§ [Relevant documents: The Third Report, HC 252, Fifth Report, HC 304, Thirteenth Report, HC 640, and Fourteenth Report, HC 828, of Session 2003–04 from the Joint Committee on Human Rights, on the Committee's continuing scrutiny of Bills.]
§ Lords amendments considered.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
I inform the House that privilege is involved in Lords amendments Nos. 18, 27 and 28. If the House agrees to the amendments, I shall arrange for the necessary entries to be made in the Journal.
§ The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy)
I beg to move Government amendment (a) to the Lords amendment.
§ Mr. Deputy Speaker
With this, it will be convenient to discuss the following: amendment (h), Government amendment (b), amendment (i), and Government amendments (c) to (g) thereto; Lords amendments Nos. 29 and 42 and Government motion to disagree; Lords amendment No. 43 and Government motion to disagree; Lords amendment No. 44 and Government motion to disagree; Lords amendments Nos. 45 and 46, Government motion to disagree and Government amendment (a) in lieu thereof; Lords amendments Nos. 47 to 60; Lords amendment No. 61, Government motion to disagree and Government amendments (a) to (c) in lieu thereof; Lords amendment No. 62 and Government amendments (a) and (b) thereto.
§ Mr. Lammy
Let me summarise the effect of the Government motions that we are proposing. We are proposing that the House agree to most of the Lords amendments to clause 14, schedule 1 and schedule 2. Lords amendment No. 28 brings in the bulk of the new policy, and to that we are proposing further amendments to the High Court review process. We aim to change the time limits back to five days; to allow other written submissions in limited circumstances; and to give effect to an agreement with the Opposition in the other place that the variable fees element of the new legal aid system should be removed.
Although we are technically disagreeing with Lords amendments Nos. 42 to 44 and 61, as I shall outline later, the new amendments have the same effect of retaining lay members in the new tribunal. We are also disagreeing with Lords amendment No. 46 and moving an amendment to restore the discretion of the president of the Asylum and Immigration Tribunal to direct how many members should hear each case. Finally, Government amendment (a) to Lords amendment No. 62 also restores the five-day time limit in the new filter process.
§ Mr. David Heath (Somerton and Frome) (LD)
Just so that we are absolutely clear about what the Minister 1162 is saying, will he confirm that he is talking about five calendar days, not five working days, as he is amending the phrase "10 working days"?
§ Mr. Lammy
I am indeed talking about five working days. The issuing of the decision is taken as being from two days after the case hay left the court, allowing for post and other things. So it is five days from that period. I am sure that we can discuss such matters later.
Hon. Members will recall that when the Bill left the House, we were proposing to oust the jurisdiction of the higher courts. As my noble and learned Friend, the Lord Chancellor, said on Second Reading in another place, we have listened carefully to the arguments made by Members of both Houses and the senior judiciary. We have also had regard to the Select Committee on Constitutional Affairs and the Joint Committee on Human Rights. The amendments, in particular amendment No. 28, reflect our considered response to those arguments and take forward a number of constructive proposals. I am pleased that we have been able to move forward with consensus among stakeholders in the legal profession and the judiciary and the majority of both Houses on this important legislation.
Let me remind hon. Members of the delays and abuse that we are seeking to remedy. It is important that the system for asylum and immigration appeals is fair, but it must also provide finality and be speedy. A swift, final decision is in the interests both of genuine refugees and of the British taxpayer, as was said on Second Reading. The British taxpayer should not be expected to bear the cost of supporting those with unmeritorious cases as they play the multiple tier s of appeal over and over again. It is important to emphasise that fewer than one in 10 challenges to an adjudicator decision results in a different outcome, which shows that the system can and must be improved. Our intention in introducing the single tier is to target delay and reduce abuse in the system. I am confident that our proposals will achieve that by reducing what can a 62-week process to under 20 weeks.
Let me explain how the new system will work. I will refer to the High Court and Court of Appeal but, of course, for cases in Northern Ireland and Scotland, the appeals will be determined by High Court or Court of Appeal in Northern Ireland and the Court of Session in Scotland.
Amendment No. 28 replaces subsections (6) and (7) in clause 14 with the new system of judicial oversight of tribunal decisions set out in proposed new sections 103A to 103E that will be inserted into the Nationality, Immigration and Asylum Act 2002. Under the new system, a party to the appeal will be able to make a review application to the High Court on the grounds that the tribunal may have made an error of law. During a transitional period, these applications will be considered in the first instance by a senior member of the tribunal. Our intention is that applications must be made within five days unless the appellant is abroad. There is provision to vary the time limits by order.
