Simon Hughes: I shall reflect and take advice on the Minister's comments. There appears to be a difference of opinion, but for now it is sufficient to leave the matter. I am conscious that we have yet to deal with a few more clauses.
Question put and agreed to.
Clause 73 ordered to stand part of the Bill.
Earlier right of appeal
Mr. Malins: I beg to move amendment No. 408, in page 38, line 7, leave out subsection (1).
The Chairman: With this it will be convenient to take the following: Government amendment No. 358
Amendment No. 409, in page 38, line 17, leave out subsections (2), (3) and (4).
Government amendment No. 359.
Mr. Malins: The clause raises a principle that I have alluded to on several occasions earlier in our debates. Many of us have a fundamental feeling about parts of the Bill that the Secretary of State is taking upon himself, his officials and immigration officers powers that ought properly to belong to the judiciary. Never is that more true than in clause 74, which states plainly in subsections (1)(a), (b) and (c) that the Secretary of State or an immigration officer can make a certification that appears to be final. It seems to say that if the Secretary of Stateperhaps I would have a bit more confidence if it were just the Secretary of Stateor any of his officials or immigration officers simply certify that, in their opinion, the person is seeking an appeal in order to delay his removal, that is the end of it. The person who should decide that is the adjudicator, who is a judicial authority.
I have lost count of the respected NGOs who have briefed me at length on the subject. The clause is worth a day's debate, because hon. Members from all parties would want to contribute at length from their own experience. I look at the hon. Member for Walthamstow, for example. I know well that his experience and expertise in the field are significant, and if I may say so, his reputation is very high. He is one of many on the Committee who would have something to say on the fundamental issue raised by the amendment, which is that we are moving to a situation in which we shall give the Secretary of State, his junior
Column Number: 433
officials and the immigration service powers that we know should be exercised by the judiciary. The IAS wrote strongly to me on the subject, saying that subsections (1)(a), (b) and (c) raise serious concerns on the grounds of natural justice and threaten basic principles of fairness.
The IAS says that the provisions make the Secretary of State judge and jury in his own cause and that it should be for an independent adjudicator and not the Secretary of State to decide whether there is a legitimate purpose for an appeal under the law. The powers are draconian and give the Executive extensive powers to deny rights of appeal against their own immigration decisions to a broad range of people, who may not have access to an independent adjudicator. The grounds on which the Bill provides the Secretary of State power to deny rights of appeal go to substantive issues that are at the heart of the appeal.
The Government's position is already protected against unmeritorious appeals by the fact that appellants have to pass a merits test before they are entitled to controlled legal representation to pursue their rights of appeal. Look at subsection (1)(a), which allows the Executive to certify a claim to prevent a right of appeal on the basis
''that the person was notified of a right to appeal''
on the immigration decision currently at issue at the time of another immigration decision.
The IAS and others submit that notification of rights to appeal on matters that were not at issue at the time of a previous immigration decision, especially when those matters may not have been contemplated, is extremely unfair. Any number of factors could affect a person's circumstances from one immigration decision to another, including the availability of additional evidence, changing family circumstances and the development of compassionate circumstances. The comments that apply to paragraph (a) apply also to paragraphs (b) and (c), which are the subjects of the amendment. Amendment No. 409 would delete subsections (2), (3) and (4) because similar concerns arise in relation to them as arise in relation to subsection (1).
In addition, the provision that the Secretary of State will decide what a person should have included in a previous statement made for a different purpose is alarming. In effect, he is empowered to decide that a person should have included all matters affecting any potential immigration decision in any circumstances at any time. That is likely to lead to statements being drafted in omnibus form, which will have further implications in terms of time and money.
I beg the Committee to realise that both the amendment and the whole subject are important. We all know that our asylum system in this country is in need of some reform. The papers tell us of some of the problems in the asylum world, but let it not be thought that the abuse of the system, if there is abuse of the system, is limited to or mainly concerns spurious appeals. People say that judicial review is the great devil, but is it? It is worth pondering that in the past couple of years there have been only about 300 or so
Column Number: 434
judicial review cases per yearwe will come on to thatand that more than 50 per cent. of those were allowed.
One problem in our asylum system is the Government's inability to enforce their removal decisions, a matter on which we have previously dwelled. One problem is the Government's inability to keep track of asylum seekers. The problems that we see in the newspapers exist further away from the appeal system. By going flat out to restrict appeals and give itself powers, the state is not looking at the problem from the right end of the telescope. In clause 74, the Government are saying, ''We, the Executive, propose to reserve unto ourselves the power to say that a person can or cannot appeal. We are effectively not open to challenge.'' That effectively ties the arms of the judiciary, who are the right people to decide those matters. At the end of the day, is it not right that a free, independent judiciary is utterly to be trusted?
