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Our Amendment 52 is also in this group. It adds to Clause 46, dealing with the meaning of references to being in breach of the immigration laws. Proposed new subsections make it clear that, during a period of awaiting successful determination of a claim for asylum, or human rights protection, the applicant is not in breach of the immigration laws. One would have thought that this was obvious, considering that it had been determined that such a person had a legitimate reason for entering the UK. Section 11(2) of the NIA Act 2002 says that,
here. That applies to the refugee while he awaits the outcome of his claim. It is therefore necessary to have these subsections inserted in the definition. They will also make it possible for the waiting time to count towards a later citizenship application.
We faintly welcome the Governments amendments, which allow for discretion to waive the requirement for a person to have qualifying immigration status throughout the qualifying period, where a persons temporary leave had expired shortly before his or her application for probationary citizenship, or where the persons probationary citizenship had expired before his or her application for citizenship itself. We also agree that the requirement should be waived for successful asylum seekers, but not onlyas the Minister said in Committeewhere there is an undue delay in determining a claim, and this delay is not attributable to the claimant.
There are still some 200,000 so-called legacy cases of people who have been in the system for several years. On the Governments own assertion, those cases are not expected to be cleared until July 2011. The time taken to deal with many current cases is also profoundly unsatisfactory. At the end of 2008, there were 10,800 applications awaiting an initial decision, compared to 6,800 a year earlier, in spite of fewer cases arising in 2008. When decisions are finally reached, these are not reliable, as can be seen from the fact that one in four of the appeals determined in the last quarter of 2008 was successful. In those cases where the applicants case was judicially found to be valid, he ought not to be penalised and, at the very least, the time between refusal of the application and the determination of the appeal should count towards the qualifying period. The amendment says that the whole time spent awaiting determination of the claim should be treated as falling within that qualifying period.
Since the general aim of the Governments naturalisation policy is to promote greater integration, as the noble Lord, Lord Brett, said in Committee, the logical and right solution would be to treat the whole of the time from first application to successful determination as part of the qualifying period. This, again, is referred to in the JCHR report as being part of the UNHCRs convention, to which we are signatories. In the unlikely event of reaching the target of six
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Baroness Stern: My Lords, on the one hand one must be grateful to the Government for tabling some amendments in response to our discussions on these points. However, as the noble Earl, Lord Sandwich, has said, the amendments do not seem to go far enough. I remind the Minister that we are talking here about people to whom the terms failed or bogus are not applicable. We are talking about people whose cases have been accepted as legitimate. They have been accepted as refugees or in need of humanitarian protection and they are entitled, eventually, to become citizens. The UNHCR is very clear about what we need to do to comply with our international obligations on this matter. I very much hope that the Government will listen to what the UNHCR has been saying to those of us involved since this Bill came before usand what it continues to sayabout what we need to do to comply, which is to treat refugees as the international community expects and as, in the past, this country has always tried to do.
Lord Brett: My Lords, I will try to respond to all items in this group, including the government amendments. I will start with the JCHR recommendations, which we have had little time to study. I can advise noble Lords that our officials have corresponded recently with the UNHCR and sought to address the points that it raises. Importantly, the Government are clear that we do not believe that our proposed changes are incompatible with Article 34. Although there is nothing in current UK nationality law or our proposal that specifically facilitates the acquisition of nationality by refugees, the residence requirements are not unduly onerous for any applicant. It is possible for refugees to be naturalised. Any decisions not to naturalise are taken in good faith.
Only six years lawful residence will be required, or just three years if the applicant is married to a British citizen, ensuring that the active citizen condition is met in both cases. It is therefore possible for all refugees to be naturalised if they meet certain statutory criteria and these criteria are justifiable. Furthermore, we do not believe that, by not counting time spent in temporary admission for purposes of naturalisation, the UK is penalising refugees for illegal entry or breaching Article 31 of the 1951 convention. Nothing in the earned citizenship clauses of the Bill imposes criminal sanctions on refugees who enter the UK illegally.