If the High Court is of the opinion that there may have been an error of law, it will send the case back to be reconsidered. In cases in which the High Court thinks that the case raises a question of law of general 1163 importance, it can refer the case to the Court of Appeal. If a case has been considered by a three-member panel, there is a direct right of appeal to the Court of Appeal with permission, and if an appeal has been reconsidered by the tribunal, there is also a right of appeal to the Court of Appeal with permission. We have also introduced an enabling power to make regulations for a new legal aid scheme for both the High Court review process and for reconsideration of cases by the tribunal. I shall set out that process in more detail when I speak to Government amendments (f) and (g) to Lords amendment No. 28.
Lords amendment No. 45 clarifies the role of the senior judiciary in the new tribunal, and Lords amendments Nos. 47 and Nos. 50 to 60 are consequential.
Amendments (a) and (b) to Lords amendment No. 28 and amendment (a) to Lords amendment No. 62 restore the Government's original intention that five-day time limits should apply to the High Court review process under section 103A. Time limits of one working week for making a review application to the High Court are central to achieving our aims of speed and finality. We are confident that five days are sufficient for an appellant to consult their legal representative, for the representative to prepare the application and for the application to be lodged.
§ Mr. Dominic Grieve (Beaconsfield) (Con)
Is there not a problem? The Minister and, indeed, the whole House want a system under which unmeritorious appeals are not brought; we all share that view. Therefore, it is important that lawyers who are advising their clients should have a proper opportunity to consider matters, especially in light of the fact that we are properly to introduce sanctions, including the loss of legal aid, for an unmeritorious appeal. Does that not in itself mean that five days is a very shot t period? The Minister will see that I have tabled an amendment suggesting an alternative of seven days, which would go some way to providing extra flexibility. Surely 48 hours' difference will not grind the system to a halt.
§ Mr. Lammy
I hope to make some progress, but the hon. Gentleman will understand that we must go back to basics to ensure that we have the right amount of time. We are dealing with an error of law. The applicant has made his case to the IND, and gone on to do so to the tribunal. If we look at the current working arrangements on statutory review, we see that lawyers are taking about five or six hours to make such a determination, with some additional hours—say two or three—taken up if they have asked counsel to draft advice. That is effectively one and a half working days, but we are allowing them five working days, give or take the two days for issuing a decision. A working week is a suitable and appropriate amount of time in which to make an application.
§ Mr. Heath
I am sorry to labour the point, but I want to be absolutely sure. The Minister keeps on referring to five working days, yet that not what would appear in the Bill if his amendments were accepted. The Bill would simply say five days, which must be five calendar days. 1164 If we are to interpret five days as five working days, we must interpret the reference to 28 days in the following subsection as 28 working days. Will the Minister clarify his intention, because he is mixing two terms?
§ Mr. Grieve
The point raised by the hon. Member for Somerton and Frome (Mr. Heath) is perfectly valid. There appears to be an ambiguity in the Bill. It would be useful if the Minister confirmed through his officials during this debate my understanding that five days is not described as five working days, because under the rules of court, a period of under a week automatically excludes weekends.
§ Lynne Jones (Birmingham, Selly Oak) (Lab)
Will my hon. Friend explain the status of bank holidays in this context?
§ Mr. Lammy
Bank holidays will be taken into consideration under the rules in the same way as weekends.
Normally the legal representative will already be familiar with the case and the tribunal will have provided reasons for its decision. We expect the process to involve about six hours for a legal representative and up to five hours for counsel, if counsel is used in the case.
§ Mr. Mark Oaten (Winchester) (LD)
The Minister just said that normally the legal adviser would be familiar with the case. On what evidence does he base that assertion? I should have thought that quite a number of individuals will want to change their legal adviser, especially if they are about to mount an appeal, so new advisers will have to get to grips with their case.
§ Mr. Lammy
The overwhelming number of clients stay with their legal adviser. We are discussing cases involving an error of law. A new legal adviser should be able to establish that error of law on appeal within five days. If—it is a big if—that were not the case, a new legal adviser would be able to go to the court and ask the judge to exercise his discretion to extend the period. Provision is made for that in new section 103A(4)(b), which gives the court the power to vary the period.
§ Mr. Robert Marshall-Andrews (Medway) (Lab)
The Minister seems to be saying that, whether it is five days or 10, the period is arbitrary. It is certainly extremely short compared with the time normally allowed for appeal procedures—the shortest period that I know of is 14 days. What is the assessed benefit to the system, the Government or anyone else of five days rather than 10?
§ Mr. Lammy
As I said, only one in 10 applications succeed and there are far more appeals in this part of the 1165 tribunal system than in any other; it is therefore important that we consider the time scale. Hon. Members have been telling Ministers for some time that they are worried about the quality of some—not all—of the legal representatives in the asylum field. What we do not want is an extended period that allows individuals time to shop around for various opinions and then make an unmeritorious application. We had this debate on Second Reading. The figures show that five working days—a working week—and giving the judge discretion to vary the period will be sufficient, especially when one considers that, on average, it takes about six hours to prepare an application on an error of law. I stress that in the exceptional cases in which one working week does not provide sufficient time, both the tribunal and the High Court will have discretion to extend the period and to allow a late application to proceed. That clearly provides an important safeguard for applicants for review. I urge the House to recognise the balance that we seek to strike and to support the amendments.
