Immigration, Asylum and Nationality Bill

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Mr. Humfrey Malins (Woking) (Con): I welcome you to the Chair today, Sir Nicholas. I begin by repeating my thanks to the Minister for his kindness the other day in making his helpful officials available to us on these Benches to discuss the new clauses. I also thank him for his letter about the list of unacceptable behaviours and also for letting us have copies of UN Security Council resolutions 1373 and 1377, which we have read with interest.

The courteous and thoughtful way in which the Minister introduced his new clauses is appreciated by all of us in Committee. We stand united behind the Government in their attempts to combat the scourge of terrorism. He was right to refer to the fact that the backdrops to our debates today are the Terrorism Bill and the appalling events of July. Let no one outside this building think that there is any prospect or possibility of a division between us on our common aim.

In thanking the Minister for the way he has introduced these matters, may I say that in the next few minutes I should like to probe him on new clauses 4, 5 and 6 and to raise some concerns that have been expressed to me. It is our duty as Her Majesty's loyal Opposition to ensure that questions and concerns relating to Government measures are properly raised. The crucial new clause before us is new clause 4, which deals with deprivation of citizenship and develops and changes the present law. We need all to understand, as the Minister will confirm, that this cannot make a
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person stateless. It applies only to persons with dual citizenship.

It is important also to look at what happened in 2002. During our deliberations on the Nationality, Immigration and Asylum Act 2002, we considered the issue of deprivation of citizenship at great length. I recall the hon. Member for Walthamstow (Mr. Gerrard) serving on the Committee at that time. I think he has served on every such Committee over the years. He will recall our lengthy and important debates. The test, after those long debates in Committee, was very different from what is now proposed. Section 4(2) of that Act states:

    ''The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of (a) the United Kingdom, or (b) a British overseas territory.''

We had long and interesting debates about the Secretary of State being satisfied, as opposed to thinking, and about things that might be seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory.

One of the questions that arose then that arises now is the question of an appeal. I am sure that the Minister will be able to confirm that someone whose citizenship is to be taken away under the new measures will, in a sense, have the same rights of appeal that he had under the 2002 Act. At that stage, in what I might call a normal deprivation of citizenship, there was a right of appeal to an adjudicator in the normal way. That is an important protection. If there was a deprivation of citizenship in relation to an issue that we might loosely put under the umbrella of national security and/or terrorism where it was a sensitive area, can the Minister confirm that it was and will remain the case that an appeal will still lie by the aggrieved party to the Special Immigration Appeals Commission—that is to say, the Secretary of State's decision now, and as it was then, is still open to challenge?

9.15 am

Mr. McNulty: I want to clarify and confirm that, save for the exception that I pointed out, which is covered in new clause 4, where forged documents are clearly used and we do not want to expose how we discovered that they were forgeries—that would go straight to SIAC and be private, rather than going to the asylum and immigration tribunal.

Mr. Malins: I am grateful to the Minister. The issue of forgery and fraud cropped up in 2002; I thank him for his confirmation. The new test is conducive to the public good. I am sure we would all agree that that is a much watered-down test compared with the more stringent test under the Act of 2002, because with something that is prejudicial to the vital national interest we have an idea of what is going on, even though there is an element of subjectivity, but saying that something is not conducive to the public good needs a little further explanation from the Minister.

In a sense linked with that, questions arise as to what has been happening in relation to deprivation of
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citizenship in the past. It is my understanding—I hope that the Minister will confirm it—that up to 2002 when the last Act was passed, only one person had previously been deprived of citizenship, so it is a rare occurrence. I should like to know how many persons since 2002 have been deprived of citizenship pursuant to the test laid down in the 2002 Act. The Minister referred to a small but significant number of people who might be envisaged to come within the umbrella of the Act. Will he be more specific? Are we talking about half a dozen, a dozen, or hundreds—roughly how many does he think may be affected? It is important to know how many people have been dealt with under the 2002 Act and perhaps how many people have been prosecuted, and how many people he envisages might come under this umbrella.

Of course, to lose one's citizenship, Sir Nicholas, one has either to have done something or said something. There has to be an activity. Let us focus on the doing. That brings us a little into an overlap with crime and one wonders what the extent of the overlap is—whether the Government think that deprivation of citizenship is better than or different from charging with a criminal offence, because if one commits an act it is almost certain to be a criminal act and prosecution should follow.

Will the Minister envisage and tell us of situations where prosecutions might not take place because there has not been a criminal act and nevertheless deprivation of citizenship is brought into play? Similarly, if one has not done something but said something, the same proviso applies. It might be a crime: if it is, will it be prosecuted? Is deprivation of citizenship to be used instead of a prosecution? I will refer to that in a moment.

