| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Hollis of Heigham: Amendments Nos. 84 and 85 are linked in that they propose that earnings taken into account for pension credit purposes are net of income arising from employee share schemes. As I understand it, the first amendment proposes that earnings that are deducted from salary to invest in an employer's share incentive plan should not show up as earnings in pension credit and therefore should be disregarded in the income assessment. Similarly, the value of free and matching shares received under the plan should be disregarded. Again as I understand it, the second amendment proposes that any gain from employees' share schemes that are treated as earnings should be disregarded as income in the pension credit income assessment.
As the Committee will know, the Government fully support the widening of employee share ownership. Such schemes can only help to increase productivity. Our commitment is clearly demonstrated by the introduction of the two new tax-advantaged schemes in the Finance Bill 2000, which was mentioned by the noble Baroness. Both are very generous.
The share incentive plan—previously known, as the noble Baroness described it, as ESOP—is aimed at promoting shareholding among all employees in order to increase productivity and improve long-term performance. The share incentive scheme allows a company to bring its employees into share ownership in three ways. It can give its employees up to £3,000 of free shares annually, free of income tax and NICs; employees can contribute up to £1,500 per year out of pre-tax and NICs pay to buy "partnership shares"; and the company can award up to two matching shares for each partnership share bought.
At the same time as we introduced the share incentive plan, we introduced the enterprise management incentives aimed at helping smaller, high-risk companies to grow and become successful. This was enhanced on 1st January this year so that more companies could provide tax-advantaged share options to their employees.
The noble Baroness asks us to follow the example of the Inland Revenue and effectively to make contributions to a share incentive plan non-taxable or, in our terms, to disregard them. But she then asks us in the second amendment to steal a march on the Inland Revenue. I am sure such a thought never occurred to the noble Baroness, but she asks us to disregard any gains from employee share schemes should they be paid as earnings. As things stand, such gains, if considered as earnings, are liable to tax in the same way as any other earnings.
My department uses for its definition of "earnings" the same definition as that used to determine liability for NICs. I am pleased to tell the Committee that, as neither contributions by employees to share incentive plans, nor the value of free and matching shares
received under those plans, are subject to income tax or are liable for NICs, it follows that this income will be disregarded in the definition of earnings for pension credit purposes.Turning to the next point, the noble Baroness asks us to disregard in our definition of "earnings" any benefits received by employees from employee share schemes that have the general character of earnings from employment. These benefits are subject to tax and NICs in the normal way. I am sure that the noble Baroness will understand that creating such a disregard in a benefit designed to suit the needs of pensioners with low and modest incomes when the Inland Revenue has no such exception for tax and NICs purposes—although many of the noble Baroness's arguments have been based on analogies, she is now asking to diverge from them—would, at best, be inappropriate.
Given that we have achieved the purpose intended by Amendment No. 84 and given our understandable reluctance to break new ground on Amendment No. 85, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Noakes: I thank the Minister for that reply. I shall read carefully what she said in respect of Amendment No. 84. These are complex matters and I shall reflect further on whether I understand exactly what she said.
Amendment No. 85 goes beyond the narrow examples given in the Finance Act 2000. I accept that, as drafted, it may seem particularly broad, but there will be cases of gains being made by retired employees under approved share option schemes. These will not be regarded as within the charge to income tax because of the exemptions—their share options fall out of the charge to income tax although they fall into the charge of capital gains tax—but I am not clear whether the noble Baroness intends those kinds of gains to be treated as income. I am unclear as to whether or not we have tied up every point.
I accept the Minister's mild rebuke about stealing a march on the Inland Revenue, but I am not sure that the core of Amendment No. 85 has been dealt with correctly.
Baroness Hollis of Heigham: This is very complex. I could speculate, but it might be wiser—it certainly would be safer—for me to write to the noble Baroness. If she is dissatisfied, she can press me on Report.
Baroness Noakes: I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage begins again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
Immigration and Asylum Appeals (Procedure) (Amendment) Rules 2001
7.30 p.m.
Lord Avebury rose to move, That an humble Address be presented to Her Majesty praying that the rules, laid before the House on 17th December 2001, be annulled (S.I. 2001/4014).
The noble Lord said: My Lords, these rules have aroused an enormous amount of concern throughout the whole refugee community from the United Nations High Commissioner for Refugees down to all those who are trying to help asylum seekers in the United Kingdom.
The rules apply to an asylum seeker whose claim is certified by the Secretary of State under Section 9(1) of the Immigration and Asylum Act 1999. He is caught under several different headings: if he fails to produce a valid passport at the port of entry and gives no reasonable explanation for that failure, whether or not an explanation exists; if he produces an invalid passport and does not inform the officer that it is invalid; if he enters the UK for some other purpose and claims asylum only after the original leave to remain has expired; if an immigration officer decides that he does not have a well-founded fear of persecution or a right under the European Convention on Human Rights; if his case is manifestly fraudulent or any of the evidence that he presents is false; and so on.
In any of those circumstances, the Secretary of State may certify the case under Schedule 4 to the 1999 Act. Under the rules, the adjudicator's determination will be served only on the Secretary of State who will then notify the appellant or his representative. If an asylum seeker who is not certified applies to the tribunal for leave to appeal, and the tribunal refuses such leave, the decision will be sent to the Secretary of State who will forward it to the applicant and his representative at a time of his own choosing.
No time limit is laid down within which the Secretary of State has to forward the decision in either case, presumably so that he has plenty of time to formulate removal directions and serve them on the appellant at the same time as he receives the adjudicator's or tribunal's decision, thus allowing him to be taken into custody immediately. Will the Minister confirm that that is how the procedure will operate? It is not clear from the rules or the press release, which was issued by the Minister's department.