Government amendments (c) and (d) to Lords amendment No. 28 introduce an additional flexibility to the procedure for review. Rules of court will be able to permit the court to consider additional written submissions.
I move on to Government amendments (f) and (g) to Lords amendment No. 28. As I explained, section 103D provides an enabling power for new legal aid arrangements. Under the new scheme the intention is that regulations will provide for the tribunal to order legal aid to be paid after the reconsideration of an appeal if the case is successful and decided in favour of the appellant, or the case is a near miss. In exceptional circumstances the High Court will have the power to order legal aid to be paid for the review process. At this stage the court is considering only whether or not there may have been an error of law which the tribunal or the Court of Appeal should consider.
Government amendment (f) recognises concerns raised about the proposal for the fee to vary depending on the result of the reconsideration or referral. Our amendment meets those concerns by removing the ability for payments to vary.
Government amendment (g) is in response to the helpful discussions about the importance of funding cases that have merit. The amendment links the power to order funding more closely to the prospects of success of the application. We have always intended cases with significant merit to fall within the scope of the scheme and this amendment ensures that they will. Through these new arrangements, we are asking lawyers to share the risk with the taxpayer when deciding whether a case should be pursued beyond the single tier. We recognise that there are many good immigration lawyers, but we also know that unfortunately there are some in this area of the law who have continued to bring unmeritorious cases. The new arrangements will encourage good practice throughout the profession, and sit with all the other things that we have done: accreditation, the establishment of the Office of the Immigration Services Commissioner, bringing cases earlier to the Legal Services Commission to determine and ensuring that we have quality and value for money across the field in terms of legal provision for asylum and immigration.
§ Mr. Grieve
I confess that I had some difficulty following the Minister's argument a moment ago and I may have misunderstood the position. He will be aware that in the other place there was a debate on 6 July at columns 741 and 742 relating to the extent to which there should be a conditional fee system. It was made quite clear in the other place that the official Opposition and, indeed, others, would not accept a conditional fee system. Lord Filkin indicated that he accepted that, as long as there was a tough merits test. My understanding is that although the Government have removed the conditional fee system for reconsideration, they have not removed it for review. That may be an accident that is curable, but I would like an assurance that that is what is going to happen.
§ Mr. Lammy
The hon. Gentleman knows that there have been discussions as recently as a few minutes before I rose to move these amendments, and it is the Government's intention, following those discussions between Lord Filkin and Lord Kingsland, to move further amendments, as was indicated in another place.
§ Annabelle Ewing (Perth) (SNP)
The Minister referred a moment ago to a scenario where there would be a near miss; that is a new concept to me as a lawyer. What definition is set out of what a near miss means?
§ Mr. Lammy
As I indicated, we are taking an enabling power in this legislation. There are a number of scenarios where it would be right for the lawyer to receive payment where he had not been successful on behalf of the applicant, but we can define that, as the hon. Gentleman indicated, as a near miss or a case that has merit. For example, if an application was made under the law as it stood at one time, but the House of Lords or the Court of Appeal made a decision in the intervening period that changed that legal basis, it would probably be right for the lawyer to receive funds. Furthermore, even if an applicant has been unsuccessful in making their claim, their case may have established important case law that defines a particular group or community and will have a lot of bearing on immigration and asylum cases. In such circumstances, it would also be right for the lawyer to receive funds.
Those are the circumstances that have been discussed. We are keen to continue to discuss how we should define in regulations the scope of s meritorious case. On that basis, we wanted to include cases in which the lawyer was right to bring the case, but was not successful in acting on the applicant's behalf.
§ Mr. Lammy
I have already said that these circumstances are a matter for regulations. There will be instances in which the lawyer has not won, but the case was of some merit. That issue has been discussed in the other place, which is why we have tabled the amendments. Let us leave the technical discussions, as I think is right, to the legal profession and the 1167 Department for Constitutional Affairs in going forward to regulations. We will discuss the matter when we come back on the affirmative procedure.
§ Mr. Grieve
I apologise for returning to this point. I would not have done so if the Minister had not spoken at the Dispatch Box about the lawyer sharing the burden of responsibility, which suggested that the Government still had a conditional fee agreement in mind. My understanding is that it was made absolutely clear in the other place that the Government would not get a conditional fee agreement through the other place, but that Lord Filkin indicated—I shall quote him later—that he appreciated that that was the case and said that the matter could be reconciled by a tough merits test. I assume that that is what we are dealing with, and that the lacunae that seem to exist in terms of the drafting of Government amendment (g) will be cured along the lines of the assurance that the Minister has given. I am sorry to ask again, but in view of the words that he used—I realise that forms of words can be used in a slightly odd fashion and that people can mean different things—I would be grateful for reassurance on that point.
