Nationality, Immigration and Asylum Bill

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Mr. Mark Lazarowicz (Edinburgh, North and Leith): The Minister has just said that if the applicant could not put forward the grounds of an appeal at an earlier stage, the case would be certified. However, the proposals do not provide an opportunity for the applicant to make such an application at an earlier

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stage. That possibility is not set out automatically in the proposals; everything rests on the discretion of the Secretary of State and the immigration officer.

Ms Winterton: Certification applies once there has been an appeal, or an opportunity to appeal against an earlier decision. The point of that is to enable the appellant to make a fresh application if new evidence has come forward. The process attempts to ensure that all the grounds for appeal are stated in the first instance and, unless the circumstances have changed, it is not possible after the first appeal to raise other matters that could have been raised at that appeal. That does not seem to be unreasonable. The section 92 claim form states very clearly that all matters that need to be taken into consideration at the appeal need to be raised—there is very clear advice on that.

After the appeal is heard, if other reasons are brought forward that could have been heard at the earlier appeal, the case can be certified unless circumstances have changed. There is always a safeguard that if circumstances have changed, the process would not necessarily lead to certification. Certification is used sparingly, and we shall ensure that it continues to be used under specified guidelines, so that people are aware that it is not to be used lightly. However, it will be used when anything that was relevant to the first appeal should have been raised at the time. Otherwise, we cannot overcome the problems that we face of people giving one reason after another.

9.15 pm

Mr. Malins: I remind the Minister that a power remains a power regardless of whether it is used sparingly. Is she saying that under the clause no certification can apply until the adjudicator has been seized of one set of appeals? I asked earlier whether certification could kick in before the matter ever got near an adjudicator, and I did not receive an answer.

Ms Winterton: No, certification applies once there has been an appeal or an opportunity to appeal. That is important. That is why I said that the provision would extend to people who choose not to appeal and subsequently want to do so. It is important to state that, if people give reasons for appealing, they must be included at that stage. That overcomes the problem of people giving one reason after another. However, the opportunity to introduce new circumstances is always available, which is an important safeguard.

Simon Hughes: I sense the Minister's difficulty. To put it bluntly, I am sure that she did not dream up the idea.

We have all referred to cases in which it is not the circumstances that have changed, but the advice and understanding of rights. To put it bluntly again, a person who has received lousy advice from someone who did not know what they were doing may have become the responsibility of an organisation, such as the Refugee Legal Centre or the IAS, that knows what it is doing. That would be precluded. What is the merit in the Government wanting the power for themselves? Surely politics dictates that it is better to leave the

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decision to the courts, or the Government will get all the flak all the time for all unfair decisions. I do not understand the politics—unless the Government want to become much more unpopular. Surely they do not want to court unpopularity.

Ms Winterton: We are building on the existing system. We believe that it has been successful, so we want to extend it to other aspects. Keeping the matter in the hands of the Secretary of State or immigration officers allows discretion at any time, and that flexibility is important. This is not a great sea change. In the case of Onibio, the court decided that it was important for the Home Office to make the decision about whether there had been a substantial and material change.

In deciding whether to certify, the reason a matter was not raised earlier must be considered. If the matter had to be referred to an adjudicator, that would not necessarily deter sequential applications, which can go to the adjudicator each time a new matter is raised. We are building on the system that we already have. The provision is an important part of streamlining the process and making sure that we can hear appeals efficiently and quickly, and hear all the evidence and grounds for appeal at one time. I hope that hon. Members will feel able to support the provision.

Simon Hughes: We are absolutely not persuaded, and I think that on reflection the Ministers will realise that the case is weak. The remedy is to take out the clause and deal with the matter later. Although the hon. Member for Woking is, of course, free to make his own decision, we would rather reserve our arguments for a clause stand part debate than press the matter to a vote now. We are keen to get the provision out of the Bill, and will try to do so to the best of our ability. If we do not succeed tonight, we will pursue the matter elsewhere.

Mr. Malins: It gets worse. As the debate has proceeded, I have realised, as I suppose I should have done from the beginning, that the clause is really saying that someone may never see an adjudicator at all—turned down, certified, goodbye. That is what the provision boils down to, and no one can deny that. That is bad enough, but when that is coupled with the fact that all the powers of the provision are kept by the Secretary of State unto himself, one remains profoundly unhappy.

I venture to suggest that if a similar mechanism were inserted into a criminal justice Act in relation to the criminal law of the country, there would be an outcry the likes of which we have never heard before. I also venture to suggest—and this is why I am not going to press my amendment to a vote—that there are many Labour Members who, although they have not said anything, feel profound sympathy with the argument deployed by the Opposition. I do not mean it unkindly, but if given a free vote, those Members would support the amendment. However, there are also Labour Members who have spoken against it.

