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Standing Committee Debates
Nationality, Immigration and Asylum Bill

Nationality, Immigration and Asylum Bill

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Standing Committee E

Tuesday 21 May 2002


[Mr. Alan Hurst in the Chair]

Nationality, Immigration and Asylum Bill

Clause 59


10.30 am

The Parliamentary Under-Secretary of State for the Home Department (Angela Eagle): I beg to move amendment No. 202, in page 33, line 6, leave out 'shall' and insert 'may'.

The Chairman: With this it will be convenient to take Government amendments Nos. 203, 206, 204 and 205.

Angela Eagle: The clause relates to the appointment and functions of adjudicators, and is designed to replicate the effect of section 57 of the Immigration and Asylum Act 1999. It requires the Lord Chancellor to appoint adjudicators, as now, and sets out the criteria for appointing them and the functions that he may assign to them. It also requires him to appoint a chief adjudicator, as now, and requires the chief adjudicator to perform such functions as the Lord Chancellor may assign. It will allow the Lord Chancellor to appoint a deputy chief adjudicator, who will be able to act for the chief adjudicator if he or she is unable to act or is unavailable. The deputy chief adjudicator will also be able to perform such functions as the chief adjudicator delegates or assigns.

On Amendment No. 206, schedule 4 makes further provision about the Immigration Appeal Tribunal and follows on from clause 78, which provides for the continuation of the tribunal. It restates schedule 2 of the 1999 Act, but with the important addition in paragraph 3 that the Lord Chancellor is required to appoint as president of the tribunal someone who holds, or has held, high judicial office. We propose to amend the provisions that apply to a deputy chief adjudicator who acts for the chief adjudicator or president if he is unable to act or is unavailable. That will retain the current procedure. The amendment reflects more accurately the intent of paragraph 2(3) of schedule 2, and paragraph 1(4) of schedule 3 to the 1999 Act.

On amendment No. 203, schedule 3 follows on from the clause, which sets out the criteria for appointment. It makes provision for the terms of office for adjudicators, the appointment of staff, and remuneration, and replicates the effect of paragraphs 3 to 7 of schedule 3 to the 1999 Act, although paragraph 6(2) is restated in the clause.

Amendment No. 204 refers to schedule 4. Amendment No. 205 also refers to schedule 4, and relates to the definition of a legally qualified tribunal member. It ensures that all persons appointed as legally qualified members of the tribunal have legal or

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other experience that makes them suitable for appointment.

The amendments clarify that the Lord Chancellor has the power to pay such remuneration, allowances and expenses as he may determine. They also ensure that he has the power to pay allowances to staff, adjudicators and tribunal members.

Mr. Humfrey Malins (Woking): I welcome you to the Chair, Mr. Hurst. There is a slight end-of-term feeling about this morning.

Government amendment No. 205 deals with the Lord Chancellor's ability to appoint one ''legally qualified'' member of the tribunal. Schedule 4 contains a definition of a legally qualified person. The provisions in paragraph 12(a) to (c) are understood, but sub-paragraph (d) says that a member of the tribunal is legally qualified if he

    ''is appointed by the Lord Chancellor as a legally qualified member.''

Under amendment No. 205, however, the Lord Chancellor can appoint as a legally qualified member someone who is not legally qualified in any respect. That point is incontrovertible. I am sorry to labour it, but let us imagine that the Lord Chancellor takes the view that person X has other experience that makes him suitable for appointment. How can he appoint him as a legally qualified member when he is not legally qualified? There is no answer to that question, but I ask the Minister to produce one.

Simon Hughes (Southwark, North and Bermondsey): There is merit in having the job done by people who are not technically legally qualified. There is no argument about that. However, as the hon. Member for Woking (Mr. Malins) says, they should have other relevant experience, such as significant work in the immigration field. They may have given advice or worked in a solicitor's office, although not as a solicitor. They may have worked for a reputable organisation in this field, although they are not technically lawyers or otherwise legally qualified.

Mr. Malins: Someone could, for example, have been a non-remunerated trustee in one of the great organisations and have tons of experience, although it has nothing to do with the law.

Simon Hughes: A civil servant, for example, who knows the law like the back of his hand, might now want to do something else. Opposition Members are not against the idea that people who are not lawyers may be involved, just as we have never been against the idea that judges should be drawn only from barristers. We must have a broader range of people in judicial and semi-judicial jobs, but I hope that the Minister understands that the definition should be redefined, probably on Report, so that the Bill refers to legally qualified or other appropriate people.

Angela Eagle: The Lord Chancellor may appoint someone with other relevant experience. Hon. Members have offered their thoughts on who that could be, and I welcome their recognition that other relevant experience might assist the work of the tribunals. Such experience tends to mean that someone has a law degree, for example, but has never practised. People may have qualified abroad, in

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other jurisdictions. They may have been involved in the immigration field as academics or served in that sphere abroad in a judicial or quasi-judicial capacity.

