THE RIGHT TO BE HEARD

HC Deb 21 January 1992 vol 202 cc239-47

'No statutory instrument giving effect to or supplementing any of the provisions of this Act shall contain any provision depriving a person of a right to be heard before a special adjudicator or the Immigration Appeal Tribunal.'.—[Mr. Fraser.]

Brought up, and read the First time.

Mr. Fraser

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

Madam Deputy Speaker

With this it will be convenient to take the following amendments:

No. 4, in clause 5, page 5, line 39, at end add— '(8) Rule 14 of the Immigration Appeals (Procedure) Rules 1984 shall have effect in respect of appeals from the special adjudicator to the Immigration Appeal Tribunal.'. No. 5, in clause 6, page 5, line 48, after 'law', insert 'or fact'.

No. 6, in page, 6, line 12, at end add— '(5) For the purposes of this section the words "question of law" include the question as to whether an asylum seeker has had the opportunity to be heard and to be represented before a special adjudicator or the Immigration Appeal Tribunal.'. No. 9, in schedule 2, page 10, line 31, at end insert 'except on a question of law in those cases where the parties to the application for leave have been heard and have appeared before the special adjudicator, but otherwise a refusal shall attract a right of appeal.'. No. 10, in page 11, line 14, at end insert 'and an application for leave to appeal to the Tribunal shall be on any question of law or fact material to that determination.'.

Mr. Fraser

New clause 7 would prevent the Home Secretary or the Lord Chancellor from making any immigration appeal rules that would deprive an applicant on an appeal, or seeking leave to appeal, of a hearing before the special adjudicator or the immigration appeal tribunal. It is a matter to which we referred in our previous debate and about which we argued at great length in Committee. We return, however, to our belief that those who have a case to be heard have the right to have their case put to an adjudicator personally, to be heard personally before him, rather than the application being submitted in writing for leave to appeal.

Amendment No. 4 would incorporate in the new draft rules, which the Government have published today, rule 14 of the immigration appeal rules of 1984. Rule 14 of the set of rules that apply to existing appeals gives a person whose appeal has been turned down by an adjudicator the right to obtain leave to appeal to the immigration appeal tribunal on a point of law—that is the first limb—and provides an exception that takes effect in those cases where it is argued by the appellant that to refuse leave to remain would put the Government in breach of the convention on refugees. In that second, limited area, there is a right of appeal to the immigration appeal tribunal.

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By means of amendment No. 4, we propose to preserve the special right that has been incorporated in the appeal rules ever since they were first enunciated. I think that the Minister would agree that the 1984 rules are a rehash of earlier rules. It is important to draw attention to rule 14 because unless its effect is preserved the new rules will represent a significant subtraction from the rights of claimants for political asylum who are in the United Kingdom.

Amendment No. 5 is an alternative to the new clause. When someone had not been able to exercise the right to be heard before a special adjudicator, the breach of that fundamental right would in itself amount to a ground for appeal on a point of law to the adjudicator and thence to the immigration appeal tribunal.

Amendment No. 6 is an alternative to amendment No. 5. Perhaps it goes further, because it would widen appeal rights to include an appeal on a point of fact. If the Minister does not concede the new clause and amendment No. 5, amendment No. 6 would introduce a right of appeal on a point of fact and everyone would be able to exercise that right of appeal.

Amendment No. 9 replicates amendment No. 5 in its application to the immigration appeal tribunal. Amendment No. 10 replicates amendment No. 6, again in respect of the immigration appeal tribunal. At the heart of the new clause and the amendments is the right to be heard, which is fundamental to the exercise of an appellant's rights before any judicial or quasi-judicial body.

The Minister may be going about the matter in the wrong way and thereby making a rod for his own back. He said earlier that to obtain leave to appeal it is necessary only to write out a claim, and if every word of it is true that must constitute a ground for giving leave to appeal to the special adjudicator.

Mr. Peter Lloyd

That is only if everything in the claim is true and it provides grounds that are arguable under the United Nations convention. Only then will the adjudicator be obliged to allow an oral appeal.

Mr. Fraser

That is what I meant. As the right to be heard is being removed, something of a premium is being put on a case that will not be made under oath and in such terms that it will be difficult for the special adjudicator to resist giving leave to appeal. That is why I said that the Minister may be making a rod for his own back.