This is an important matter of principle. I shall not put it to the test through my amendment, but I sense a feeling on the Labour Benches that there is merit in

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much of what has been said. I also sense that the Ministers are defending the clause by saying what they have been instructed to say—I do not use the word ''instructed'' lightly—by their civil servants. Their defence of the civil service position is at best unenthusiastic. The matter is a real mess. We will have to come back to the subject on Report, and when we do I shall look to Labour Members to speak, and to Government Ministers to understand, which by now they surely must, that the clause creates profound problems that they must resolve.

Mr. Parmjit Dhanda (Gloucester): I have been listening attentively to what the hon. Gentleman and the hon. Member for Southwark, North and Bermondsey have said. The hon. Gentleman is quite right; these are important issues. He talks almost knowingly about Labour Back-Benchers, but hon. Members from both sides of the House should be present for such a debate. Members of Opposition parties should not be on their own.

Mr. Richard Allan (Sheffield, Hallam): I am here.

Mr. Dhanda: I see two Liberals but only one Tory.

Mr. Malins: The hon. Gentleman is a decent Member of Parliament who contributes. I do not know how worthy his comment was of him, as he knows that my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) is unwell.

Mr. Dhanda: What about the other two?

Mr. Malins: Well, there we are. An argument is no less an argument because it is put forward by one person. At the moment, it is just me on the Conservative Benches, but that has not always been the case, and perhaps will not always be so. That is about as far as I can usefully go. I accept the gentle chiding of the hon. Gentleman, which was meant in good spirit. I shall file it away for future reference. For the reasons that I have put forward, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 358, in page 38, leave out line 7 and insert—

    '(1) An appeal under section 60(1) against an immigration decision in respect of a person may not be brought or continued'.

No. 359, in page 38, leave out from beginning of line 17 to 'if' in line 18 and insert—

    '(2) An appeal under section 60(1) against an immigration decision in respect of a person may not be brought or continued'.—[Ms Rosie Winterton.]

Mr. Malins: I beg to move amendment No. 410, in page 39, line 3, at end add—

    '(7) Subsections (1) to (4) do not apply unless the Secretary of State has reasonable grounds to believe that the person has been given legal advice subject to regulation or exemption by the Immigration Services Commissioner.'.

The Chairman: With this we may take clause stand part.

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Mr. Malins: This is a brief amendment. It does not overcome the fundamental objections to subsections (1) to (4), but it places on the Secretary of State an obligation, subject only to reasonable belief rather than the need to be satisfied, not to deny rights of appeal unless a person has had access to competent legal advice. It is a minimum safeguard against the abuse of Executive power in the offending provisions.

Simon Hughes: We, too, subscribed to the amendment, which provides a fallback position as an additional safeguard. Speaking on behalf of the 100 per cent. party, my hon. Friend the Member for Sheffield, Hallam and I—there would be more of us if it were allowed, but it has something to do with the unfair electoral system, although that is another debate—believe that the clause as a whole is thoroughly undesirable. The hon. Member for Woking, unusually unfairly, attributed the idea to civil servants. My hon. Friend served on the Committee that considered immigration and asylum legislation three years ago. The idea for increasing consolidation with reduced opportunities for external adjudication emerged from the then Secretary of State. I did not sit on that Committee, and assumed my responsibilities only in the dying days of that Bill's return to the Floor of the House. The previous Home Secretary did not expressly contemplate the sudden replacement of independent legal decision making for Home-Secretary decision making.

I cannot think of another example, whether in criminal courts, employment or social security tribunals, in which the judicial authorities—in this case, an adjudicating tribunal—have their powers circumscribed by a civil servant or a Minister, thereby preventing the customary independent adjudication. I do not understand any argument for preventing the adjudicator of a tribunal from declaring an abuse of process and disallowing a case. I am against abuse of process, but it should be invoked to deal with those who cause it rather than the victims of it. That is the key issue.

My hon. Friend the Member for Sheffield, Hallam and I will divide the Committee on the clause, and if Labour Members cannot support the clause, I hope that they will do themselves, their constituents and the Committee the courtesy of abstaining so that the more widespread discontent can be manifest.

9.30 pm

This is the last opportunity in Committee for Labour Back Benchers to gain their spurs. I remind many that in the last Parliament, arguments put from the Back Benches one year became the Government view the next. It is often worth being ahead of the Government. Sometimes it is a way of getting into government, and the belief that standing up for what one believes in is a way of ensuring that one stays on the Back Benches is clearly not true. Even nice ladies such as the hon. Member for Stirling (Mrs. McGuire) will not always be in the Whips Office, and there may be a new regime. I hope that there will be some support so that we can show that we do not like the new clause.

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If we do not remove it from the Bill tonight, I hope that it will be put out soon. I do not believe that it will survive the House of Lords if it gets that far.

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