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Lord Filkin: The noble Lord, Lord Thomas, asked why we have given the right of appeal against the denial of citizenship when no previous government had ever given a formal right of appeal to the adjudicator on the denial of an application for citizenship. I am sure that the noble Lord can sense the answer himself on that specific point.
The denial of citizenship, as we discussed earlier, is so significant and has such immediate consequences for the person concerned that it seems right and proper to allow an appeal, whereas the consequences of refusing to grant citizenship, while having significance, will not be so immediate, so powerful, or without alternative forms of redress.
Our belief that the amendment is not necessary is stiffened by the fact that we have also made provision in Part 1 of the Bill—in Clause 7—to remove the Secretary of State's statutory exemption from the obligation to give reasons for nationality decisions that are discretionary. From now on, apart from it being the practice to give reasons, there will be a statutory duty to do so. Clause 7 removes the limitation on the powers of the courts to review discretionary nationality decisions by enabling the decisions to be subject to normal judicial review. That will include consideration of the reasonableness of the decision.
As I said, reasons are already given, but there are further remedies available. People can make a complaint to the Parliamentary Commissioner for Administration and other avenues for redress are open to them. They may be dissatisfied with a citizenship decision, as we discussed on day one. If the complaint came under the new provisions of the Bill relating to
their qualifications in English, they would make their complaint in the first instance to the college of further education that marked them down.If it is an exercise of judgment by the Secretary of State, it is perfectly reasonable to make representations to the Secretary of State either on their own account or through a Member of Parliament. Some 80,000 decisions are made each year, with very few refusals. That does not mean to say that there is no issue, but most of the refusals are about people not meeting the residence requirements.
There is evidence of cases—the noble Lord, Lord Avebury, has already raised cases with my noble friend Lord Rooker. The noble Lord, as usual, was eloquent in his advocacy and my noble friend Lord Rooker and the Home Secretary reconsidered their decisions, which produced a favourable outcome. That is not always guaranteed. There are very few cases. There has never been an appeal to an adjudicator, but there are common sense routes for redress that are workable.
For those reasons, the amendment is unnecessary. We believe that we have strengthened the rights of people who have been rejected in their citizenship applications by the measures in Clause 7.
Lord Thomas of Gresford: The Minister drew a distinction between the withdrawal and granting of citizenship, based on the assumption that the granting of citizenship is not very important. There may be circumstances when it is crucial. A person may be stateless; he may be unable to avail himself of his current citizenship; or he may wish to travel under British protection. Those are all circumstances in which the grant of citizenship is very important to that individual.
Reasonableness is not the issue; the question is what are the merits of the decision taken by the Secretary of State. It is all very well to say that there are other ways of approaching the Secretary of State, but one is going to the judge and jury, as it were, and asking him to change his decision.
We are seeking an independent arbitrator, namely, the adjudicator, who will examine independently the merits of the arguments on both sides—those of the state and the individual—will reach his own conclusions about the facts and will take a decision. We shall consider the matter and may return to it, but meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 194K to 194M not moved.]
Clause 71 [Appeal: claim for asylum]:
Lord Thomas of Gresford moved Amendment No. 194N:
- Page 40, line 21, leave out paragraph (b).
The noble Lord said: The crucial words in Clause 71(1)(b) are "exceeding one year". The Court of Appeal in the case of Saad and others recognised that it is the United Kingdom's international obligation
under the 1951 refugee convention to include the recognition as a refugee of any person who is in fact and in law a refugee.The effect of paragraph (b) is that any applicant for asylum whose claim has been rejected, but who is granted temporary leave to enter or to remain for a year or less, will not be able to access the appeal process to pursue his claim for refugee status. That status grants specific rights, including the right to be reunited with family members and the right of settlement. At present, all those who are granted exceptional leave to remain, even for one year, can appeal to an adjudicator to upgrade their refugee status. That is the existing position under Section 69(3) of the Immigration and Asylum Act 1999.