A solicitor sent me an e-mail to ask:
- "Where is the impartiality and fairness of a judicial system which gives its decisions to one party only, for its own administrative convenience?".
The noble Baroness will be aware that the Law Society is critical of both the absence of a time limit, which it says is
- "extremely prejudicial to the appellant"
The Immigration Law Practitioners' Association says that it is aware of no other area of litigation where one party has no right to be told direct by the court or tribunal whether or not he has been successful. The Refugee Legal Centre makes the same point.
Why did the Government make that change to the rules? It was not proposed in the consultation paper on appeals which was issued last summer; it was sneaked in over the Christmas Recess, which suggests that the Government want to minimise discussion. The Home Secretary's press release states that it is to prevent asylum seekers from
- "having a head start in knowing what the decision is, and if it is unfavourable, being able to disappear".
- "getting a grip of the removals process, and will ensure that those who, having exhausted the appeals system, have no right to remain, actually do leave the country".
In other words, snatch squads will descend on appellants, bundling them and their families off to Harmondsworth or Tinsley House before they are even aware of the adjudicator's decision. They will have no chance to obtain legal advice on whether it might be possible to seek judicial review of the decision. I asked the Government how many asylum seekers who had exhausted their rights of appeal last year obtained leave to seek judicial review. That question has not yet been answered, but there are many such cases. No statistics are kept, and I hope that the Minister will say on what information the Government decided that it was necessary to introduce the rules separately from other reforms being made to the appeals system.
Will everybody who is certified and loses at the adjudicator or tribunal stage be detained? How long will such people be detained? If the time is short, they may not have time to consult their lawyers. If the time is long, that will be against the Government's declared policy of keeping people in custody for the minimum length of time.
There may be people who, although they have no legal right to remain, deserve consideration on humanitarian grounds. An example is the ethnic Albanian family on whose behalf it was argued in the High Court that because the wife had been raped in public, it was unreasonable to expect the family to return to Kosovo. The adjudicator said that the family's ordeal was the worst case he had heard in four years of experience. Mr Justice Turner, while refusing leave to appeal, suggested that an application should be made to the Secretary of State to exercise his discretion to allow the family to remain here indefinitely.
Had these rules applied, the case would probably not have reached the High Court. The chief executive of the Immigration Advisory Service, Mr Keith Best, has written to the Home Secretary saying that if removal directions are indeed served at the same time as the decision, rights that the appellant might still have will be nullified. Mr Best contradicts the
Government's assertion that in every case where the rules apply, the appellant will have exhausted all further rights of appeal.Mr Best also thinks that there could be a right of appeal in certain circumstances, such as when the spouse or child of the appellant, having a separate locus under Section 6 of the Human Rights Act 1998, invokes the right to family life provision of Article 8 of the convention. Let us suppose, for instance, that the spouse has a serious accident after the hearing and needs indefinite care and treatment. It might then be unreasonable to expect the spouse to accompany the applicant back to the country of origin—a third world country, where no medical facilities or support exists for the severely disabled. That spouse might then be able to invoke Article 8. It is therefore not true that all the appellant's rights have been exhausted.
The UNHCR deputy representative says that judicial review may be
- "the only channel by which the applicant may realise his entitlement to international protection",
He could have been referring to the recent experience that we had with Zimbabweans when the Minister was asked repeatedly to review cases that had already been decided, in the light of the crescendo of human rights' abuses in Zimbabwe as the election approaches. The Minister adamantly refused to consider our proposal and the individuals concerned would have had to rely on judicial review where that was possible, until suddenly one day the Secretary of State decided after all that it was unsafe to send anybody back to Zimbabwe.
In about half of the cases dealt with by the RLC since the 1999 Act came into force, the certificates have been overturned. Other agencies may not have had the same rate of success, and it must be acknowledged that the quality of representation is variable. When appellants are dispersed they may not be represented at all because of the difficulties of communication. The existing solicitor may give up the case when the client moves because of the distances involved, and it may be impossible to find a replacement in time. Thus it will be a matter of luck whether an asylum seeker is dealt with by the procedure of the order. For example, the IND habitually certifies eastern European Roma cases as manifestly unfounded, despite the huge amount of material on the violation of Roma rights. When Roma clients are competently represented, the certificates are often successfully challenged.
The people who abscond at the end of the asylum process present something of a problem. We would have agreed to discuss ways of reducing the number if the Government had decided to consult us, the voluntary agencies and the practitioners, as they normally do. First, we should like to know how long after the final decision the removal notice is generally served, and what proportion of notices cannot be served because, in the meanwhile, the person concerned has moved without giving any forwarding
address. Secondly, can the Minister tell the House how many people leave voluntarily when asked to do so? From this Friday, all new asylum applicants are to be issued with smart cards, as announced by the Home Secretary on 29th October last year. Will people who fail to report have their benefits suspended? Further, what will happen to the benefits of a person whose case is certified after an adverse decision is notified to the Secretary of State by the adjudicator?These rules were produced quite separately from all other changes in the appeals system. They were not foreshadowed in the consultation paper issued last summer; they were sneaked in over the Christmas Recess. They deprive some asylum seekers and their representatives of the right to seek judicial review in circumstances where it has proved to be a necessary safeguard. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the rules, laid before the House on 17th December 2001, be annulled (S.I. 2001/4014).—(Lord Avebury.)
Next Section
Back to Table of Contents
Lords Hansard Home Page