Draft Nationality, Immigration and Asylum Act 2002 (Consequential and Incidental Provisions) Order 2003 Column Number: 003

Thirteenth Standing Committee
on Delegated Legislation

Wednesday 19 March 2003

[Mr. Nigel Beard in the Chair]

Draft Nationality, Immigration
and Asylum Act 2002
(Consequential and Incidental Provisions)
Order 2003

2.30 pm

The Minister for Citizenship and Immigration (Beverley Hughes): I beg to move,

    That the Committee has considered the Draft Nationality, Immigration and Asylum Act 2002 (Consequential and Incidental Provisions) Order 2003.

It is a pleasure to serve under your chairmanship for the first time, Mr. Beard. I am sure that this will be a very interesting sitting.

I start by reminding members of the Committee of the context in which we are debating the order today. As hon. Members will know, the Nationality, Immigration and Asylum Act 2002 received close scrutiny during all parliamentary stages. A large amount of material was added to, or amended in, the Bill during its passage, reflecting the developing nature of nationality, asylum and immigration policy in response to events in the real word and the much valued scrutiny of the Bill in this House and in another place.

Ideally, every last consequential and incidental provision would usually be settled before Royal Assent was given. In this case, both Houses gave the NIA Bill the closest scrutiny right up to its final stages, and several new substantial provisions were added. As we explained at the time, we could not work through the consequential implications in the time available, so Parliament agreed the need for a power that would allow us to do so later by affirmative order.

In simple terms, the order allows for the amendment of previous statutes that are affected by the coming into force of the various provisions of the 2002 Act. Those are mainly appeals and nationality measures in the Act, and I hope that we can focus on the specific consequential implications. There are 16 paragraphs in the schedule to the order. Paragraphs 2, 3, 4, 8 and 9 relate to nationality. Paragraph 11 relates to appeals. The remaining 10 paragraphs make miscellaneous amendments that relate mainly to definitions and the insertion or substitution of wording.

Several nationality provisions in part 1 of the 2002 Act are also due to begin in April. They include deprivation of citizenship and several categories relating to registration of citizenship. The required consequential amendments relate to deprivation and the ceremonies associated with citizenship. The amendments to nationality legislation are extensive and are listed sequentially with all the other provisions in the order. I could list them if hon. Members wanted me to, but I shall not at this stage, as they are in the

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explanatory notes, which we have tried to make very clear so that hon. Members can understand them.

The consequential amendments that relate to appeals are particularly important as they amend section 12 of the Immigration and Asylum Act 1999. Without them, the new appeals framework in part 5 of the Nationality, Immigration and Asylum Act 2002 could not operate. Section 93(2)(b) of the 2002 Act, which replaces section 73(2)(a) of the 1999 Act when it commences, also includes new provision on the certification of clearly unfounded claims by the Secretary of State. Part 5 is also due to commence on 1 April.

Although the provisions are technical and detailed, I hope that hon. Members will agree that the explanatory memorandum gives a clear account of the amendments, their effect and the statutes that will be amended.

Approximately 70 per cent. of the 2002 Act will have commenced by 1 April. It is a reflection of the Government's commitment to radical improvement of immigration systems that so much of the new legislation should be in force in so short a time. Hon. Members who were present last week will have heard me speak about the success of one element of the 2002 Act—non-suspensive appeals—and the reasons for extending the list of safe countries.

Applications from principal applicants from the original 10 countries set out in the Bill have fallen dramatically since the introduction of non-suspensive appeals. There were 40 principal applications in January 2003 compared with 275 in October 2002—a decrease of more than 85 per cent. About 85 per cent. of decided cases have also resulted in the removal of the failed applicants. We want to continue with that improvement.

Mr. David Cameron (Witney): While the Minister talks of the success of the Act, could she provide more detail about the effect of yesterday's court case which, although it does not, as I understand it, affect the principles of the law, changes the practice in relation to those who come to this country and do not claim asylum straight away? Is there not a danger that people may be advised, when they claim asylum, to say, ''Actually, I arrived here yesterday'', and as a result stay here longer than they should?

Beverley Hughes: As my right hon. Friend the Prime Minister made clear today, because of the detail of the judgment we do not expect the result that the hon. Gentleman anticipates. That is because on the fundamental points of law, which, rather than the six cases, formed the basis of the appeal, the Court of Appeal overturned the High Court decision. Because the Court of Appeal decided that the burden of proof is on the applicant, a more extended interview will be needed to provide an opportunity to deal with that burden of proof. That interview should probe the principal applicant's story. Often, at the outset of an interview, an applicant chooses to say very little, but those responses should not simply be taken as read.

