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Session 2005 - 06
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Standing Committee Debates
Immigration, Asylum and Nationality Bill

Immigration, Asylum and Nationality Bill




 
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Standing Committee E

The Committee consisted of the following Members:

Chairmen:

Sir Nicholas Winterton,

Mr. Eric Illsley

†Bellingham, Mr. Henry (North-West Norfolk) (Con)
†Brown, Lyn (West Ham) (Lab)
†Burnham, Andy (Parliamentary Under-Secretary of State for the Home Department)
†Gerrard, Mr. Neil (Walthamstow) (Lab)
†Gillan, Mrs. Cheryl (Chesham and Amersham) (Con)
†Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
†Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
†Kawczynski, Daniel (Shrewsbury and Atcham) (Con)
†Leech, Mr. John (Manchester, Withington) (LD)
†Mahmood, Mr. Khalid (Birmingham, Perry Barr) (Lab)
†Malins, Mr. Humfrey (Woking) (Con)
†McCarthy-Fry, Sarah (Portsmouth, North) (Lab)
†McNulty, Mr. Tony (Minister for Immigration, Citizenship and Nationality)
†Miliband, Edward (Doncaster, North) (Lab)
†Prosser, Gwyn (Dover) (Lab)
†Ryan, Joan (Lord Commissioner of Her Majesty’s Treasury)
†Scott, Mr. Lee (Ilford, North) (Con)
Dr. John Benger, Mr. Frank Cranmer, Committee Clerks
† attended the Committee


 
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Thursday 27 October 2005
(Afternoon)

[Sir Nicholas Winterton in the Chair]

Immigration, Asylum and Nationality Bill

1 pm

The Chairman: The Committee made excellent progress this morning. When we adjourned the Minister had just started to speak to new clause 1.

New Clause 1

Asylum and human rights claims: definition

    ‘(1)   Section 113(1) of the Nationality, Immigration and Asylum Act 2002 (appeals: interpretation) shall be amended as follows.

    (2)   For the definition of “asylum claim” substitute—

    ““asylum claim”—

      (a)   means a claim made by a person that to remove him from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention, but

      (b)   does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules,”.

    (3)   For the definition of “human rights claim” substitute—

    ““human rights claim”—

      (c)   means a claim made by a person that to remove him from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights, but

      (d)   does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules,”.”.—[Mr. McNulty.]

Brought up, and read the First time.

Second Reading moved [this day.]

The Minister for Immigration, Citizenship and Nationality (Mr. Tony McNulty): I hope that you managed to have lunch today, Sir Nicholas.

The Chairman: No, I did not.

Mr. McNulty: I am sorry. Let us therefore dispatch this afternoon’s proceedings with the same alacrity as this morning’s.

In essence, new clause 1 is one of the less contentious or complex matters before us. It does two things. Section 113 of the Nationality, Immigration and Asylum Act 2002 states that an asylum claim and a human rights claim are claims made by a person to the Secretary of State at a place designated by the Secretary of State. In other words, all applications have to be made in person. We prefer to have the flexibility as expressed in new clause 1 that claims under this heading be made, but not necessarily and statutorily, in person. Not everyone can claim in person. We need the flexibility to accommodate the
 
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seriously ill, for instance. Furthermore, it is not usually necessary for a person’s identity to be examined more than once. That can be done in the first instance.

Swapping the primary legislation for immigration rules under clause 42 will give us the flexibility to provide that not all asylum or human rights claims need to be made in person. Immigration rules will also allow us to make explicit provision for special arrangements in exceptional cases such as serious illness, which we are not allowed to do under the existing statute.

New clause 1 also clarifies that further submissions made by a claimant after his asylum or human rights claim has already been decided will not amount to another asylum claim or human rights claim for appeal purposes, if it has been decided in accordance with the immigration rules that the further submissions do not amount to a fresh claim. They may amount to that, but it should not follow that in every instance that they do. The relevant provision of the immigration rules is paragraph 353.

