, in page 31, line 27, at end add:
'(5) In this section the words ''other interim or preparatory action'' shall not include any action which may prejudice the safety of a person who has made an appeal under section 60(1) in relation to a claim for asylum or an assertion that his removal would be contrary to the United Kingdom's obligations under Article 3 of the European Convention on Human Rights, and shall preclude any contact with the authorities in or from his country of origin and any requirement to apply for a travel document of his country of origin.'
Mr. Allan: Some important issues remain as we enter the last lap of today's sitting. The amendments are significant.
Amendment No. 283 would extend the definition of an asylum claim to include article 3 of the European convention on human rights on protection against torture and other forms of inhuman treatment. We sought to include that, as it appears to be accepted elsewhere in the Bill as part of the definition of a refugee. It would be simpler to have one straightforward set of protections against removal, rather than to have an individual who was threatened with removal taking an ECHR claim through the courts under the Human Rights Act 1998, as was suggested. That would be less satisfactory than an explicit statement in the Bill that the ECHR and asylum provisions protect equally against removal.
The other amendments would overturn the clause, which appears to contain its own work-around subsections. It sets itself up as a clause that protects individuals from removal while their claims for asylum are pending. However, subsection (4) contains large exemptions whereby the Secretary of State can effect removals almost in any way that he wants. The clause is not clear: it grants protection while granting ill-defined exemptions. We are trying to remove those ill-defined exemptions by defining them more clearly. I hope that the Minister will say what those exemption subsections mean. I also hope that she will give some thought to the ECHR provision, which would be better incorporated in the protection that the clause provides, rather than left as a separate legal process that would always be available, but would be unnecessary and cumbersome.
Ms Winterton: On amendment No. 283, consideration of asylum applications and claims that removal would be contrary to article 3 of the ECHR raise similar issues, but the two are not always synonymous. What applies to one will not always be appropriate for the other. I reassure the hon. Gentleman that we would not seek to remove someone if that resulted in a breach of our
Column Number: 275
obligations, but there is a difference between that and an asylum application. Although we will take account of our obligations under the ECHR, it is unnecessary to make explicit reference in the clause. Under section 6 of the Human Rights Act 1998, it would be unlawful for the IND to act in breach of a person's human rights. The amendment would not make that any more unlawful, and is therefore unnecessary.
Amendment No. 284 would restore the position that existed under section 6 of the Asylum and Immigration Appeals Act 1993, and would seriously impede the processing of asylum applications. Section 6 was replaced as it was an obstacle to the processing of applications. Under that section, if an illegal entrant applied for asylum, the application was refused, and the decision was sent by post, it was not possible to notify the applicant of his right of appeal because the setting of removal directions triggered the appeal. It was necessary to wait until the applicant had received the notification of the outcome of the asylum application before removal directions could be given. That would still be the case if we accepted the amendment, and is unnecessarily cumbersome. In 1999, Parliament accepted that it made more sense to be able to send the two decisions in the same envelope. We are therefore confused about why the hon. Gentleman would wish to revert to the pre-1999 position. Similarly in a deportation case, if the asylum application is refused, a deportation order has to be made to trigger the appeal to the adjudicator, so we cannot accept that amendment.
On amendment No. 285, the Government accept fully the need to safeguard the position of people who claim that they are in danger of persecution in their country of origin. However, we cannot accept that it will never be appropriate to make inquiries of the authorities in the country concerned if they can be done without putting an applicant or his family at risk. Amendment No. 286 is similar to No. 284, but would go far further, as it would apply to any appeal, not just asylum appeals. However, provided that the person concerned is not removed, which is the current effect of the clause, there is no reason why preparatory measures should not be taken. There is no need for everything to stop while the appeal is heard and then start again when it is finished.
Amendment No. 287, which I assume is intended as an alternative to No. 286, is also similar to one tabled to clause 56 and again would go further. We do not accept that in a case in which an applicant claims that he suffers from a medical condition so that it would be contrary to article 3 to remove him to his country of origin, there should be a statutory bar on our obtaining evidence from the Government concerned about the available treatment. Also, I do not accept that preparatory steps to document someone whose application for asylum has been refused should be suspended pending the outcome of any appeal.
I am sorry that I cannot be more helpful on the amendments, but I hope that the hon. Gentleman will accept my reasons for rejecting them.
Column Number: 276