§ Mr. Lammy
I am happy to give the hon. Gentleman that reassurance.
Through the new arrangements, we are asking lawyers to understand that the Government take the matter seriously and that it is right that we seek to limit the sort of unmeritorious cases that have been brought in the past. That is why I ask hon. Members to agree to our amendments.
I turn now to Lords amendments Nos. 42, 43, 44 and 46 to schedule 1 and Lords amendment No. 61 to schedule 2. Together, those amendments would retain lay members in the new tribunal and require the majority of appeals to be determined by a panel. The Government are proposing three amendments in lieu, which accept that there is a role for lay members in the new tribunal and tidy up the drafting. Government amendment (e) to Lords amendment No. 28 is consequential upon the reintroduction of lay members.
We disagree with Lords amendment No. 46, however, and Government amendment (a) in lieu does not require the majority of appeals to be heard by panels. Instead, it allows the president to make arrangements having regard to the complexity of the case and other circumstances. We must ensure the appropriate level of scrutiny, and giving the president discretion, having regard to the complexity of the case and other circumstances, will create a flexible and efficient approach to case management. Our amendments will ensure that panels hear the right cases, which will benefit from the input of lay members. I urge hon. Members to support the Government amendments in lieu.
Lords amendments Nos. 48 and 49 relate to appeals before the Special Immigration Appeals Commission. Lords amendment No. 48 provides for a more streamlined procedure for appeals against deprivation 1168 of citizenship, which reflects our intention to run deprivation and deportation appeals concurrently, and it also protects the interests of the individual if a deprivation order is overturned. Lords amendment No. 49 would confer a parallel jurisdiction on the Special Immigration Appeals Commission covering appeals to that body against deprivation of citizenship under section 2B of the Special Immigration Appeals Commission Act 1997.
On that basis, the Government are pleased to return with the amendments, which have been discussed for some months.
§ Lynne Jones
I have been listening to the debate, which I find extremely confusing, and gather that further discussions will occur in the other place. I note that the Government have yet to respond to the report by the Joint Committee on Human Rights, which has expressed reservations. Can the Minister provide an assurance that the Government will respond to that report before the matter is dispensed with?
§ Mr. Lammy
The Home Office Minister with responsibility for asylum and immigration has responded to the report by the Joint Committee on Human Rights. Because we have listened to the Joint Committee on Human Rights, the Constitutional Affairs Committee, hon. Members of this House and Members of another place, we have reached a broad consensus on this important legislation, and we heard in this afternoon's debate that procedural points about time limits are all that remain between us.
§ Mr. Grieve
I start by saying to the Minister, in the same spirit as that in which he concluded his remarks, that, if the sinner repents, it is wise for those who see the repentance at least to acknowledge it. The Bill left this House in the most dreadful condition—as far as the rule of law in this country is concerned, it was not far off being an obscenity—and despite our attempts to persuade the Government on Report, the Government appeared obdurate.
That said, an overwhelming majority of Members of the other place, including many who take the Government Whip, have persuaded the Government to see sense. Once again, we have had to rely on them to save this country from a form of tyranny, so hon. Members, and perhaps even Ministers, should be grateful. As the Minister says, we are left, as a result of their hard work, with a number of areas of detail. I acknowledge that and hope that we can satisfactorily resolve them. The question whether that can be done depends on whether the Government will now show a little flexibility.
I shall start with the main bone of contention, which might appear to be small, but precisely because it is so small, I find it puzzling. On Report, I tabled an amendment that provided seven days in which to appeal to allow a statutory review procedure rather than the ouster of the judicial scrutiny of the asylum process. When the matter went to the other place, Members were particularly concerned about conditional fee agreements. It became clear that, if the Government persisted with conditional fee agreements, also known as no win, no fee agreements, the time that it would take to secure the services of a lawyer—who would need to 1169 make an assessment and obtain the necessary insurance, if they could get it at all to take on a no win, no fee case—made the proposed seven-day period insufficient. That is why a period of 10 days, which is still short, was inserted. Under the influence of the other place, the Government have considerately suggested that they will not persist with no win, no fee. They said that they would set a tough merits test, which we wholly support as long as we can ensure that that is what appears on the statute book. I therefore accept that there is at least an argument for seven instead of 10 days. However, I am mystified about the Government's determination to maintain a five-day period in which an appeal can be lodged. That must be considered in the overall context of the time periods for processing asylum applications.
Two points are worth noting. First, in the other place, we tabled an amendment to provide that the Home Office had to make the determination in six weeks. If anything will speed up the asylum process, it is the Government and the Home Office making a determination in six weeks, not three months, six months, nine months or even longer. However, the Government did not want our amendment. They said that they were not prepared to live with the six-week period and, consequently, we do not have it.
Secondly, we made another suggestion in the other place. At the end of the process, there are often delays before someone is removed because judicial review can still be invoked to delay removal or argue that removal should not take place. We proposed a statutory review procedure to speed that up but the Government rejected it. They said that they were determined to keep the judicial review procedure for the tail end of asylum applications. That threatens to delay the process at the end.