The proper solution might be to adopt the procedure of the High Court in cases of judicial review. In such cases—this is not exclusively so—the applicant makes an application in writing to be considered by the judge. In many cases, the judge will give leave for judicial review—in other words, leave to appeal against a decision refusing the status of political asylum. In those cases where the judge does not give leave on the written application, there is automatically the right to renew the application and to make an oral application to the divisional court and to be heard. It is the right to be heard at one point or another in the process which is at the heart of the new clause and the amendments.

In the long run, it would satisfy the basic tenets of justice if our amendments were accepted. Ironically enough, they might provide greater satisfaction for the Minister. Perhaps we can reach agreement and the Minister will be able to say that, on consideration, he will ensure that the Bill, if not amended in the terms that I put forward but by means of similar drafting, will eventually establish the fundamental right to be heard that should appear in this legislation.

Mr. Corbyn

I support new clause 7 and the amendments that are grouped with it. I do so with no great joy because they take up one of the issues that we debated at great length in Committee. We were concerned about the lack of proper rights to appeal for those seeking political asylum or any other sort of asylum, social, religious or whatever. I moved an amendment in Committee, with the support of others, which would have prevented the Home Secretary having the right to remove anyone from this country until all the legal avenues open to him or her had been exhausted, including the European Court of Human Rights. It seems that we are in the unfortunate position where the hated Immigration Act 1971, which established the immigration appeal tribunal system, is the only legislation on which we can fall back to provide some avenue for appeal that is slightly better than that of an adjudicator.

I do not believe that the Government have acted in any great belief in the right of appeal. Instead, I believe that they are under pressure from the courts—court administrators and, no doubt, groups of High Court judges who get together for port at the end of their dinners to chat about these matters—which are concerned about the many judicial reviews that have been sought and the hearings that have been granted.

It is a condemnation of the United Kingdom's ability to allow those seeking asylum a proper avenue of legal appeal if the only route open to them is for their solicitor to ensure that an application for judicial review is heard. The system of judicial review was not set up for that. It is a long stop that has become the norm because there is nothing else open to applicants and those who represent them. We are saying that those who are denied the right of asylum should at least have the opportunity to appear before the immigration trial tribunal. That is because it is better than no form of appeal and not because I think that it is an especially good system. It is not acceptable to have asylum applications dealt with in the present manner and in the way in which the Bill envisages.

Any form of justice should include the presumption of innocence and a separation of legal and judicial powers. My experience of immigration law and asylum law is that there is no presumption of innocence, especially in immigration law. There is no presumption at any stage in favour of the person who is seeking asylum in this country. There is a presumption against them that is contrary to the principles of English law. It leaves enormous powers in the hands of the Home Secretary, who has been ready to use them. One thinks of the poor teacher from Zaire who was disgracefully bundled out of this country, apparently lost in Charles de Gaulle airport, and was finally dumped back in Zaire—from which he had fled in great fear. All that was because the Home Secretary was not prepared to take action. One thinks also of the Tamils who were wrongfully deported to Sri Lanka. There were other instances in which the actions of the Home Office and of the Home Secretary in particular were found seriously wanting. The amendments will not right all those wrongs, but they provide an opportunity for the due process of law and for an appeal.

The alternative suggested by the Home Office is a series of adjudicators. I do not doubt that many of them will be well informed and well trained. However, the most well-informed and well-trained people are capable of making mistakes. The point at issue is how one can introduce checks and balances into a legal system that allows mistakes to be made without offering any chance of rectifying them. The Government's proposals provide no such opportunity, and the amendments will make a slight improvement to what is really a pretty squalid little Bill.

Mr. Rupert Allason (Torbay)

I am prompted to speak against new clause 7 by the remarks of the hon. Member for Islington, North (Mr. Corbyn). There is of course in the Bill a presumption against applicants for asylum. Everyone would concede that. The reason is that a large number of the people who make applications have already destroyed their identity documents.

As to the immigration appeal tribunal, the Bill has been brought before the House because that tribunal is swamped and is in administrative difficulties.