To be regarded as a fresh claim, further submissions must be significantly different from the original claim. This means that the content of the submissions must not already have been considered and must, when taken together with the material considered previously, create a reasonable prospect of success. It is important that the legislation is clear that a claimant whose further submissions are determined not to amount to a fresh claim will not have another right of appeal. Underpinning the rule in primary legislation will create greater certainty in its application. Without trying to provoke cynicism and suspicion, we believe that this is a helpful new clause which tidies things up. We will come on to debate matters of more substance.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 2

Failure to provide documents

    ‘After section 88(2)(b) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal: ineligibility) insert—

      “(ba)   has failed to supply a medical report or a medical certificate in accordance with a requirement of immigration rules,”.’.—[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 3

Arrest pending deportation

    ‘At the end of paragraph 2(4) of Schedule 3 to the Immigration Act 1971 (c.77) (deportation: power to detain) insert “; and for that purpose the reference in paragraph 17(1) to a person liable to detention includes a reference to a person who would be liable to detention upon receipt of a notice which is ready to be given to him.”.”.—[Mr. McNulty.]

Brought up, and read the First time.

Mr. McNulty: I beg to move, That the clause be read a Second time.


 
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I congratulate the Clerk on remembering new clause 2, which has sort of been the legislative equivalent of a hanging chad; it was floating around somewhere in our deliberations. I momentarily forgot about it, so my apologies for that.

This matter should be straightforward. The clause confirms that the power of arrest in deportation cases is available when notice of intention to deport is ready but has not yet been given to a prospective deportee. The clause will ensure that immigration officers and constables can continue to seek a warrant to enter named premises in order to search for and arrest a prospective deportee and serve him with a notice of decision to deport.

I assure the Committee that all previous warrant applications were lawful; they were properly made and lawfully granted. The new clause effectively puts into statute the current practice, which is entirely lawful. I commend the clause to the Committee.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): I am grateful to the Minister for his explanation, and to the Home Office team who took me through the issue. I understand the Minister’s point, which is that the new clause puts beyond doubt the fact that a judge can issue such a warrant in the kind of case mentioned. However, the Immigration Law Practitioners Association has put a number of points to me relating to how the clause may go wider than the point that the Minister seeks to deal with. I would be grateful if he would clarify the matter.

First, do the new powers apply, as they appear to do, only to cases in which a warrant is obtained, or are they sufficiently broad to allow immigration officers or constables to arrest a person without a warrant for the purpose of serving a notice under schedule 2(17)(1) of the Immigration Act 1971? Or are we just moving the doubt about whether such officers can do that to this new area? Secondly, are the powers strictly related to cases in which there is a question as to whether an act of terrorism or a related act applies? Or do the powers apply—as they appear to do—when there is some other reason why people would need to be arrested, detained and removed, such as in cases involving selling drugs, for example?

There is a question about the extent to which immigration officers are bound by the same rules as the police. I suspect that the subject has been debated before, but I shall briefly set out my concern, and perhaps the Minister can deal with it. Part 7 of the Immigration and Asylum Act 1999, which was modelled to a large extent on the Police and Criminal Evidence Act 1984, amended the Immigration Act 1971 to give immigration officers powers of arrest and search that were previously the sole province of the police. Subsequent legislation has extended these powers.

Section 145 of the 1999 Act provides for immigration officers to have regard to codes of practice when exercising these powers. The codes are the Immigration (PACE Codes of Practice) Direction 2000, and the Immigration (PACE Codes of Practice No. 2 and Amendment) Direction of 19 November 2000. They apply parts of the PACE codes to
 
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immigration officers. However, some safeguards that apply to police officers do not apply to immigration officers, such as the requirement to give one’s name when conducting certain searches. Can the Minister clarify whether that is the intention of the codes? If so, what is the justification for having any difference? One might argue that, if anything, the requirements in the guidelines ought to be the stricter ones. In passing, I have been told that it is hard to find those codes of practice. Perhaps the Minister will take note of that and ensure that they are easier to find.

I had intended to raise my last point in any case, but it has been reinforced by what ILPA has said. It relates to complaints about poor practice by immigration officers; indeed, it also applies to the detention estate, but I shall restrict my remarks to the situation before us. In cases where there is a question of the police being out of line with acceptable practice in executing warrants or making arrests, we have the Independent Police Complaints Commission and relatively independent procedures. However, it is not clear what the equivalent independent complaints mechanism is for immigration officers.

