Nationality, Immigration and Asylum Bill

[back to previous text]

Angela Eagle: There are currently 75 full-time and 398 part-time adjudicators. We are planning to appoint another 70 full-time and 128 part-time adjudicators. That will increase the capacity so that we can hear appeals more effectively. I do not want the hon. Gentleman to leave the debate believing that we are denying people access to the courts on points of law. There is a statutory review, although the hearing will not be oral. The time limits are strict: the hearing must be applied for within 10 days, and held within the next 10 days. Those time limits will provide the access that he and I want, but without the delays with which the judicial review has landed us. There will be time for those debates later in the proceedings.

Question put and agreed to.

Clause 59, as amended, ordered to stand part of the Bill.

Schedule 3

Immigration and asylum appeals: adjudicators

Amendment made: No. 203, in page 74, line 8, leave out paragraphs 6 and 7 and insert:

    'The Lord Chancellor—

    (a) may pay remuneration and allowances to adjudicators,

    (b) may pay remuneration and allowances to staff of the adjudicators, and

    (c) may defray expenses of the adjudicators.'—[Angela Eagle.]

Schedule 3, as amended, agreed to.

Clause 60

Right of appeal: general

Simon Hughes: I beg to move amendment No. 427A, in page 33, line 15, after 'immigration', insert 'or nationality'.

The Chairman: With this it will be convenient to take the following amendments: No. 428, in page 33, line 17, after 'immigration', insert 'or nationality'.

No. 429, in page 33, line 38, at end insert:

    '(l) refusal of naturalisation or registration as a British citizen.'

No. 258, in page 33, line 38, at end insert 'and ( ) decisions to remove.'

Simon Hughes: We are now dealing with the right of appeal. We know that the Bill is getting long in the tooth and a little complicated when we start to get amendments with ''A'' after them. Although the provisions are generally welcome, amendments Nos. 427A and 428 propose an appeal system for decisions on nationality as well as immigration. Amendment No. 429 would add another decision against which there can be a right of appeal. As the Minister is aware, high-profile cases periodically fall into that category. We have all been well-behaved, as we have not mentioned a specific case, although we all know which one we are thinking about.

We discussed the criteria for turning down applicants. The Home Secretary may decide, for example, that they are not of good character. I am

Column Number: 372

comfortable with that entirely proper discretion, but it is good to have the ability to review it. I am willing, as always, to be told that this is not the right place, but I hope that the Minister will confirm that the Government sympathise with the proposition and will seek to accommodate it.

Amendment No. 258 would include the right of appeal against a decision to remove. In simple lay terms, there is currently a decision that a person cannot stay, and a decision about where they go. A topical example is someone who may be a political activist in Pakistan or India. If they are an Indian citizen and their political issue concerns their views on Kashmir, it might be held that we do not have to grant asylum and they should be able to go home, because India is a democracy. However, given their actions, they might be worried that they would be a risk if they went home. They might be a high-profile character.

In that case, they might want to appeal against a decision to remove them to the country from where they came, and unless they nominate somewhere else, that is where they are sent. Furthermore, circumstances might have changed by the time that the decision is formally taken. To take a similar example, if they lived in West Bengal, it might be much safer for them in the short term to go to Bangladesh. If they came from Tamil Nadu, it might be better for them to go to Sri Lanka rather than south India.

I do not want to over-elaborate the point, as it is fairly self-evident. People should have the right to an independent review of such a decision to remove. I hope that we give to the people in the two extra categories covered by the amendments the ability to get into the system and have their cases examined by an adjudicator. There is good authority that that is justified and possible for decisions to remove. It is not currently possible in this context for nationality decisions, but I hope that the Minister will accept the improvements that the amendment would make.

Mr. Malins: Amendment No. 258 also concerns decisions that attract appeal rights and would insert decisions to remove into that group. Several respected bodies, including the Law Society and the Legal Action Group, have raised concerns about this issue. The Law Society has advised me that the Immigration Appellate Authority held in the Kehinde case in November 2001 that applicants served with removal directions have a right of appeal, notwithstanding that no new immigration decision has been made. However, the clause conflicts with the tribunal's approach and means a challenge to removal decisions will have to be carried out by judicial review, which as we all know is slow, cumbersome and expensive. It is therefore a less appropriate method with which to proceed. The Legal Action Group also regrets the absence of removal decisions as one of the decisions that attract appeal rights and, broadly speaking, lays out the same arguments as the Law Society.

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): My hon. Friend the Minister set out clearly what we are trying to achieve in part 5, which is a streamlined system that makes the one-stop process more of a reality. I am

Column Number: 373

glad that Opposition Members have agreed that it is desirable to try to achieve that. The clause is an important part of the process, because it sets out the types of decision that attract a right of appeal on the grounds set out in clause 62, subject to the exceptions and limitations in clauses 66 to 77.