The Government insisted that they would not have a statutory review procedure at the end of the process and would not stick to a six-week determination process, yet they are fighting over an extra 48 hours so that lawyers can consider whether to launch an application for review or reconsideration. That is odd and I fear that the only reason for it is the cheapest form of No. 10 Downing street spin.
Throughout the proceedings, the Government have wanted to be able to say, "We're trying and we'll ensure that everything happens quickly. Look at those dreadful people on the Opposition Benches—they're trying to hold up the process." The Prime Minister has presented precisely that sort of cant at the Dispatch Box. I have not heard a proper explanation from the Under-Secretary of why 10 days would make a difference whereas seven days would not.
I do not know what the other place will do when it reviews the matter. The Government will get their way here and we can do nothing about it. However, I urge the Under-Secretary to reconsider whether we can end our proceedings on the Bill on a note of amity. That is why I tabled the two amendments that proposed seven days. Given that the Government have dropped conditional fee agreements, seven days, although a short period, at least provides a little extra. I hope that the Under-Secretary will examine that proposal positively and listen to other hon. Members' comments on it.
I believe that the Under-Secretary has resolved my next point, but I want to make our position absolutely clear. We will have nothing to do with a conditional fee 1170 system. It cannot work in asylum appeals because it will mean that people are unrepresented. I believe and hope that we have persuaded the Government of that. It is therefore bizarre that the Under-Secretary appeared to be reading from an old text, which clearly suggested that he was still trying to persuade the public that the conditional fee agreement applied. I think that he subsequently explained himself. However, it is clear that the measure will have to revert to this place because a further amendment will be required in the other place to ensure that it covers not only reconsideration but review. In the light of the Under-Secretary's assurances and crystal clear assurances from Lord Filkin, which were the only reason why my noble Friend Lord Kingsland did not press his amendments, I am content to let the matter rest.
The Under-Secretary will be pleased to learn that we are prepared to accept the other amendments. We are pleased that the Government have conceded that scope should remain for lay members of tribunals. We regard that as essential. We are broadly content that the president can exercise discretion to ensure the presence of lay members to help with the decisions of fact in any case of factual complexity. I hope that the Under-Secretary can assure us that there is no intention through the publication of guidelines or Government pressure to try to influence the president's exercise of discretion. I would expect the president to conduct the hearings fairly and equitably. I shall not seek to oppose the Government.
I do not wish to take up time because others want to speak. I have broadly covered our response to the Government amendments. The great thing is that the Government have given way on the main issue. For that, they are entitled to take some credit, although it would never have happened without many hon. Members, including the Government's supporters, showing a great deal of courage. It is greatly to their credit that they did so.
I hope that the Government will respond positively to my points and I look forward to hearing other hon. Members' views about whether the Government are right to push for five rather than 10 days.
§ Mr. Neil Gerrard (Walthamstow) (Lab)
First, those of us who argued on Second Reading and on Report that the provisions on appeal were wrong must say to the Government that we are glad that they have listened. A significant shift has taken place. It is a pity that we had to wait until the measure went to another place for it to happen. Hon. Members of all parties who spoke about appeals on Report argued that the Government were wrong. However, I acknowledge that the Government have listened and we are grateful for this significant move.
Two matters have been flagged up as being of major concern. The first is the number of days for an appeal to be lodged and the second is legal aid. On the second point, I am more confused than when the debate began about the direction that we are taking. The discussion about whether the number of days should be five, seven or 10 resembles that about angels dancing on pinheads. The number is arbitrary. I question whether it would allow a proper appeals system to work. I await the first case after the introduction of the system in which the Home Office fails to meet the five-day target and it wants 1171 to appeal against a decision by the tribunal. I am sure that one will occur before too long. The five days apply to the Home Office as much as to an asylum claimant. I should be interested to note the number of such cases.
I can envisage circumstances in which asylum claimants will experience problems with a five-day timetable. We appear to be moving towards a system whereby asylum claimants are almost encouraged not to worry about getting legal advice, especially at the start of the process. I recently saw a transcript of an asylum seeker induction briefing DVD that is shown to asylum seekers in induction centres. It says about legal advice:You can seek legal advice if you want it; but the Home Office do not believe that you need legal advice to tell Asylum Casework about your reasons for claiming asylum".I appreciate that that is at the beginning of the process rather than at appeal, but it does not really encourage people to get their cases presented properly in the first place, which would cut many unnecessary appeals.
I can also envisage situations in which someone would want to change their lawyer, either because they do not believe that the lawyer who has been dealing with their case when it has gone to the tribunal has handled it properly, or because the lawyer who dealt with that stage was not available, for some reason, to deal with any further reconsideration.