We had already instituted changes to the procedure at the point at which the High Court made a decision. We are well into implementation of the new procedure,

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and because the law is with us, we do not expect the delay anticipated by the hon. Gentleman.

Mr. Dominic Grieve (Beaconsfield): What about those parts of the judgment relating to the possibility of passive discrimination? Will they seriously influence the workability of the system that the Government intended to operate?

Beverley Hughes: As one would expect, we are now examining the detail of the judgment. We do not expect the issue to be a problem, because the process, including the conduct of interviews, will take account of that remote possibility. We shall certainly bear it in mind as we implement the process.

The consequential and incidental amendments in the order are necessary to ensure that previous legislation that is affected by the coming into force of various provisions of the 2002 Act is compatible with the new legislation. The order forms a small but vital part in the restructuring of the appeals and nationality systems. I commend the order to the Committee.

2.39 pm

Mr. Grieve: I can reassure the Minister that I do not intend to take much of the Committee's time on the statutory instrument. I accept that much of it is consequential on the Bill, putting into operation what was intended, so many of the paragraphs of the schedule are fairly innocuous.

I should like to pick up on a couple of matters, starting with the subject of my brief intervention, and that of my hon. Friend the Member for Witney (Mr. Cameron) a moment ago, on how the 2002 Act may or may not work to speed up the processing of asylum application claims, and the impact on it of yesterday's judgment. In the light of the explanatory notes, I wonder about paragraph 11. Perhaps the Minister will tell us what would be the frequency and the likelihood that the powers would enable an asylum seeker to be sent to a third country for the determination of their claim, on the basis that they would not face persecution, or refoulement, in breach of the refugee convention. Is that likely to happen in practice? If we are to implement that measure, it would be helpful for the Committee to have some indication from the Government of how often, in practice, that might enable them to send someone to a third country, rather than keep them here. Looking at such matters from my own experience, I should have thought that such a thing would be rare, but perhaps I am mistaken. How many cases per annum does the Minister expect might fall in that category?

Of course, as the explanatory note says, if a person makes a human rights claim, appeal rights may, under certain circumstances, be exercised in the UK. That could have some bearing on the number of people who would be removed under the mechanism and who would have their asylum applications determined elsewhere. That is the principal point on which I seek clarification. The other measures appear relatively straightforward and, although they are by no means without their own complexities, they seem, at least, to follow logically from debates on the 2002 Act.

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2.42 pm

Mrs. Annette L. Brooke (Mid-Dorset and North Poole): The Liberal Democrats do not seek to oppose the order, because we recognise that it is incidental and consequential to the 2002 Act. I hope that the Minister will forgive me; she will be aware that I have not had many dealings with the Act. My hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) is otherwise engaged. I shall take the opportunity to ask a few questions and repeat a few concerns.

The Minister has explained clearly the reasons for the order. However, does she know how many more orders of this kind we might expect? I understand that section 94 will be implemented on 1 April. Perhaps the hon. Lady will tell us whether the provisions will be at all dependent on an evaluation of the transitional provisions. The Minister will be aware that the Liberal Democrats have argued that the list of countries to which the certification procedures apply should be scrutinised and examined by the independent advisory panel on country information. We remain concerned that that has not been set up yet.

The transitional provisions have now come into force. Exactly how many unfounded claims have been certified? I also understand that many certifications as unfounded have been overturned on appeal. Perhaps the Minister will give us some more details about those.

Yesterday, an announcement was made about the use of Harmondsworth for fast-track procedures. I want to tease out some relevant points on that matter. First, why has it been necessary also to use Harmondsworth? We understand that Oakington is underused. Moreover, can the Minister confirm that the procedures that will be followed in Harmondsworth will be parallel to those in Oakington, and that they will not be new or different? Will the Minister assure us that people in Oakington will be kept for the minimum time necessary, and what sort of time is she aiming for? How will families with children be dealt with?

Tomorrow, the Lord Chancellor is due to issue new rules for asylum appeals adjudicators. The draft rules were published and consulted on, but I should like clarification on them. Does the Minister expect those rules to be different from the draft, and was there a great deal of response to the consultation?


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