It might be helpful if I explain that the existing requirement not to be in breach of immigration laws, as inserted by Clause 46, is concerned with a person holding the correct sort of status in the UK rather than with commission of offences. In future, as now, any commission of criminal offences will be taken into account in assessing whether an applicant has the separate requirement of good character on the date of the application for naturalisation in Schedule 1 to the BNA 1981. As noble Lords know, we have tabled amendments to ensure that the earned citizenship
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The noble Lord, Lord Hylton, commented on his discussions with my noble friend Lord West. We gave an assurance that we would table amendments and we have done so. However, his Amendment 41 goes further than the Governments intent and would allow refugees to count any time spent in the UK since entry, including time spent pending an asylum decision, towards the qualifying period for naturalisation. I would like to develop the point. No doubt noble Lords will have looked at the government amendments tabled in the name of my noble friend Lord West. They ensure that the discretion to waive the requirement for a qualifying immigration status for the whole of the qualifying period is included in the Bill, thus providing the necessary flexibility. I have described where it might be applied, which is where there is a question of undue delay.
As I explained in Committee, we do not feel that allowing those who are subsequently recognised as refugees to automatically count the time spent in the UK pending a decision on their asylum claim towards the qualifying period for naturalisation is the right approach. For example, if we provided an exemption on the face of the Bill specifically for refugees, this would have counterproductive results. First, if a person applied for asylum on arrival in the UK and subsequently absconded and then some months or even years later came to light and was recognised as a refugee, we would have to count the time during which he had absconded towards the qualifying period for naturalisation. It seems wrong to reward an abscondee in this way when others who comply with the process must complete the temporary residence and probationary citizenship stages. It would also go against our aim to increase compliance with the system. Similarly, if an individual failed to comply with the system, by not attending interviews, for example, we would not want that time to count automatically towards the qualifying period.
Another important point is that in asylum cases a decision is based on the prevailing circumstances at the time when the case is actually considered, in addition to taking into account the facts of the claim when it was originally made. For example, the fact that a person may be recognised as a refugee does not always mean that he was so from the start. Events in the country of origin, fresh evidence or fresh case law could mean that the person qualifies as a refugee only after the initial application was made. The amendment would mean that a person who may have had no basis to his claim at the time when it was made could nevertheless count that time pending his decision towards his qualifying period. UKBA is seeking to determine asylum claims as quickly as possible and has made considerable progress; the period of six months was
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I reassert the Governments full commitment to meeting their international obligations in respect of those fleeing persecution. However, we do not propose to go as far as permitting any time spent in detention, on temporary admission or on temporary release, or any time spent pending an application for leave to remain in connection with an asylum or human rights claim, to count towards the qualifying period for naturalisation. We will use discretion where this is appropriate.
Amendment 37 would amend the Bill so that the qualifying period for persons granted refugee status or humanitarian protection is fixed at five years. I must also resist this amendment. Under the present system
Lord Lester of Herne Hill: My Lords, I thank the Minister for allowing me to intervene. Will he explain what incentives are to be built in, under his approach, to encourage the machinery to deal with refugee claims more expeditiously? How is the Home Office going to be made to operate more quickly? How will having a broad discretion make the system work better, rather than lead to yet more arguments and perhaps more litigation and thus slow the whole thing down? In terms only of the efficiency of the machine, I do not understand from what the Minister has said how this is going to encourage officials to get on with it and how it will make the whole thing work better. The more discretion one gives, the more likely it is that there will be more arguments and in the end higher costs, to the detriment of the public interest.
Lord Brett: My Lords, the short and simple answer to the question put by the noble Lord is that the UKBA has set itself targets to resolve all fresh asylum claims within six months. Clearly, if a case such as the one mentioned by the noble Lord, Lord Avebury, carries on for 18 months through no fault of the applicant, that is a clear case where the exercise of discretion can be used for the purpose of resolving undue delay.