§ Mr. Oaten
The hon. Gentleman has touched on an issue that concerns me. As the process gets more complex, and as the grounds for appeal get more technical and detailed, people may want to switch to much more specialist lawyers. There is a good case, therefore, for individuals to be encouraged to move to a different lawyer to tackle those complex legal arguments.
§ Mr. Gerrard
That may well be the case. I know that there are proposals along with the new systems to produce different levels of accreditation for people handling asylum cases, and I welcome some of what has been done over the past year or two to weed out some of the poor representatives around. I can think of examples from my local citizens advice bureau, which has a legal aid franchise to handle asylum and immigration cases, and in my view does it extremely well, although the person who does most of the work in that CAB does not have a legal qualification. I am sure that, were he faced with the situation of someone who had gone through a tribunal, and if he felt that there might be a point of law on which to argue, he would want to go to someone else to get that specialist advice. Five days will not always be enough to allow people to do that. Although the Minister said that it would be possible to make an application and to try to put an argument that a longer time limit should be allowed, five days is too tight in this area.
On the question of legal aid and no win, no fee or conditional fee arrangements, I am not sure about the direction in which we are going, given the promise that there will be further reconsideration in the other place. I have had some concerns about the way the amendment 1172 that came to us was drafted—it seemed to give extremely wide discretion to the Secretary of State to make regulations that would restrict the exercise of the power to make payments, depending on the outcome of the appeal. One phrase that I still do not understand isthe nature of the appellant's legal representatives",which would remain even with the Government's proposed amendments.
If we are to have a merits test, that is the right direction. I do not want cases with absolutely no merit being funded out of public funds. Certainly, I have seen cases in the present system in which solicitors have told asylum claimants who have lost at an adjudicator's appeal that they will put in an application to the immigration appeal tribunal. When one sees the paper that has been sent to the IAT, it has scribbled on it something along the lines of, "The adjudicator made an error in law." That is all that it says. It gives no indication of what the error in law is supposed to be. Clearly, there is no basis on which to assess that, as the argument is about credibility. The adjudicator has made a decision on credibility and the IAT is not going to get involved in an argument about credibility, as it will say that that is a matter for the adjudicator, and not for it.
I do not have a problem with trying to weed out cases that do not stand up or do not have genuine points of law to argue. One must give the solicitor the opportunity to have a proper merits test, however, and not after the event. That is what worried me about the proposal—decisions would be taken after the event, which would discourage lawyers from taking cases that were 50:50 or that they were doubtful that they would win.
On the whole issue of appeals, the direction in which we appear to be going still concerns me—we are squeezing appeal rights all the time. It is not encouraging to see a paper from the Department for Constitutional Affairs, issued just a few days ago, about its 2004 research programme, in which asylum was one of the areas in which it was asking for offers of research. It described the current system, and the proposals in the Bill, and went on to say:In the current Bill, the Government had originally proposed a judicial review ouster of IAT decisions. However, the ouster clause was replaced with the arrangement described above",which are the arrangements that we now have. It continued:Both lay and expert views are sought on whether asylum seekers and immigrants should have the legal right to challenge Home Office decisions either to a Tribunal or a court.If we are getting research done along those lines, I wonder what we will get next on changing appeal rights, on top of the proposals in the Bill.
The Minister for Citizenship and Immigration has moved significantly. All of us who argued about this section of the Bill tried to say on Second Reading that we could live with a single tier of appeal provided that there was a possibility of changing errors of law and provided that we were not removing the ability of people to go to the appeal courts and higher courts. I welcome the shift that has been made, and I look forward to seeing what we get back on the legal aid sections when we no doubt debate this again, either in a week or two or in the autumn, when the other place has had a chance to have another look at it.
§ Mr. Heath
It is a pleasure to follow the hon. Member for Walthamstow (Mr. Gerrard). As he said, many of us made trenchant criticisms of the Government's initial proposals when we last had the Bill before us. The hon. Member for Beaconsfield (Mr. Grieve) has already described the obscenity of the original proposals. The hon. Member for Woking (Mr. Malins), who was with us earlier, described the Bill asnot only illiberal but grossly unfair".—[Official Report, 1 March 2004; Vol. 418, c. 721.]Unfortunately—I say this is in the gentlest possible way—those two hon. Gentlemen could not quite bring themselves to vote against the Bill. as the hon. Member for Walthamstow (Mr. Gerrard) and my hon. Friends did at the time. Nevertheless, clearly, a strong view was held on both sides of the House that there was a need to do something about the worst excesses of the original proposals.
If I welcome the proposals that the Government have now brought forward, I do so only because they are better than the alternative. The grudging way in which the Minister made his statements this evening suggested not so much a repentant sinner as someone who had been dragged kicking and screaming to the House, who had had to make changes because he knew that he would not get the Bill through the other place without them, and who was still not prepared to listen to what people were saying. Hence, we found that we needed further amendments from the other place to bring the Bill into conformity with what some of us felt had already been agreed.