The number of people who currently fall into that category is tiny. This provision is no different from what was in the 1999 Act, which has worked perfectly well. That is what the formulation of words read out by the hon. Member for Woking means in practice. Clearly, it is for the Lord Chancellor, when he makes appointments, to ensure that other experience is relevant. That is what the phrase means, so I do not think that there is any disagreement between us. The definitions in the legislation have worked well for two years, and we see no need to change them.

Mr. Malins: There is nothing between us in the sense that we are content for people with relevant experience, gleaned from a variety of activities, to be appointed. However, those people are in a separate category from those who are legally qualified. It is no good the Bill saying that they are suitable for appointment as a legally qualified person, because they are not legally qualified. They may be suitable for appointment, but surely the Minister will accept that it does not matter how well a system has worked in the past. Something often works even though wording is inaccurate or misleading. Does she accept that we must address that point on Report so that we can distinguish between those who are legally qualified and those who are not, rather than saying that everyone is legally qualified, including those who are not?

Angela Eagle: I do not want to dance on the head of a pin, but I fear that I will have to. My understanding of the term ''legally qualified'' here is that it refers to the seven-year general qualification as defined by the Courts and Legal Services Act 1990. The people may be legally qualified, having received law degrees or practised in foreign jurisdictions, but they are not legally qualified under the terms of the 1990 Act. I suspect that that is what the phrase means. Such people are legally qualified in general parlance—the hon. Gentleman or I would regard them as legally qualified, because although they may have not practised or may have qualified in another jurisdiction, they have legal expertise. However, they are not legally qualified to appear before the courts before they have either done the seven-year general qualification or completed a relevant conversion course.

That is the pin on the head of which we are dancing. There is nothing between the hon. Gentleman and me in practical terms, but I suspect that that is the meaning of the phrase that he referred to in schedule 3.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes: Part 5 concerns the process of appeals. We start from the basis that we have a system in which immigration officers, either in this country or abroad, make initial decisions. Depending on what the decision is and where it is taken, a first stage in an appeal process can start, and adjudicators are most

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often the people involved at that stage. Later, we will debate the next stage, which is the tribunal, in which more than one person adjudicates. Like all other tribunal systems, it comes in the general realm of legal jurisdiction, so the case can re-enter the court system at a higher level for further appeal. Often, the law is made above the level of the Immigration Appellate Authority, for example at the Court of Appeal or House of Lords.

That process is fundamentally right. It is right that an officer who deals with the job on a day-to-day basis should take a first decision. Families in my constituency have rung up about relatives who have arrived at Heathrow, Gatwick or Dover, and my experience is that immigration officers are reasonable in most cases. For example, such relatives may have been refused entry, but if there is no security risk or risk of breach, we have argued that they should be allowed in on concession for a day or a week pending a flight to take them back. Immigration officers are normally fair, understand the case and act appropriately, taking compassionate reasons into consideration.

I am grateful to the many officers whom I have had to trouble on such matters, often at weekends or bank holidays, and to staff in the Home Office, including the duty person whom I have occasionally woken up late at night or early in the morning. I still have cordial relations with them, and happily there are several, so I am not always contacting the same person.

I also want to pay tribute to the adjudicators. I have been with constituents to hearings and appeared before them. I hope that the Minister agrees that we must start from the basis that they should be allowed to decide the matters that appear before them. We will come later to amendments that would give the adjudicator or the appeal tribunal the power to manage their affairs. I hope that we do not remove the discretion of those who hear a case and who are trying to do justice. One of the criticisms that I will make in today's debate is of the Government's creeping intention to remove that discretion from the adjudicator and the tribunals and to hem them in by prohibiting them from doing what in justice they should be allowed to do—such as looking at hugely relevant evidence that was not available when the first decision was made.

10.45 am

The issue is one of keeping a system that works, by and large, and offers a series of opportunities for review. That system should be streamlined so that all the issues are brought together and an appellant does not have one hearing on one issue before an adjudicator one day and then have to come back for another hearing on another issue before another adjudicator the next. That would clearly be nonsense. The Government—I do not include the Minister—have a perverse and obsessive belief that going to court for a judicial review of administrative decisions is a hindrance to government. However, whether one is dealing with immigration, asylum or any other matter, it is fundamental to our constitution that the court, not Ministers, is the place of last resort. In a country with no written constitution, it is vital

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that the independent judiciary at all levels makes decisions on the law and the facts. I hope that all hon. Members will sign up to that. One of my great concerns about the current Administration is the creeping wish to take more decisions centrally.


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