However, the limitation in paragraph (b) leaves it open to the Secretary of State to grant periods of one year or less consecutively and thereby to deny the right of final determination. That frequently happens in respect of children up to the age of 18.
Amendments Nos. 194P and 195ZA are grouped with this amendment. They represent another approach. The word "limited" prevents extensions but the 28 days suggested postpones the right of the applicant to appeal for a minimum period. He can exercise his right to appeal not after one year but after 28 days. I beg to move.
The Deputy Chairman of Committees (Lord Lyell): I must advise the Committee that if Amendment No. 194M is agreed to, I cannot call Amendment No. 194P.
Lord Avebury: In the past couple of years, the practice has been to grant an increasing number of ELRs. The figures indicate that the total number of people granted ELR rose from 11,500 in 2000 to 19,500 in 2001. Six thousand people were granted ELR in the first quarter of this year, so they are now running at the rate of 24,000 per year. However, we do not know how many of those were for periods of one year or less. The point underlying my noble friend's amendment is that, since the Secretary of State has total discretion over not only the granting of ELR but the period for which it is granted, he could arbitrarily put a stop to all appeals for refugee status simply by giving everyone a year or less.
It is not clear whether under this proposal, as my noble friend has suggested, he could continue to grant ELR one year at a time and thus stop the person from ever making an application for refugee status or whether, after the first 12 months have passed, the person could apply for refugee status on the first day of the new year.
All practitioners and many noble Lords know of cases where people have been given ELR and have the applied successfully for upgrading to refugee status. Why is this right to be removed, which has been enjoyed by the holders of ELR ever since it was first introduced?
11.15 p.m.
Lord Hylton: The clause appears to remove certain existing rights. On those grounds I support the first amendment and the variations grouped with it.
Lord Kingsland: Our Amendment No. 195 is included in this grouping. It is a probing amendment, but nonetheless it is, in my submission, an important one.
As we have heard, Clause 71 of the Bill is concerned with the procedure by which an asylum claimant whose claim for refugee status is refused, but who is nonetheless granted a limited period of leave to enter or remain in the United Kingdom, can appeal to an adjudicator against the rejection of his claim for asylum. Under Clause 71 as drafted, the right of appeal will be available only where leave is granted for a period exceeding one year. This right to appeal is important. Why is that? It is important because those granted exceptional leave to remain do not have the same rights, such as the right to family union, as those granted full refugee status.
At present, under Section 69(3) of the Immigration and Asylum Act 1999, such an appeal may be brought by those whose exceptional leave is for a period greater than 28 days. The change from 28 days to one year is significant and the policy reasons for it are by no means clear from the debate held in another place. In the Standing Committee, the Minister, the honourable Ms Rosie Winterton, said that:
- "The appeal is not available for those given a year's leave or less, because that is a deliberately limited period and a further decision will have to be taken at the end of it. If that decision is to refuse further leave or to grant more than a year's further leave, it will attract a right to appeal".—[Official Report, Commons Standing Committee E, 21/5/02; col. 385.]
The Liberal Democrat spokesman, the honourable Mr Hughes, asked whether this meant that where the asylum claim was refused, but leave of a year or less was granted,
- "the process could be spun out by recurrent extensions so that no right of appeal is allowed for a long time".—[col. 386.]
- "I hope that I can reassure the hon. Gentleman by saying that we do not intend to use the system in that way".—[col. 386.]
That may well be the Government's present intention, but as the Committee will be only too well aware, intentions change. Only last week the Committee debated the Government's change of intention with regard to Part III of the 1999 Act on bail, which they regarded as significant and important three years ago, but which they now propose to repeal.
The Government must come forward with a clear justification for their decision to remove the right of those given ELR for a year or less to make an appeal in respect of their asylum claim so that they can have their refugee status determined. Why was a threshold of ELR for more than one year chosen, rather than six months as provided for in our amendment, or the status quo of 28 days?
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