I will not cover ground that has already been adequately covered by others, as other hon. Members wish to speak. I find it extraordinary, however, that the Government are fussing about the period of 10 working days, and trying to bring it down to five. For heaven's sake, we now have a simplified procedure. How many belts and braces do they need to achieve their objective? Adding another two days, as the hon. Member for Beaconsfield proposes, or leaving the period at 10 days, will make not a ha'p'orth of difference to the efficiency of the system, except in one way. If people are asked to present cases that are ill prepared—if they are asked to find legal assistance within a period that does not allow for that—cases in our courts will be dealt with less effectively, less efficiently and in a way that is less in the interests of justice.
§ Mr. Lammy
The Government are insisting on the provision because we want to stamp out delay. We should remember that 70 per cent. of people who arrive in this country—Europol's figure, not the Government's—are trafficked by criminal gangs. Why do they come here? Because they are exploiting parts of the system. What is the central part of the system that they are exploiting? Delay.
It is right for us to go back to basics, to consider what is necessary to lodge an appeal, and to look at the evidence before us. The evidence suggested that six hours were required, and, if the use of counsel was needed, one and a half working days. It was on that basis that we arrived at five days. It was not because the Government had not thought about the issue in depth.
§ Mr. Heath
Had the Minister been an applicant, he would probably have used one working day with that 1174 intervention. I hear what he says, but let me say this to him: if he wants to speed up the process, let him start with the Home Office. Let him get the Home Office working correctly, making proper assessments and presenting cases appropriately. That is how to speed up the process, not denying people the opportunity to make a case that can be made only on grounds of merit, as in the Minister's belt-and-braces proposal. We are talking about meritorious cases, not about people who are exercising some sort of delaying tactic.
I despair of this Minister, above all, because he never seems to listen to what people say in debates. He pointed out that new section 103A(4) would permit an application outside the specified period. That is true, but the grounds are very limited, involving reasonable practicability. An appeal cannot be made in the interests of justice. I happen to believe that the interests of justice ought to be paramount, but the amendment makes no reference to them. Appeals can be made only in the event of a specific practical problem that cannot be overcome.
§ Vera Baird (Redcar) (Lab)
I understand the hon. Gentleman's concern, but surely reasonable practicality is what Opposition Members have been talking about. If there is a change of lawyer, for instance, the question of whether it is reasonably practical for the new lawyer to submit the appeal on time is exactly what we should consider. The amendment hits the nail on the head.
§ Mr. Heath
All I can say is that I hope so, but I envisage circumstances in which it will not. We should bear in mind that we are dealing, potentially, with matters of life and death. I believe that we have a responsibility to ensure that the interests of justice are upheld in any circumstances on that basis.
Let me deal briefly with conditionality. All that I heard this evening about fees sounded very much like a conditional system by another name. There are some deeply imponderable proposals. There is, for example, the concept of the near miss. What if the client secures the right result—leave to remain—but by the wrong means? The lawyer, presumably, will be considered to have failed entirely, although he or she will have done the preparatory work, because the client no longer wishes to test the point of law on which an appeal would be held. The client now considers that he or she has secured his or her objective, which is to remain in the country safe from harm or persecution. Is that a near miss? It may not be a miss at all. The matter may not even come to court.
There is serious anxiety about the possibility that people will not be able to obtain the legal support that they need. I hold no brief for bad practitioners, but how many filters must the Government introduce before they can do the job of weeding out the bad practitioners, leaving those who are genuinely concerned for their clients and want to do a good job? We have the quality controls and the devolved powers that are available to the firms involved, but when there are no devolved powers, the Legal Services Commission will decide the merits of the case in the first place. Are we to suppose that the commission is incapable of deciding whether a case is meritorious? Will it be necessary to wait until the
1175 end of the proceedings to find out whether the lawyer contracted, in effect, by the commission will be paid? Who on earth would take a case on that basis? It is unfair to the applicant.
We have heard mention of the report from the Joint Committee on Human Rights, and it was pointed out earlierߞfrom a sedentary positionߞthat the Government had responded to its criticisms. I may be corrected, because I have only the briefest acquaintance with the Government's response, but I felt that they had answered some of the criticisms. In fact, I think that that was said explicitly. There did not, however, appear to be a section on clause 14, which we are discussing now. There were serious criticisms that the Government have not addressed. No doubt we shall have to address them, both here and in another place.
§ Rob Marris (Wolverhampton, South-West) (Lab)
I shall confine my remarks to amendments (a) and (b). I declare an interest: I am a member of the Law Society of England and Wales, although I have not practised law since I was elected three years ago because I do not believe in moonlighting.
Looking around the Chamber, I see a fair smattering of barristers and some solicitors. I would hazard a guess, although I stand to be corrected, that during my many years of practice I have issued and run more civil proceedings than anyone else present; and I must tell the Government that changing 10 working days to five strikes me as extraordinary. It suggests, for example, that a sole practitioner who is a solicitor is not entitled to go on holiday: such people would be deemed negligent, and could be sued for missing the deadline.