People can go through the complaints procedure at the immigration and nationality directorate, and I have instigated several complaints about escorts for detainees. I have not yet heard the outcome, however, even though it has been months, or even years, since I made those complaints, so it is not clear to me that the procedure is readily accessible. That aside, the procedure is not independent. Given that immigration officers are increasingly used to dealing with matters previously dealt with by the police, I would be grateful if the Minister could clarify whether there is any independent means of complaint to ensure that immigration officers properly exercise their powers and that, for example, they use reasonable force. I would be grateful if he could give me some clarification on those questions.

Mr. McNulty: As I understand it, the new clause relates to arrest and detention pending deportation and is not specific to terrorism; it is simply broadening things out. Given that it refers only to arrest and detention pending deportation and not to arrest for criminal offences, PACE does not apply. That has always been the case.

This is not germane to the Bill, but we are looking to include independent complaints monitoring of immigration enforcement powers by the Independent Police Complaints Commission in the safer communities Bill or some other legislative vehicle, although it is not for me to say where. I think that we looked at it in the context of this Bill, but that it was beyond the Bill’s scope, although if that is wrong, I shall certainly correct what I have said. None the less, I take the point about there being some overarching independent monitoring body.

Dr. Harris: I welcome that statement because I believe that Anne Owers, Her Majesty’s chief inspector of prisons, shares that concern, although I would not want to quote her directly. We had a meeting with her and a refugee group at which this very
 
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question was raised, and I am extremely grateful that specific proposals could be included in a Bill. If they could be included in this Bill, that would be beneficial, although I accept that it is a question of whether they would be in order, given the long title. However, I encourage the Minister to go down that path quickly because there have been a number of complaints, and it would be helpful to clarify whether they are justified through an independent body.

Mr. McNulty: I do not have the information to hand, but I would not over-egg the point about complaints. They are dealt with in an appropriate fashion; in many cases, that is done by inquiry, and the inquiry is followed up, particularly in the case of detention facilities. The hon. Gentleman will know that we seek in clause 39 to fill some of the gaps as regards short-term holding facilities and escort duties, which he mentioned. It is right and proper that we do that. I will be discussing a range of issues at a meeting with Anne Owers, Her Majesty’s chief inspector of prisons, and the respective children’s commissioners for England, Scotland and Wales, which will be useful, not least as regards the issues on which we are deliberating. I am certainly alive to those issues.

On the hon. Gentleman’s last point, a person can be arrested without warrant pending deportation. The warrant is more about the ability to gain entry to and search premises to effect the arrest. As I understand it, the warrant is not required in the first instance to arrest someone pending deportation.

The hon. Gentleman’s questions are all entirely fair, and I hope that I have dealt with them. With that in mind, I commend the new clause—again, I think—to the Committee.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 4

Deprivation of citizenship

    ‘(1)   For section 40(2) of the British Nationality Act 1981 (c. 61) (deprivation of citizenship: prejudicing UK interests) substitute—

    “(2)   The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.”

    (2)   At the end of section 40A(3) of that Act (deprivation: appeal) add—

      “, and

      (e)   section 108 (forged document: proceedings in private).”;

    (and omit the word “and” before section 40A(3)(d)).’. —[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 5

Deprivation of right of abode

    (1)   After section 2 of the Immigration Act 1971 (right of abode) insert—

    “2A   Deprivation of right of abode


 
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    (1)   The Secretary of State may by order remove from a specified person a right of abode in the United Kingdom which he has under section 2(1)(b).

    (2)   The Secretary of State may make an order under subsection (1) in respect of a person only if the Secretary of State thinks that it would be conducive to the public good for the person to be excluded or removed from the United Kingdom.

    (3)   An order under subsection (1) may be revoked by order of the Secretary of State.

    (4)   While an order under subsection (1) has effect in relation to a person—

      (a)   section 2(2) shall not apply to him, and

      (b)   any certificate of entitlement granted to him shall have no effect.”

    (2)   In section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (right of appeal: definition of immigration decision) after paragraph (ia) insert—

      “(ib)   a decision to make an order under section 2A of that Act (deprivation of right of abode),”.’.—[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 6

Acquisition of British nationality &c.

    (1)   The Secretary of State shall not grant an application for registration as a citizen of any description or as a British subject under a provision listed in subsection (2) unless satisfied that the person is of good character.