Mr. Corbyn

The hon. Gentleman should be more cautious before stating that a large number of the people who make applications have already destroyed their identity documents. Does he have any proof? That is not the case, and the hon. Gentleman should check the figures. Has he read all the applications that are claimed to be bogus, or does the hon. Gentleman rely—like the right hon. Member for Chingford (Mr. Tebbit)—on the front page of the News of the World for his information?

Mr. Allason

I am sure that my hon. Friend the Minister will be able to clarify that point. My understanding is that two thirds of those people arriving in the United Kingdom claiming asylum do so with forged, mutilated or no documents. It is in those circumstances that the Government have brought the Bill before the House, which seems perfectly reasonable. The old system clearly cannot cope with the level of applicants, and to return to it would be absolutely dotty.

Mr. Peter Lloyd

The hon. Member for Norwood (Mr. Fraser) rightly said that the central issue is the right of leave to appeal. That is why I registered surprise when we appeared to reach that aspect when debating the previous group of amendments. The amendments now before us deal primarily with the Bill's requirement that where an applicant's claim is rejected by the Home Office, and before he can make a full oral appeal, he must obtain leave from the adjudicator, who will decide from the papers whether to grant it.

In Committee, and when debating the previous group of amendments, 1 made it clear that the rule is necessary to avoid manifestly unfounded and third safe country claims introducing unnecessary delays into the system. In third country cases, speed is of the essence if we are to be sure that the third safe country will receive the applicant and consider his or her claim fully.

Mr. Corbyn

The third country aspect is referred to in more measured tones in the draft rules that the Minister published today. In Committee, I expressed concern that third countries might on the face of it appear safe, yet the reality of someone from parts of north Africa living in Paris or another major French city, given the degree of racist violence that is to be found there, might make France, for example, far from safe. Does the Minister concede that an apparently safe third country may not prove to be so for some individuals?

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Mr. Lloyd

My prime consideration is whether an asylum claim will be properly heard under the terms of the UN convention. Some claims will be properly heard in a third country, but that may not be so in respect of some individuals from a particular country. We would not seek to return a person if we were not satisfied that a country had a proper system for considering asylum cases and that it would assess thoroughly the claim of the individual in question. We always refer third country cases to UKIAS, as the point of contact with the UNHCR in respect of such matters.

I cannot tell the hon. Member for Islington, North (Mr. Corbyn) that reports of violence or discriminatory behaviour in a particular country would of themselves serve as a ground for never returning someone there as a third safe country. However, the totality of a person's claim, even in respect of a third safe country, is taken into account—and there is the right to seek leave to appeal before the adjudicator. If the adjudicator considers that there is an arguable reason for an individual believing that he or she would not receive reasonable treatment of the kind required under the United Nations convention in the third safe country, he would allow an appeal to be heard. That matter is for the adjudicator.

The original draft procedural rules made it clear that an adjudicator had to attend a full hearing unless he was satisfied that the applicant did not have an arguable case—that, even if all the applicant said was true, it still did not add up to a claim that could be argued even under the provisions of the 1951 convention. From the remarks of the hon. Member for Norwood, it was clear that it was dawning on him how low was the threshold in practice. Therefore, I do not accept that the Opposition's fears are justified.

If there is a soupcon of doubt in the adjudicator's mind that there is the beginning of a case that can be argued, he must go to an oral hearing. If a decision of the Home Office hinged on the applicant's credibility, the adjudicator would be compelled to permit an oral hearing. He could not say to himself, "I am not surprised that the Home Office turned down that individual, because I cannot imagine anyone believing his story." He could not refuse an oral hearing on that basis, but must allow one on the basis of the credibility of the individual and the tale that he told.

The adjudicator can refuse an oral hearing only if he is certain that, even if the applicant's story is true, it does not bring that individual into the ambit of the 1951 convention. In Committee, I undertook to consider whether that should not only be spelt out more fully in the procedural rules but—as it is crucial—be written into the primary legislation. My noble and learned Friend the Lord Chancellor and my right hon. Friend the Secretary of State agree that it should. I am sorry that the wording is not ready for this stage, but it is the Government's intention to table an appropriate amendment in another place.

