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Session 2006 - 07
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Public Bill Committee Debates

Statement of Changes in Immigration Rules

The Committee consisted of the following Members:

Chairman: Mr. Bill Olner
Atkins, Charlotte (Staffordshire, Moorlands) (Lab)
Blunt, Mr. Crispin (Reigate) (Con)
Campbell, Mr. Alan (Lord Commissioner of Her Majesty's Treasury)
Crausby, Mr. David (Bolton, North-East) (Lab)
Dorrell, Mr. Stephen (Charnwood) (Con)
Dorries, Mrs. Nadine (Mid-Bedfordshire) (Con)
Dowd, Jim (Lewisham, West) (Lab)
Dunne, Mr. Philip (Ludlow) (Con)
Featherstone, Lynne (Hornsey and Wood Green) (LD)
Green, Damian (Ashford) (Con)
Griffith, Nia (Llanelli) (Lab)
Hosie, Stewart (Dundee, East) (SNP)
Howarth, Mr. George (Knowsley, North and Sefton, East) (Lab)
Hunter, Mark (Cheadle) (LD)
Jackson, Glenda (Hampstead and Highgate) (Lab)
Keen, Alan (Feltham and Heston) (Lab/Co-op)
Love, Mr. Andrew (Edmonton) (Lab/Co-op)
Milburn, Mr. Alan (Darlington) (Lab)
Reed, Mr. Jamie (Copeland) (Lab)
Ryan, Joan (Parliamentary Under-Secretary of State for the Home Department)
Shepherd, Mr. Richard (Aldridge-Brownhills) (Con)
Geoffrey Farrar, David Weir, Committee Clerks
† attended the Committee

Fourth Delegated Legislation Committee

Thursday 30 November 2006

[Mr. Bill Olner in the Chair]