Part 5 will establish a new structured approach designed to avoid many of the difficulties that arose in previous legislation. I am sure that hon. Members are aware that appeals on immigration, asylum, human rights and race discrimination were dealt with in separate sections and therefore triggered in different ways. The new approach makes it much clearer that only one appeal arises from a primary decision in principle, and all relevant matters that the appellant wants to raise will be dealt with at that appeal.

There is little change to the categories of applicants who can appeal, or to the grounds that they can advance, but we have taken this opportunity to remove some categories of appeal where an alternative approach is available, or the appeal is a waste of time because the appellant cannot benefit.

11.15 am

We have extended appeals in deportation cases to those where the decision is taken following a court recommendation, but again the appeal will be a one-stop appeal, which will prevent the person from delaying removal. We argued previously that an appeal to the court, rather than an immigration appeal, was sufficient protection, but our extended one-stop procedure cannot apply to the courts, so we shall provide an immigration appeal but ensure that it is a final appeal.

Taken together, amendments Nos. 427A and 429 would create a right of appeal to an immigration adjudicator against the refusal to grant British citizenship by registration or naturalisation. We appreciate the concern about decisions where there is no formal right of appeal, but I remind the hon. Member for Southwark, North and Bermondsey that the case for an appeal is met to some extent by existing procedures and new provisions in part 1.

Clause 7 repeals the Secretary of State's statutory exemption from the common-law obligation to give reasons for his discretionary decisions. In practice, however, reasons are already given in all cases, and there is a long-standing policy of re-examining and, where it seems justified, reversing contested nationality decisions. Caseworkers have been given clear instructions on that. If maladministration is alleged, the Parliamentary Commissioner for Administration may be asked to investigate. Clause 7 removes the limitation on the power of the courts to review discretionary nationality decisions by enabling decisions to be subject to a normal judicial review. That will include consideration of the reasonableness of the Secretary of State's decision.

In general, however, we believe that no one has an absolute right to acquire citizenship of another country. In the United Kingdom, it is for Parliament to lay down the conditions for acquisition of British

Column Number: 374

citizenship and the rights and privileges that go with it. Under the British Nationality Act 1981, the route to British citizenship for foreign nationals is by way of an application for registration or naturalisation, and in most cases that is granted at the Secretary of State's discretion. Furthermore, as the hon. Gentleman said, that Act requires any applicant for naturalisation to satisfy the Secretary of State that he or she is of good character.

The decision to grant citizenship should be one for the Secretary of State. The introduction of a full right of appeal, as proposed in the amendment, would result in the transfer of that discretion to the appellate body. That would mean that whenever an appellate body took a different view from the Secretary of State on a particular case, a precedent would be set and the Secretary of State's hands would be tied—in not only that but future cases. It is proper to draw a distinction between a decision not to grant citizenship and a decision to withdraw citizenship already acquired or granted. After careful consideration, the Government have decided that they are justified in conceding a full right of appeal against deprivation of citizenship and allowing only judicial review of discretionary nationality decisions.

Amendment No. 258 goes against the principle of the one-stop system that was introduced in the 1999 Act and is taken up in the Bill. It would introduce decisions to remove as a further decision that attracts a right of appeal. However, ''decisions to remove'' is a vague term that covers a number of possible situations, some of which amount to a primary in principle decision that a person may not stay any longer; such decisions should be appealable, but those situations are already clearly covered in the clause, particularly in subsection (2)(h) to (j).

Other decisions could amount to a consequential decision to take steps towards implementing the first decision, against which there was a right of appeal. If the person has appealed and lost, or chosen not to appeal, there is no reason why there should be a further opportunity to appeal. The person can be in no doubt that he must leave the United Kingdom as a result of the primary decision, and if he fails to do so voluntarily it is fair that steps be taken to remove him without further prevarication.

For example, if a person is refused leave to enter the United Kingdom, the purpose of such refusal is to prevent entry. If he does not leave, removal directions must be issued to a carrier to remove him; that would amount to a decision to remove, but it is unacceptable that that should result in a further right of appeal. If it were, that would almost constitute a reward for failure to comply with the direction that had been sent and would be a way out of a decision that had already been upheld by an independent adjudicator, a tribunal and possibly a higher court.

However, where a decision to remove has been taken and further representations made, some will argue that a refusal to reverse the decision amounts to yet another decision to remove. The removal directions to carriers might sometimes have to be changed for technical or administrative reasons, such as the cancellation of a flight. The clause has been

Column Number: 375

carefully drafted precisely to avoid such difficulties. It brings together all the primary decisions that could attract rights of appeal. The one-stop system ensures that everyone who wishes to not only has the opportunity to draw attention to any matter that may result in an appeal right but may be required to do so. Having had the opportunity to appeal, they may not have another unless completely new circumstances have arisen. I hope that that explanation persuades the hon. Gentleman to withdraw the amendment.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2002
Prepared 21 May 2002