    (2)   Those provisions are—

      (a)   sections 1(3) and (4), 3(1), (2) and (5), 4(2) and (5), 4A, 4B, 4C, 5, 10(1) and (2), 13(1) and (3) of the British Nationality Act 1981 (c. 61) (registration as British citizen),

      (b)   sections 15(3) and (4), 17(1), (2) and (5), 22(1) and (2), 24, 27(1) and 32 of that Act (registration as British overseas territories citizen, &c.),

      (c)   section 1 of the Hong Kong (War Wives and Widows) Act 1996 (c. 41) (registration as British citizen),

      (d)   section 1 of the British Nationality (Hong Kong) Act 1997 (c. 20) (registration as British citizen), and

      (e)   article 6(3) of the Hong Kong (British Nationality) Order 1986 (S.I. 1986/948) (registration as British Overseas citizen).

    (3)   Where the Secretary of State makes arrangements under section 43 of the British Nationality Act 1981 for a function to be exercised by some other person, subsection (1) above shall have effect in relation to that function as if the reference to the Secretary of State were a reference to that other person.”. —[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 7

Refugee Convention: construction

    (1)   In the construction and application of Article 1(F)(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular—

      (a)   acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and

      (b)   acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).

    (2)   Where the Secretary of State rejects an asylum claim wholly or partly on the grounds that Article 1(F) of the Refugee Convention applies, or makes any other decision wholly or partly in reliance on the application of that Article, the Asylum and Immigration Tribunal or the Special Immigration Appeals Commission—


 
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      (a)   must begin its consideration of the Refugee Convention on any appeal in which the rejection or decision is to be considered by considering whether or not Article 1(F) applies, and

      (b)   if it concludes that Article 1(F) applies, must dismiss the appeal in so far as it relies on the Refugee Convention.

    (3)   In this section—

    “asylum claim” means a claim by a person that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom’s obligations under the Refugee Convention,

    “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and

    “terrorism” has the meaning given by section 1 of the Terrorism Act 2000 (c. 11).

    (4)   Section 72(10)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal: Tribunal or Commission to begin by considering certificate) shall have effect subject to subsection (2)(a) above.’.—[Mr. McNulty.]

Brought up, and read the First time.

1.15 pm

Mr. McNulty: I beg to move, That the clause be read a Second time.

The Chairman: With this we may discuss the following: amendment (a), in line 4, leave out paragraphs (a) and (b) and insert

    ‘offences set out in section 1(1), 2, 5, 6, 8, 9, 10 or 11 of the Terrorism Act 2006.’.

Government new clause 8—Appeals: deportation—

    (1) After section 97 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeals: national security) insert—

    “97A   National security: deportation

      (1)   This section applies where the Secretary of State certifies that the decision to make a deportation order in respect of a person was taken on the grounds that his removal from the United Kingdom would be in the interests of national security.

      (2)   Where this section applies—

        (a)   section 79 shall not apply,

      (b)   the Secretary of State shall be taken to have certified the decision to make the deportation order under section 97, and

      (c)   for the purposes of section 2(5) of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeals from within United Kingdom) it shall be assumed that section 92 of this Act—

      (i)   would not apply to an appeal against the decision to make the deportation order by virtue of section 92(2) to (3D),

      (ii)   would not apply to an appeal against that decision by virtue of section 92(4)(a) in respect of an asylum claim, and

      (iii)   would be capable of applying to an appeal against that decision by virtue of section 92(4)(a) in respect of a human rights claim unless the Secretary of State certifies that the removal of the person from the United Kingdom would not breach the United Kingdom’s obligations under the Human Rights Convention.

    (3)   A person in respect of whom a certificate is issued under subsection (2)(c)(iii) may appeal to the Special Immigration Appeals Commission against the issue of the certificate; and for that purpose the Special Immigration Appeals Commission Act 1997 shall apply as to an appeal against an immigration decision to which section 92 of this Act applies.

    (4)   The Secretary of State may repeal this section by order.”.’.

    (2)   In section 112 of that Act (regulations, &c.) after subsection (5A) insert—

    “(5B)   An order under section 97A(4)—


 
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      (a)   must be made by statutory instrument,

      (b)   shall be subject to annulment in pursuance of a resolution of either House of Parliament, and

      (c)   may include transitional provision.”.’.

And the following amendment thereto: (a), in line 33, leave out subsection (4).

 
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Prepared 28 October 2005