Lord Avebury: My Lords, I am sorry to interrupt the noble Lord, but will he say something about how the discretion would be exercised, instead of saying how it would not? He has given two examples. One was the case where the person absconded before his claim was determined. He then resurfaced and was successful. The other was where the circumstances in the country of origin had changed so that the person became a refugee at some point during the currency of his application being determined. However, those are not normal cases. What we are talking about is the normal run of asylum cases where a person complies with all the rules that are imposed on him, but in the end he has to wait around for a year or 18 months. Is it not then reasonable and in compliance with the passage from the convention quoted by the JCHR for that time to be counted towards his legitimate stay in the country for the purpose of determining his claim?
Lord Brett: My Lords, it depends on how that period of time is defined and whether it is defined as the excess period beyond which it would be reasonable to expect the UKBA to have dealt with an application. We are looking at a target of six months, so, if it took 18 months, it is clear that something must have gone wrong. If it is unlikely that it was the fault of the applicant, this would be a case where it would be right to exercise discretion.
The question that arises is what we mean by undue delay. That is where guidance will be developed to deal with the circumstances where we should exercise the discretion. In broad terms, discretion will be exercised where undue delay has occurred, which would be a delay that extended significantly beyond the timescale applying to the majority of applicants. If we have a target of six months and we meet it for the vast majority, but for some reason some individuals encounter delays beyond that period, the balance of time beyond the normal period of six months would be the argument for using discretion to allow it to count.
Perhaps I may return to my response to the amendments. The noble Lord has asked me several questions and I should like a little time to think about them and return to them before the end of my remarks. As I said a moment ago, Amendment 37 would make the qualifying period a fixed one of five years. We shall also seek to resist this. Under the present grounds for refugee status or humanitarian protection, someone can qualify for citizenship after a minimum of six years. Our proposed provisions maintain this position and we do not consider that there are strong arguments for reducing the period for those on the protection route.
As has been said, we want refugees to follow the path to citizenship and fulfil the criteria of that path in the same way as other migrants do. We have designed the path so that it encourages migrants to integrate with their local communities. I know that noble Lords share my objective of improving the extent to which migrants integrate into our society. That must be equally true of refugee migrants as it is for those who arrive by other routes. Removing the requirement that refugees must meet the same criteria as other migrants to qualify for citizenship would do nothing to assist their integration, so I must respectfully resist this amendment.
Finally, Amendment 52 would ensure that persons with a pending application for leave to remain, pursuant to an asylum or human rights claim, are not treated as being in the UK in breach of the immigration laws where they go on to be granted leave to remain. The requirement not to be in breach is relevant only to those whose qualifying period has started and, as I said, in the case of those seeking protection the qualifying period will normally start only when they are granted leave on that basis. In those cases where we choose to exercise the new discretionfor a delay, or whateverto count periods before the date of leave being granted towards the qualifying period, we will also apply discretion to waive the requirement not to be in breach, where that is a necessity.
I hope that the noble Lords, Lord Hylton and Lord Avebury, and the noble Baroness, Lady Miller, will accept that the amendments that we are putting forward
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Lord Hylton: My Lords, the Minister has, no doubt, done a very good job in resisting my amendment, but I invite him to explain the precise effect of the five amendments that the Government have tabled.
Lord Brett: My Lords, as I explained in Committee, the Government sought to meet the concerns raised by the Liberal amendments put forward at that stage and, by increasing discretion, for example, to move towards meeting the point on undue delay that has been repeated today. Therefore, I believe that while there is no resistance in this House to the government amendments, there is some concern about the broader system that we are putting in place. There also seems to be some concern about discretion. However, as I said, guidance will be developed on that. In the mean time, I hope that the normal cases that the noble Lord, Lord Avebury, referred to would be those that we can deal with quite easilyif we are not talking about the exceptionsonce we have a clear understanding of what delay we are talking about. We believe that such a delay would be beyond that normally associated with a swift determination of refugee status, which would be six months.