A clause that says quite plainly that an official at the Home Office or an immigration officer may make a certification that could have a profound effect on the life of an applicant is very unhealthy. The Government should take it away and think to themselves, ''While seeking a speedy system, how can we ensure the appropriate involvement of the judiciary at every stage, rather than cutting it out and taking on powers that years ago we would have been rightly reluctant to take on?''
Mr. Gerrard: Subsection (1)(a) states that a person may not appeal if they have been
''notified of a right to appeal . . . against another immigration decision''.
I am sure that many of us know of a significant number of constituents who have been represented by someone unscrupulous or, more often, incompetent. They were not informed that a decision had been taken on their case in time to appeal, or they were informed but the representative neglected to submit the papers that would secure an appeal. I have seen several such cases. How will the clause affect such people? The 1999 Act contains a caveat of reasonableness in deciding whether someone should be granted a second appeal. I am worried about what will happen to people who lose their right to a first appeal through no fault of their own, but through the fault of someone incompetent who is dealing with their case.
I am not clear which circumstances subsection (1)(b) applies to. It stands to reason that people who bring appeals under section 60, which relates to decisions to remove someone from the United Kingdom and deportation orders, are seeking to delay their removal from the United Kingdom.
There is a danger that a clause that denies people the right to appeal via certification will lead to many lawyers seeking judicial review of the decisions. It would be self-defeating to end up substituting a judicial review for an appeal. I have never regarded judicial review as an adequate substitute for a properly heard appeal, as it does not deal with the same issues.
Column Number: 435
Simon Hughes: The Committee has already heard from two well-respected colleagues. I want to add a comment about our grave unhappiness about the amendment, which in effect seeks to remove the first four subsections. We have properly spent much time on the structure of the process of going to an official, going above the official to an independent adjudicator, and going above the adjudicator to an independent appeal tribunal. The amendment would undermine all that at a stroke. It suddenly allows someone on high to intervene and say, ''Sorry, no more process.''
For the different reasons given by colleagues, this is one of the most oppressive and authoritarian clauses, and a change that should be resisted in Committee and on the Floor of the House. The provision has all the tell-tale signs: it talks about the opinion of the Secretary of State or, as the hon. Member for Woking said, an immigration officer, so it can be the opinion of the lowest person in the hierarchy as well as the highest.
The hon. Member for Walthamstow made the point well. The presumption is that everyone has been properly advised and represented at every stage of the process, but over the years my staff and I have spent hundreds of hoursI have no idea how manytrying to undo failures of advice. People have missed deadlines. They have paid money and been told that their case and appeal have been put in when they have not. In reality, the provision means that there is suddenly no justice for those cases at all, and we are not talking about someone's right to get into the final of ''Pop Idol''. This is about the right of people to stay in a safe country, with their family, and all the other issues.
There are various reasons why the provision is unjust. It presumes that the Secretary of State knows best, but someone could have included a case by way of an application or an appeal at a time when that might not have been in their mind or indeed appropriate. Let us consider the list in clause 60(2). There may be one application and one appeal in the pipeline. It may relate to a refusal of leave to enter the UK, because someone was stopped when they arrived at the airport.
In fact, circumstances in the place where the person has come from may have changed, and they may wish to adduce a second ground in relation to the appeal, but that is precluded. The Secretary of State or an immigration officer can intervene and say, ''No, you can't raise that. You should have raised it before.'' There is no opportunity for the person to put their case fairly or for an argument to take place. It seems to me, and to those who do this sort of work every day, that the system is suddenly tilted completely in favour of the Government and the state, and against the applicant.
We are all trying to be brief because we are unreasonably constrained by the guillotine on the Committee, but various clauses from this point onwards are serious, threatening and worrying. This clause is only the first of them. The presumption that the Secretary of State knows best allows for only a potential form of review, which might at best be
Column Number: 436
undertaken on the papers and without any opportunity for argument. However, a person might be represented by someone who is incapable of putting a case well on the papers. I have seen appalling appeal cases made that have omitted all the best points. I have seen solicitors and other representatives charge money for forms that include only the standard words and give no indication of the facts. That makes it clear that they have never read the papers or taken into account what people have said.
The poor people affected, who may speak no English and have no relatives in this country, have to rely on someone in a position of trust and confidence. I am sure that the Minister, in her heart and mind, does not believe that that is a fair system. I ask Ministers, as human beings, to imagine themselves in the position of the applicant and appellant and to realise how oppressive the system is.
I hope that the amendment will be accepted now. If it is not, I hope that the Government will return with alternative drafting. Clause 74(1) is so significantly flawed and oppressive that the only solution is to remove it and start again. It is not justified by the Government saying that they want a streamlined system. This is a streamlined, co-ordinated system with absolute power given in many circumstances to a Secretary of State and no proper recourse to someone outside the Executive. It is wrong. It should not be here and it will be resisted all the way.