Statement of Changes in Immigration Rules

8.55 am
Damian Green (Ashford) (Con): I beg to move,
That the Committee has considered the Statement of Changes in Immigration Rules (CM 6918).
I move a prayer against the statement of changes principally because—this is one of those areas in which life becomes slightly surreal—we are discussing the merits of changes that are already in operation. As the Committee will be aware, the statement of changes was laid in the summer recess, but important issues arise from it, which are worthy of serious discussion. We have no particular objection to the statement in principle, but the various bodies that responded to the Government’s original consultation did—as the Minister, in particular, will be aware—and they raised several detailed points, which are worthy of further consideration. I want briefly to comment on some of the issues that were raised and to ask the Minister to respond to some detailed questions on the operation of the changes, of which we are beginning to have some knowledge.
First, I have two comments. One of the significant issues of principle that was raised during the consultation was whether the nationals of other EU states should qualify for protection under the refugee convention. Opposition Members would find it slightly peculiar if they did, because any country that was not a functioning democracy would not be admitted to the EU; nor, frankly, should any such country remain in it. Since one function of a democracy is to protect the human rights of its citizens, it would be peculiar if people could come here from other EU states and claim asylum. It is therefore particularly important to have a debate about that, and we would welcome the Minister’s thoughts on the issue.
I have another general comment on article 17 of the European convention on human rights. Again, there was a lot of controversy about the level at which subsidiary protection can be given and the sort of people to whom it can be given. One of the principal exclusions under article 17 relates to those who have committed a serious crime, who cannot have subsidiary protection. Again, the Minister will be aware of the controversy over that and particularly over the definition of serious crime. Under the immigration Acts, such a crime is held to be one that gives rise to an imprisonable offence with a sentence of two years or more. Representations to the Government suggested that that was too low a hurdle and that serious crime should be defined as something much more serious. In this instance, however, we support the Government’s view that the present definition of serious crime should remain.
I have some detailed questions about the provisions. Paragraph 339Q (i) provides that
“where there are reasonable grounds for considering that the applicant is a danger to the security of the UK”,
the applicant will lose the right to remain. I should be grateful to the Minister if she would explain, first, who will make that decision. Will it be a decision for judges or the Home Secretary? Secondly, that gives rise to an extremely important point of principle that relates to individuals who may well be a danger to the security of the UK, but who would be in physical danger if they were returned to their home country. The Minister will be aware of the related legal cases that the Government are appealing at European level. There is genuine confusion about how the regulations will interact with the wider, genuine, legal problem of how one treats such people.
I should like the Minister to address another detailed question about spouses and civil partners under paragraph 352AA (iii). The relevant people under sub-paragraph (iii) are those for whom
“the relationship existed before the person granted asylum left the country of his former habitual residence in order to seek asylum”.
That is rather vague. How long must the relationship have existed for people to be eligible for asylum? As a practical question, what checks will the Government have on how long a relationship has existed between two people in another country if one of them comes to this country to claim asylum? It is not at all clear whether the provision will have any useful or practical effect.
Another couple of questions arise from the representations that the Government received during the consultation. There is the problem of whether non-state bodies can provide protection for individuals. The Government argue that not only state but non-state bodies need to provide protection. I should be grateful to the Minister if she would explain the circumstances in which that will happen.
On the other side of the same coin, there is the question of whether a person can claim asylum because of the fear of persecution by non-state actors. Again, that issue already arises. I attended the immigration appeal tribunal to watch some cases, and I saw a drug courier who, thankfully, had been arrested. His consignment had been taken from him by the authorities. He claimed that he deserved asylum in this country because he had failed in his attempt to smuggle drugs into the country and would be killed by the drug gangs in his own country. The case seemed to me, as a non-lawyer, one of the most feeble I had ever heard before any type of court. However, that was the argument.
The regulations say that fear of persecution by non-state actors could give rise to an asylum claim. I should be interested to hear what the Minister has to say about the limits of that persecution and, in particular, the type of non-state actors in whom the fear of persecution can legitimately be held, because in practical terms, the provision could be extended and become farcical.
As with everything in this field, we will see what happens in practice. The new regulations may make the system work more smoothly and more fairly, but the House is entitled to be sceptical. I wish the Government well with the changes, but inevitably, we must reserve judgment on their ultimate success. I hope that the Minister will clear up the detailed points that I have raised.
9.4 am
Mark Hunter (Cheadle) (LD): My colleagues and I are minded to support the Government on this issue. Several questions must be asked, but subject to the Minister answering them satisfactorily, the Government will find that we are with them.
It is self-evident that the United Kingdom must fulfil its commitment to the Geneva convention, to deal with genuine asylum claims and to ensure that the people involved receive the right protection. The directive’s deadline for implementation by EU member states is10 October, although it seems from the explanatory notes that it has already been implemented in many other EU countries.
I agree with the hon. Member for Ashford that these issues are important and fairly complex in some respects. The complexity of immigration and asylum issues is apparent from glancing at the document, and recent events in the Home Office have, to put it mildly, further demonstrated that complexity.
To avoid many of the problems, we must pursue solutions to the administrative difficulties to uphold the principle of asylum, to process applications fairly and quickly and, most importantly, to regain the trust of the British people. Specifically, we would like responsibility for asylum to be taken away from the Home Office and given to an independent agency that would guarantee decision making free of political considerations. In that context, there would be a significant role for the United Nations High Commissioner for Refugees, who contributed evidence to the consultation. We touched on that subject in a recent Westminster Hall debate on a report from the Select Committee on Home Affairs, when I again quoted the example of Canada, which has a separate asylum agency and only 1 per cent. of its decisions are overturned on appeal.
Turning briefly to specific questions for the Minister, I understand that there were 14 responses to the consultation on the document and that one of them came from the UNHCR. Could the Minister explain what steps the Government have taken to ensure that the UNHCR’s expertise has been fully taken into account? I should be grateful to the Minister if she would elaborate on the other responses received during the consultation exercise.
I note that for most of the new provisions—for example, that in rule 13—the cut-off date is on or after 9 October. I should be grateful to the Minister if she would expand on the reasons for deciding not to apply the directive to all asylum claims that are in the system.
The section of the document that refers to residence permits states that the United Kingdom residence permit