Lord Lester of Herne Hill: My Lords, in answering that question from the noble Lord, Lord Hylton, is the Minister saying that the discretion in the Bill is unfettered but that guidance will be given that, while not legally binding, will somehow be taken into account? Is that the position? If the discretion is unfettered, that seems inappropriate. If the Minister is saying that there will be guidance that will, in some way, limit and define the discretion, that position is much more acceptable. I am not clear what he is saying on that.
Lord Brett: My Lords, I was saying that guidance will be developed; I thought that I was clear on that point, if nothing else. On the argument that exceptional cases do not make good examples and that the more normal application problem is that which the noble Lord outlinednamely, that of undue delaythe answer is: yes, there will be discretion, and guidance will be developed to meet those problems and to assist in a speedy resolution.
I return to the point made by the noble Lord, Lord Hylton. Government Amendment 30 will ensure that the earned citizenship clause in the Bill allows for discretion to waive the requirement to have the qualifying immigration status for the whole of the qualifying period. Having that discretion will give the flexibility that we believe the system that we are creating needs. In the case of refugees, we would expect to exercise that discretion where we have the undue delay factor, or others, so the guidance will be developed to give officials an understanding of what undue delay means and how to apply the discretion. I do not think that I can add anything else.
Lord Hylton: My Lords, with regard to Amendment 24, I am extremely grateful to at least five of your Lordships, in all parts of the House, who spoke in its support. If
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Lord Davies of Oldham: My Lords, this Bill rewrites certain basic provisions such as the charge to corporation tax and provisions used by companies in computing their income. The main aim is to make the legislation clearer, better structured and easier to use than the source legislation, which is often dense and difficult to follow. The Bill has been produced by Her Majestys Revenue and Customs Tax Law Rewrite Project. It is the first of two Bills that will rewrite corporation tax. The second will be introduced later this year, along with another which will rewrite international and other provisions, some of which apply for the purposes of both income tax and corporation tax. The work follows the success of the projects previous Acts which rewrote the capital allowances and income tax legislation.
I should explain that the Bill has been certified as a money Bill. It was introduced into Parliament in another place at the beginning of last December. Under the special procedures applying to tax law rewrite Bills, the substantive debate on Second Reading was held in Committee. The Bill then passed to a Joint Committee of the two Houses, where it was considered on 27 January. The Joint Committee included among its members the noble Lord, Lord Goodhart, and my noble friend Lady Goudie. I am grateful to them for their efforts in scrutinising the Bill, and to Sir Peter Viggers MP who chaired the Committee. The Bill then passed back to the House of Commons for its Third Reading and is now before us for its remaining stages, which the rules say can be taken in one day.
It is beyond the remit of the project to make any significant changes in tax policy, so it takes great care to preserve the effects of the legislation. It can, however, make very minor agreed changes; for example, to remove ambiguity, repeal obsolete material or correct
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The extensive consultation process that I mentioned involved publication for public comment of papers containing almost all the clauses in the Bill, and the Bill was also published in draft form for another round of consultation. In addition, groups of private sector specialists met the project to consider the detail of some of the more complex provisions so that the views of those who are the main users of the legislation were taken fully into account. Throughout the process, proposed minor changes in the law were specifically drawn to the attention of consultees; no minor changes in the law were included in this Bill without the considered approval of both the projects committees.
The Joint Committee of both Houses heard oral evidence from members of the Tax Law Rewrite Project team. It considered and accepted all the government amendments to the Bill, all of which it agreed were of a minor, technical nature. The Joint Committee concluded that the Bill is a welcome clarification of the existing law and, as a result, it will be easier to use and more accessible to Parliament, the judiciary, informed professionals, business people and other users of the legislation. It was satisfied that the changes of the law in the Bill are of very minor significance.
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