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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. Eric Illsley in the Chair]

Nationality, Immigration and Asylum Bill

Clause 63

Matters to be considered

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I beg to move amendment No. 344, in page 34, line 36, at end insert—

    '(A1) An appeal under section 60(1) against a decision shall be treated by the adjudicator as including an appeal against any decision in respect of which the appellant—

    (a) has a right of appeal under section 60(1), and

    (b) has specified grounds of appeal in accordance with rules under section 84.'.

The Chairman: With this we may take the following: Government amendments Nos. 345 and 346.

Amendment No. 402, in page 34, line 42, leave out paragraph (b).

Amendment No. 432, in page 34, line 43, at end insert—

    '(2A) Nothing in subsection (1) shall prevent an adjudicator from considering a claim for asylum or a claim that an act breached the appellant's human rights, whether or not raised in the statement.'.

New clause 19—Adjudicator: determination of appeal

Ms Winterton: The clause is equivalent to section 77 of the Immigration and Asylum Act 1999 in that it empowers the adjudicator to consider what are now called additional grounds—that is, further appealable matters that are raised in response to a requirement under section 74 of the Act to disclose reasons for staying here that have not been raised before. That remains a key feature of the one-stop system and the response to the requirement being made under clause 92. The adjudicator is not required, however, to consider matters raised in connection with a different application or appeal.

Under the 1999 Act, the adjudicator has to decide the case on the basis of the circumstances applying at the time he hears the case if those circumstances relate to an asylum or article 3 human rights matter. Other matters are to be decided according to the circumstances applying at the time of the decision, which follows the case law in the Ravichandran case. The clause extends the principle so that nearly all appeals are dealt with on the time of hearing basis. That has advantages for the one-stop system in that updated circumstances can be considered without requiring a new decision or appeal. The exception is appeals against refusals of entry clearance or a refusal of certificate of entitlement where the decision was taken abroad, because those are not one-stop appeals, and there is no question of removal in those

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circumstances. There is no penalty for making a further application to the entry clearance officer based on updated circumstances, which are much easier to investigate in the country of origin than at a hearing in the United Kingdom, which is likely to have to be adjourned.

For the reasons that I set out, amendment No. 344 permits the adjudicator to consider all grounds of appeal no matter when they are lodged. If an application is refused it will often be sensible to enforce the requirement to disclose any reasons when we serve the refusal, to ensure that our information about the applicant's circumstances is completely up-to-date. It is important that the adjudicator is able to consider any additional reasons mentioned, even if the applicant is not asked to complete a statement until a refusal decision is made.

Government amendments Nos. 345 and 346 prevent the adjudicator from being asked to determine matters outside his competence. Amendment No. 346 restricts the appeal to those matters that can properly be raised at an immigration appeal. If the appellant's statement raises his entitlement to benefits, for instance, the adjudicator will not be required to consider that point. Amendment No. 345 removes the adjudicator's duty to determine all matters raised in a statement. It is not always necessary, or even desirable, for an adjudicator to determine every issue raised by the appellant. For example, if an adjudicator in a previous appeal determined an issue, it would be wrong for the second adjudicator to determine it again. However, amendment No. 346 does not remove the adjudicator's duty to consider all matters raised.

Amendment No. 402 would remove subsection (2)(b), and thus force the adjudicator to consider and determine any matter that had been raised in a statement at any time. If a person now seeking to stay on human rights grounds following their marriage had appealed two years earlier against a student refusal, the adjudicator would be obliged to consider and determine the student issues. It would not matter if those issues had already been determined.

Simon Hughes (Southwark, North and Bermondsey): Would that apply if the first application had been withdrawn? Obviously, there can be successive applications as people's circumstances change. Someone who came here as a student and then got married might make a second application on the basis of marriage or asylum, having got a student visa. So long as they informed the authorities that they were not pursuing the first application, presumably the situation that the Minister describes would not apply.

Ms Winterton: If the student had previously tried to extend their period of time on their application as a student, but that was refused, the second adjudicator would not revisit that decision, because an adjudicator would already have considered it. The second adjudicator would be considering the new issue.

With regard to amendment No. 432, clause 63 empowers the adjudicator to consider what are now called ''additional grounds''. Those are further appealable matters raised in response to a requirement

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under section 74 of the Immigration and Asylum Act 1999 to disclose reasons for staying here that have not been raised before. That remains a key feature of the one-stop system, the response to the requirement now being made under clause 92. An essential feature of the one-stop process is that all matters relevant to an application for leave are raised, so that they can be fully and appropriately considered.