I remark in passing—and the Committee will have noticed—that under new clause 4 the Secretary of State has to be satisfied that the deprivation is conducive to the public good, but in new clause 5 there is a different wording. It states,

    ''if the Secretary of State thinks that it would be conducive to the public good''.

There were some powerful debates in 2002 on what is meant by ''thinks'' and ''satisfied''. At the time we thought that ''satisfied'' was a stronger test. Does that mean that ''thinks'' is a weaker test? In any event, one assumes that there is implied in the Secretary of State's decision a need for reasonableness—something that the Minister confirmed in 2002, but I should be grateful if he would comment on it now.

It is instructive to look occasionally at what has been said in the past. The deprivation of citizenship clauses were introduced to the Committee by the hon. Member for Wallasey (Angela Eagle), who was the Minister at the time. There were those who expressed concerns even about the fairly strict test implied by the phrase ''seriously prejudicial''. The Immigration Law Practitioners Association and a number of other outside bodies wanted proper safeguards included and they were right to do so. Of course, they were speaking before we had had the appalling tragedies of July this year. Life moves on, and it does not follow that those bodies would necessarily put what they said then in the same terms now.
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I am sure that the Minister of State will have read the record of the Committee's lengthy debate on those issues very carefully and I shall not quote from it at length. I simply point out that the then Minister confirmed that there was no issue about anybody being left stateless. She said that there was no distinction in law between ''thinks'' and ''is satisfied that''. Does the Minister of State think that that is the case now? Some of us on the Committee took a different view, but if those phrases do mean exactly the same, as the then Minister thought they did, it is perhaps a little odd that we have ''is satisfied'' in one Government new clause and ''thinks'' in the other. Many members of the Committee thought that the term ''thinks'' was rather wide and that the words ''has reasonable grounds to believe'' should have been inserted.

At that stage, the then Minister very properly drew the phrase ''vital interests'' to the Committee's attention, reminding us—this is worth repeating—that it was based on article 8 of the 1961 UN convention on the reduction of statelessness and article 7 of the 1997 European convention on nationality. She was pretty clear that the exercise of the power to deprive someone of their citizenship would be used only in very rare circumstances. In fact, she said that it would apply to someone

    ''in certain circumstances, if they have behaved in ways that amount to treason, problems for national security or interfering with the vital interest of this country.''—[Official Report, Standing Committee E, 30 April 2002; c. 60.]

She went on to say that the behaviour would have to be pretty appalling. That was the position then, and it is important to know how many such persons have been dealt with since and why we now have

    ''conducive to the public good'',

which is a much weaker test. Would the Minister, for example, expect the Secretary of State to act on uncorroborated information from a foreign Government intelligence service without due inquiry into its veracity?

I am sorry to mention the hon. Member for Walthamstow again, but he has a distinguished background on this issue. He was, I think, one of the members of the Committee in 2002 who were at pains to be assured that the reasonableness test would be applied, and I am sure that he feels the same now. We speak from the same book in so many ways on this matter—[Interruption.] The hon. Gentleman is protesting, but I was trying to pay him a compliment. Perhaps I should not have mentioned him, but there we are.

I shall make a few concluding points on this important Government new clause. I understand why the Minister has tabled new clauses, but some people outside this building are a little concerned that the provisions have been tagged on to the Bill, which, after all, relates to asylum and immigration. Concerns have been expressed that if one incorporates what are, in effect, counter-terrorism measures in an immigration and asylum Bill, one thereby sustains the fallacy that there is a connection between asylum and terrorism, which can be a severe misunderstanding and can put innocent people's lives in danger. I really do appreciate
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the Minister's difficulty, but he will understand that concerns have been expressed about that point, and I wonder whether he thinks that the new clauses might better have been tagged on elsewhere. It is a difficult issue—I well understand that—but the Minister would be the first to agree that the general statement that asylum seekers have nothing to do with terrorism but are merely fleeing persecution is one that we should continually repeat and adhere to, notwithstanding the new clauses.

I referred earlier to the importance of prosecuting those who commit acts that might result in the deprivation of citizenship. I remember a comment that Lord Filkin made in the other place in 2002, to which the Minister may care to respond. Lord Kingsland had raised an important point about whether the Government would use the power of deprivation to avoid prosecutions under Acts such as the Terrorism Act 2000 and others. Lord Filkin stated:

    ''I am happy to give a categorical assurance that if we, or rather—I must qualify that—the Director of Public Prosecutions thinks there is evidence, the state would hope that prosecutions would proceed in all such circumstances.''—[Official Report, House of Lords, 9 October 2002; Vol. 639, c. 282–3.]

That was an important statement of principle.

When the Minister tells us how many times deprivation of citizenship has been used since 2002, I hope that he will also tell us how many of those cases involved a prosecution. I hope that he will also confirm Lord Filkin's commitment to Lord Kingsland and assure the Committee that he will not use the new clauses to export risk but rather use extradition law or pursue criminal investigations and prosecutions.