I hope that that will satisfy Opposition Members to some extent, especially as there is likely to be a further debate about the issue in the House of Commons. I feel that a filter should be available for claims that have no merit. I do not believe that we should allow appeal against a refusal of leave, given that such refusals will be issued only when there is no arguable case under the convention. If it were impossible to refuse a hearing on the papers, one of the Bill's purposes—its provision for manifestly unfounded applications to be dealt with speedily—would be undermined.

If, however, an adjudicator ignored the criteria that I have described—whose liberality has been recognised by the hon. Member for Norwood—and refused an oral hearing although an arguable case existed, that would be exactly the kind of circumstance on which judicial review would properly bite. I do not believe that it will come to that; but the provision is there lest an adjudicator interpret the requirements too narrowly.

Several amendments seek to ensure that appeals from the adjudicator to the tribunal are not confined to matters of law. I agree with that, but I do not think that such a provision should be contained in the legislation. The normal place for such measures is in the procedural rules, and the draft rules now include an amendment that widens the grounds to matters of fact. I do not believe, however, that the grounds for appeal to the High Court should be similarly widened; I think it right that appeals from the tribunal should still be confined to matters of law.

Mr. Patrick Ground (Feltham and Heston)

Have I understood my hon. Friend correctly? Is he saying that the provision previously contained in rule 5(7), which referred to those with no arguable claim for asylum, will now be contained in the body of the Act?

Mr. Lloyd

That is the Government's intention. I hoped that we would be able to discuss that provision tonight, but it will now be discussed in the other place; if it is accepted there, it will return to the House of Commons later.

The hon. Member for Islington, North (Mr. Corbyn) suggested that the appeal rights had been brought under pressure by the requirements of the courts and the Government's desire for less judicial review. Certainly I hope that there will be less judicial review, but one of the main reasons for our proposals is the demonstrable unfairness of circumstances in which only some asylum seekers have the opportunity to appeal to an independent authority. Surely they should all have the same rights. Given our wish for a speedier process, the safeguard of an independent appeal system for everyone is especially important.

My hon. Friend the Member for Torbay (Mr. Allason) is right: numbers have risen sharply. It is because of that increase that some of the measures in the Bill have been included. However, in so far as the burden of proof mentioned by the hon. Member for Islington, North exists, it was not caused by the greater numbers. When someone arrives and asks for asylum, it is natural to say, "Tell me about your experiences; I must be satisfied that you are indeed seeking asylum." That will inevitably place some burden on the asylum seeker, but one reason for the section of the rules that deals with credibility—although it may not govern the eventual decision—is that it is fair to expect someone with a well-founded claim to wish to co-operate with the authorities, and to reveal as much as he can about himself, his origins and his case. It is up to him, in the first place, to explain why he is seeking asylum.

Mr. Allason

My hon. Friend has mentioned the number of asylum seekers who arrive with mutilated identity papers, or whose papers have been destroyed. What is the proportion?

Mr. Lloyd

About two thirds of those who seek asylum at the ports, who themselves constitute about a quarter, or perhaps a third, of asylum seekers. The figure currently runs at 10,000 to 12,000 a year. Naturally, we ask why the people concerned have no papers, or why their papers have been mutilated, and in many cases they give convincing answers: indeed, their explanations may well enhance their credibility. It is reasonable, however, for us to make inquiries, to take the answers into account and to spell out the requirements in the rules, as we have always done.

Mr. Corbyn

The Immigration (Carrier's Liability) Act 1987 recognises that some people fleeing persecution are forced to destroy their real identity and to seek a false identity. Will the Minister confirm that the Home Office does not intend to depart from the recognition that people who are fleeing for their safety may have no alternative but to destroy their identity, and travel with forged documents?

Mr. Lloyd

I accept what the hon. Gentleman has said. No one who has arrived with mutilated documents, or without documents, will ever be refused asylum in this country. As I have said, however, such people will be asked for an explanation. The answer may well affect their credibility: it may enhance that credibility, but it will often do the opposite.

Mr. Tim Janman (Thurrock)

One of the main reasons for the Bill is the massive increase over the past two or three years in the number of people either seeking entry on the basis of being asylum seekers, or entering with a visitor's or student's visa and, after six or nine months, deciding—lo and behold!—that they are really political refugees.