Without new clause 19, an adjudicator could leave some of the additional grounds undetermined. That would necessitate further hearings in order to resolve outstanding matters, and that would cause additional delay. The new clause defines the circumstances in which the appeal must be allowed—that is, when the decision against which the appeal is being brought is not in accordance with the law or the immigration rules, or involves the incorrect exercise of discretion.

I hope that I have given some of the background to the Government amendments, and have addressed some of the issues raised under the Opposition amendments.

Mr. Humfrey Malins (Woking): I rise briefly to speak to amendment No. 402. Unusually, the Minister dealt with it in her comments. In general, we must be careful, when considering such a Bill, to focus as much on justice as on speed for speed's sake. Subsection (2) requires the adjudicator to consider and determine all the grounds of appeal and any additional grounds, and prevents him from considering anything else.

My amendment would delete subsection 2(b), because to prevent the adjudicator from considering anything else strike me as a fetter on his judicial discretion. Perhaps the Minister will persuade me, but I do not think that the insertion of paragraph (b) serves any useful purpose. I can think of no real parallel in the criminal justice system whereby a judge, on hearing an appeal from a magistrate, is so constrained. The point underlying the amendment is that surely it should be left to an adjudicator to assess what relevance or weight to attach to a statement. That principle is reflected in subsection (3).

I am a little uneasy about the fettering of the adjudicator's judicial discretion. Although the Minister answered my questions before I asked them, I was not utterly reassured on that point.

Simon Hughes: The Minister also anticipated the points that I wanted to raise on amendment No. 432, which is in my name and that of my hon. Friend the Member for Sheffield, Hallam (Mr. Allan). I shall deal with amendments Nos. 402 and 432 together, because although they make different points, they take the same direction.

The general principles in the clause, which is about matters that are to be considered on appeal, are welcome. The clause deals with appeals under section 60, which are appeals against immigration decisions. Such issues have a slightly strange distribution under the Bill, but the clause builds in the opportunity for a statement under section 92, to which the Minister referred. Perfectly reasonably, clause 63(1) says that

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adjudicators should consider the matters in the statements. The Government do good things in parts of the Bill, but we argue that those things should be done elsewhere in the legislation.

Subsection (2) says that

    ''Subsection (1) applies to a statement under section 92 . . . whether the statement was made before or after the appeal was commenced''.

The Minister will remember our discussion about commencement. It seems that, under subsection (2), it does not matter if the statement arrived after the lodging of the appeal but before the hearing. The hon. Member for Woking (Mr. Malins) and I would both prefer ''commenced'' to be replaced by a clearer word, but the principle for which we were arguing before we suspended this morning's sitting seems to have been accepted in the clause. I hope that when the Minister considers the debates of this morning, she will decide that it would be consistent to bring the matters that we discussed up to speed with subsection (2).

Amendment No. 402, which we have signed, would remove paragraph (b) and thereby ensure that the adjudicator is not fettered in the things he can consider. Amendment No. 432, which my hon. Friend the Member for Sheffield, Hallam and I have tabled, adds what the Minister might call a clarificatory subsection (2A) to ensure that the claims of those who appeal to an adjudicator can be considered not just because they are making an asylum application, but because, as is increasingly common, they are making a human rights application. It accepts the Minister's premise that we should bring all things together. We should allow the adjudicator to consider all the different types of appeal, whether it is against an asylum refusal or on human rights grounds.

4.45 pm

Like the hon. Gentleman, I will not press our amendment to a Division. I will reflect on what the Minister has said so far and what she may say in response to the two points that we have made. I hope that she will reflect on what we have said, but I think that we agree that the adjudicator should have the power to consider the required statements as provided for in the Bill and any other statements that come to his attention before the hearing, irrespective of when they come.

Section 60(1) is described in clause 63(3) as a right of appeal against an immigration decision. It is referred to again in subsection (4), which deals with appeals against refusal of entry clearance or refusal of a certificate of entitlement. There may be a plan to have slightly different rules for slightly different types of application. I concede that I have not entirely thought through the logic of those different approaches. However, even if the Minister does not accept our proposals at first blush, I hope that she will examine them and give us a considered answer. Perhaps she will be kind enough to write to us before Report and, depending on the Government Whips, provide enough time to enable us to table an amendment should we so wish.

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