“will be valid for five years and renewable, unless compelling reasons of national security or public order otherwise require”.
I should be grateful to the Minister if she would define precisely what she understands “public order” to mean in this context. It is a fairly broad term and might subsequently give the Secretary of State broad powers. I hope that she understands why we seek a more precise definition today.
Subject to satisfactory responses to my questions and the rest of the debate, my feeling is that we should support the Government’s proposal.
9.9 am
The Parliamentary Under-Secretary of State for the Home Department (Joan Ryan): I welcome the opportunity to discuss these rule changes. I shall start by putting them in their proper context because the timing is due to the need to transpose the provisions of the European qualification directive into our law. Their substance is already part of UK practice and is reflected in our published policies and case law. The rules do not in any way fundamentally change our asylum system or suggest that we are handing over control of it to Brussels. Instead, they codify what we are already doing and highlight the benefits to the UK of supporting a common European asylum system. I am sure that Opposition Members realise that that is the case.
The Government welcome the qualification directive as an important step towards creating a level playing field on asylum across Europe, which will benefit the UK. The UK retains the right to chose whether to participate in asylum measures under protocol 4 to the Amsterdam treaty, but we believe that it is important to support attempts to agree common standards across the EU, because different standards in different countries create a variety of artificial incentives for asylum shopping. Until recently, France and Germany interpreted the refugee convention differently from the UK, thus creating an incentive for people to claim asylum here instead of there and making it difficult for us to remove asylum seekers to those countries under the Dublin arrangements.
The qualification directive seeks to address those differences by establishing common European standards. The minimum standards that it introduces will build on our ability to return individuals to third countries under the Dublin II arrangements by ensuring that the removal of an individual to another EU member state will not be blocked because that country applies a more restrictive definition of refugee status. On average, we remove 150 people a month under the Dublin arrangements. That demonstrates in concrete terms how a European asylum measure can benefit the UK and deter people from asylum shopping.
The qualification directive is consistent with our international obligations, and reflects the need to stem abuse of the system. The Government support its aims of achieving enough consistency across Europe to tackle the problem of asylum shopping, while providing the flexibility for member states to react to domestic priorities. The Government were actively involved throughout the negotiations to ensure that the directive’s provisions were consistent with our established policy. The directive cleared House of Commons scrutiny on 21 May 2003 and Lords scrutiny on 4 June 2003. We then implemented it, including the changes to the immigration rules, in a way that is consistent with its requirements and in line with our legislation and case law.
Asylum applications are at their lowest level since 1993. That was partly achieved through enhanced co-operation with our European partners. We intend to continue building on our progress in reducing the number of unfounded asylum claims. The changes to the rules will help us to do that by ensuring that asylum claimants cannot exploit differences in the qualification criteria in other EU member states and use those differences to thwart their removal from the UK.
We do not agree that the rules should be disapproved, so I am pleased to hear that the Opposition merely seek clarification. The UK is a net beneficiary of the common European asylum system. Striking down the rules would undermine that system and hamper our attempts with our European partners to reduce asylum shopping. It would also make future co-operation more difficult.
I shall address some of the points that the hon. Member for Ashford raised. The fact that there are no changes to our system and that what we already do has simply been codified is an answer to most of his points. Although EU nationals can claim asylum in other member states, under the protocol on asylum annexed to the Amsterdam treaty—the so-called Spanish protocol—there is a presumption to treat such claims as manifestly unfounded.
Damian Green: Will the Minister confirm therefore that there have been no successful claims between EU states since the Amsterdam treaty came into force? I believe that to be the case, and I wish to test the usefulness of that protocol.
Joan Ryan: I am not sure that I can answer that question now. I certainly do not want to give the hon. Gentleman an inaccurate answer, so I hope that he will agree to let me write to him on that.
The hon. Gentleman asked about humanitarian and subsidiary protection. Under paragraph 339C of the immigration rules, humanitarian protection will be granted to any individual who does not qualify for asylum but faces a real risk of
“the death penalty or execution ... unlawful killing ... torture or inhumane or degrading treatment or punishment in the country of return”
and in cases where there is
“serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”
There are a variety of reasons, but there is no change in our practice in this country in relation to that matter. As I said, we have simply codified into law our existing practice. The hon. Gentleman also asked about those who pose a threat to this country or have committed a serious crime, and he mentioned the threshold of two years. I do not want to pre-empt anything—he will know that we are considering that threshold at present—so I will say no more on that point.
The statement was laid in recess, it is true, but there has been a full consultation process. As I said, both Scrutiny Committees have considered the changes in some detail. The hon. Member for Cheadle talked about the UNHCR. We work very closely with the UNHCR and I meet regularly with Mrs. Bemma Donkoh, who is its representative here. We consider that its input on these matters is of importance and we take note of its views.
We were pleased at the quality of responses to the consultation. The hon. Gentleman will know that some 14 organisations responded to us, but he will also know that they were representative organisations that had large numbers of other individuals and bodies under their umbrellas. In addition to the public consultation launched on 26 June, we held a seminar on 31 July to give stakeholders the opportunity to ask questions on the implementation, and we reflected on the input at that seminar.
The hon. Gentleman asked about the cut-off date of 9 October. All cases within the asylum system will be considered against the requirements of the rules of the directive. That is a practical measure to avoid a two-tier system and to bring certainty to applicants; but of course, as stated, there is little differential impact from the policies that applied previously, as the position remains fundamentally the same. We are simply codifying into our law the directive, which does not change any of our policies and practices. I hope that I have satisfied the Committee with those remarks. If there are any points that I have not covered, I am sure that the hon. Gentlemen will let me know. I shall endeavour to write to them if they need any further clarification.
Mark Hunter: The Minister is obviously coming to the end of her remarks. I raised a third consideration, which was about the definition of public order in this context. I think that that is a fairly important point, because it has quite a broad meaning in other contexts. Can the Minister define more clearly what exactly is meant by public order in this precise context?
Joan Ryan: That is an important point and the hon. Gentleman is right that it has a broader meaning in other contexts, so it might be better if I write to him with the precise definition that we operate on, because I do not have that information in front of me. I askthe members of the Committee to support the Government’s position on the statement.
Question put and agreed to.
That the Committee has considered the Statement of Changes in Immigration Rules (CM 6918).
Committee rose at twenty minutes past Nine o’clock.

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