As the Bill acknowledges, it is essential to provide guaranteed safeguards to ensure that the applications of genuine political refugees are examined properly and—if proved to be genuine—dealt with accordingly. It is equally essential to provide a fast-track procedure to identify and weed out the vast majority of the people who constitute that increase in numbers—those who could not be thought other than thoroughly bogus except by fatuous do-gooders. Such people do a great disservice to genuine applicants for political refugee status.

Mr. Boateng

The genuine tone and flavour of the hon. Gentleman's remarks are as we would expect, given his pedigree in this regard. It is not clear, however, to which amendment he is directing them.

Mr. Janman

I am surprised to hear the hon. Gentleman say that. I was in the middle of saying that it is important to establish procedures that will provide safeguards for genuine applications.

Mr. Boateng

To which amendment does the hon. Gentleman refer?

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Mr. Janman

I am speaking to all the amendments that the House is currently considering. The hon. Gentleman will soon learn that my comments are about the collective impact of the amendments that the Labour party has tabled. I do not wish to get bogged down in the technical legalities of any particular amendment. The point that I was seeking to make when I gave way to the hon. Gentleman was that it is important that a mechanism should be put in place that ensures that the vast majority of applications that are clearly bogus can be weeded out effectively, efficiently and quickly. If that is not done, genuine applicants will have to wait much longer, and will be caught up in a massive queue.

The Labour party is being as deceitful as ever. A general election is looming. The vast majority of ordinary working men and women, whom the Labour party purports to represent, are in favour of the provisions of the Bill and the new immigration rules that will also come into force. However, rather than just stand up and say, "We oppose the Bill because we want the outrageous things that have been going on during the last two or three years to continue," the Labour party has tabled amendments that look very nice on paper but whose effect, if they were accepted by the Government, would be to drive a coach and horses through the required changes that the Bill will bring about.

If the amendments were accepted, we would end up maintaining a long-drawn-out appeals procedure for all these bogus applicants. They would be able to keep on appealing and we would be unable, therefore, to weed out quickly any bogus applications. We would therefore be unable to reduce the massive backlog of genuine applications.

We know what these people do while their cases go on and on. Either they disappear into the inner depths of Birmingham or Bradford or wherever, or they meet and marry a British citizen, thereby bringing a new arrow into their armoury when it comes to arguing their case for being allowed to remain in Britain, having entered this country in the first place by means of deceit and lies when they reached the port of entry.

I am sure that the Minister agrees with me that the amendments should be resisted and treated with the contempt they deserve. They would undo the objective of the Bill, which is to deal with a very serious problem about which many of my constituents and, I am sure, people in general are becoming increasingly concerned. They expect the Government to plug the gap. I am pleased to see that they are plugging it. I note that, once again, the Labour party is trying to prevent measures being taken to sort out a problem that worries millions of people in this country.

Mr. Fraser

I shall not respond to what the hon. Member for Thurrock (Mr. Janman) has just said, except in one respect. He said that he wanted a fast track procedure to get rid of undesirable people. That fast track procedure is on its way in Thurrock. It is called the general election.

Mr. Janman

The hon. Gentleman is absolutely right. When I hold my seat at the next election, I am sure that his party will have to choose a new candidate for the following election.

Mr. Fraser

I was referring not to the hon. Gentleman's opponent but to him.

I have an unpleasant surprise for the hon. Gentleman. He urged the Minister to resist the amendments. I intend to ask the leave of the House to withdraw them. The Minister has practically met the point that we made by means of two very important concessions. He intends to table an amendment in another place to deal with the matters that he outlined in his speech. If the amendment has the effect that the Minister said it would have, it will go a very long way towards meeting our point. It will ensure that, in practice, virtually every applicant for political asylum will be given an oral hearing. That is what we want. That is what I believe the Under-Secretary of State will give us. We shall have the opportunity to examine the matter again when the Bill returns here. We have almost got together on this issue.

In addition, there are the substantial changes that were set out by the Under-Secretary of State. They are described in the draft rules governing appeals to the immigration appeal tribunal.

I am grateful, for the time being, for the concessions that have been promised by the Under-Secretary of State. I am sorry to have disappointed the hon. Member for Thurrock.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.