The phrase ''vital interests'' was used in 2002. I remember Lord Filkin stating:

    ''I was also asked about vital interests. Of course, that includes national security, but it also covers economic matters, as well as the political and military infrastructure of our society.''—[Official Report, House of Lords, 8 July 2002; Vol. 637, c. 506–7.]

I hope that the Minister will give some illustrations of the kind of conduct that does not come under the terrorism umbrella but that might lead to deprivation of citizenship on the basis that such deprivation would be conducive to the public good. It is important to make a distinction and to separate off the many forms of such conduct, such as causing economic harm and the like.

It is important that the Minister explain how circumstances have changed to justify the much weaker test of ''conducive to the public good''. What has gone wrong with the law in the past two and a half or three years since the 2002 Act? Can he give us some serious examples of persons who are not covered by the test in the 2002 Act and who do not fall under the previous definition because their conduct is not of that nature but who, nevertheless, are of such a calibre that their citizenship ought to be removed from them? The question of why the extra test is required is important.

The phrase ''conducive to the public good'' is a long-tried concept in immigration law. It is the test that is applied in deportation cases. Could the Minister
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tell us how the new test is intended to differ from the old one in its effect, and the class of activity that would be caught by it? ILPA is one body that is slightly concerned about the way that the phrase ''conducive to the public good'' has been applied in deportation cases over the years.

Subject to what I have said so far, it is not my party's intention to press for a Division on new clause 4. However, it is possibly the most critical new clause that has been proposed, and it is right to probe it.

9.30 am

This is an interesting minor point. Concerns have been expressed about dual nationals. Perhaps the Minister could comment on the following. While British citizens of Jamaican or Zimbabwean parentage might be dual nationals and are thus vulnerable to deprivation, am I right in thinking that British citizens of, for example, Indian or Ugandan parentage are not, because India and Uganda do not permit dual nationality? That anomaly is entirely dependent on the whims of other countries, but the conduct of the person here might not relate at all to his or her country of origin. The Minister will tell us that the new powers will be used only in the rarest of cases. However, he must accept that there is a fundamental difference between being seriously prejudicial and vital to the national interest of the country and the new test of public good. There are concerns about that drop in standard, so he needs to justify it to us.

Briefly, on new clause 5 on deprivation and right of abode, it is proper that any proposal to deprive people of their right of abode should attract no less protection than a power to deprive people of citizenship. The test in the new clause is that the Secretary of State ''thinks'' that the person's exclusion or removal would be conducive to the public good, as opposed to being ''satisfied''. The Minister has a duty to tell us why there is that difference, particularly given that his predecessor said that the words meant the same thing. If they mean the same thing, it is interesting that they have been used separately. Why is a different test applied to deprivation of the right of abode? What right would a person deprived of a right of abode have to challenge his exclusion, if not in the UK, or removal if here? Would there be opportunities to present human rights arguments, both against deprivation of the right of abode and against exclusion or removal? Would people deprived of a right of abode have any opportunity to challenge their exclusion or removal from the UK? Given the seriousness of the loss of rights associated with the loss of right of abode, would the Government consider amending the clause to provide protection against retrospective application of the new powers?

Finally, new clause 6 deals with good character. It is an interesting anomaly that citizens by naturalisation are subject to the good character test, but the registration process is not subject to that test. Can the Minister let us know what he means by bad character? Again, we support the general thrust of the measure, but bad character in our criminal courts has a meaning of its own. If you or I, Sir Nicholas, appear
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before a district judge at Bow street, both of us are entitled to say to the district judge—formerly chief stipendiary magistrate—''I am a man of good character'', and that is taken into account as evidence of our lack of propensity to have committed the offence in question. Arguments often arise as to whether a person is of good character if he committed one shoplifting offence 26 years ago. Then we move into the realms of spent conviction. The issue of bad character is a thorny one in our courts. Can the Minister tell us a little more about what is meant by bad character? We would appreciate that.

The Minister has already alluded to my last point on clause 6, which concerns children. Is it appropriate to impose a good-character test in the case of children, some of whom will be very young? A comment on that would be greatly appreciated.

I have said all that I wish to say on the new clauses and the amendments to them. I conclude with two remarks that I wish to reinforce with all the intensity of which I am capable. First, it is our duty to probe the Government and to raise concerns that have been expressed elsewhere. Secondly, it is my duty—one that I carry out with great pleasure—to thank the Minister and his staff for their courtesy in assisting us with the new clauses. I remind him and those outside that our common objective must be, and will always remain, the same. We are here to probe and to express the concerns, with which we agree in some part, that have been raised with us. Our fundamental position remains four square behind the Government.

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