Since my election, I have written hundreds, if not thousands, of letters to Ministers. I do not recall ever receiving a written acknowledgement within 10 working days, let alone five. I have never received an answer that looked as if it had taken anything like six hours to draft. Ministers are not able to complete six hours of drafting in five working days, but they want those representing asylum applicants to do it. That seems extraordinary.
I urge both the Government and the Opposition to withdraw their amendments, and stick to the 10 working days proposed by the other place. I think that that is, in any event, a very short time.
§ Mr. Grieve
I can reassure the hon. Gentleman that I will not take an opportunity to put my amendments to the vote. I tabled them as a sort of tempter, in an attempt to entice the Minister to explain his obsession with five days and suggest an alternative. Clearly, however, if that is unacceptable to the Government, it is unacceptable to the Government.
§ Rob Marris
I will not comment further on that. Let me end by asking the Minister to assure us that his ministerial correspondence is answered within 10 working daysߞwhich is being generous to himߞand that all of it is answered within that time.
§ Annabelle Ewing
As many Members have pointed out, the clause has been greatly improved since Second Reading, Committee and Report, although I still have 1176 some concerns, not least that reconsideration will be handled by the same tribunal and that there is a lack of provision for oral submissions.
On the key outstanding issue, I find it quite incredible that the Government insist on a period of five working days. We are dealing with a right of appeal, which is much more important than mere administrative convenience. The Government have begun by making a series of unsound and unrealistic assumptions. As the hon. Member for Wolverhampton, South-West (Rob Marris) pointed out, the provision seems to take no account of the fact that the lawyer concerned might be a sole practitioner who is on holiday; nor does it take account of the practitioner's case load or of the possible complexity of a case. Citing repeatedly an average time of six hours is meaningless in a field such as law, in which each case must be dealt with as it comes and on its merits.
§ Annabelle Ewing
I have, but the point is that if one sets a deadline for appeal, it will be the norm; such discretion will, by definition, operate on a discretionary basis. I do not know why the Minister appears not to understand that basic point about our legal system.
This is a very important issue and as has been pointed out, the existing period of 10 working days is already a very short one within which to be required to bring an appeal. The other place will insist on this matter, and we will have to discuss it again. In the light of the clause's history, I expected the Minister to have learned a little humility, but he obviously has not.
I am pleased to note that the Bill's legal aid provisions do not seem to apply to Scotland. That is entirely proper, because the Scottish legal aid system is a matter for the Scottish Parliament. As I understand it, I have received an assurance from the Government that no hidden small print seeks to apply such provisions to Scotland, and I am very pleased that the Scottish Parliament will decide how to administer its legal aid system.
§ Vera Baird
How is the Scottish Parliament to decide whether there will be a way to allocate legal aid in time for an appeal, if, as the hon. Lady agrees, the time limit for an appeal must itself be very short? Surely the reason why such aid will be ex post facto legal aid is that there is no time beforehand for an independent examination of the merits. She does not have the escape clause that she fancies she has.
§ Annabelle Ewing
I was talking about the broad policy and the question of whether we in Scotland would wish to go down the road of a conditional, or "no win, no fee", legal aid system. Such policy will be decided not by this place but, quite properly, by the Scottish Parliament. [Interruption.] The hon. Member for Glasgow, Cathcart (Mr. Harris) says from a sedentary position that that is the consequence of devolution, and quite so, but the problem is that some 60-plus Sewel motions have delegated our legislation-making 1177 competence to Westminster. That is an important point, but I shall not go down that route tonight. The Minister will have heard my comments about the number of days, and I hope that the Government will show a little flexibility.
§ Mr. Marshall-Andrews
I am grateful for the opportunity to make a short and sad contribution to this short and sad debate. It is sad because I had looked forward to the unusual—indeed, unique—experience of offering my unalloyed and unadulterated congratulations to the Government. I had thought this an entirely appropriate moment to do so, not least because I expected the Chamber to be nearly empty. It is also a sad occasion because I have immeasurable respect for my hon. Friend the Minister, who, of course, did not have the burden of carrying this iniquitous Bill through its early stages. It would indeed have been a worthy occasion on which to congratulate him, as it is the first time that I have seen him on the Front Bench in his current role. Unhappily, I am unable to do so, and to explain why that is so, it is necessary to look back at the history of the Bill.
On Second Reading and on Report, we had a magnificent debate on what is an historic matter. Had the Government succeeded, it would have been the first time since the days of the Star Chamber that a public tribunal was relieved of the responsibility of judicial review. The debate had enormous historic undercurrents, and it was characterised by strong speeches in this Chamber and the usual vulgar abuse outside about wet liberalism versus authoritarian government. It was enormous fun because, as most of us realised, the Government were bound to give in; otherwise, they would have provoked the biggest constitutional crisis for 300 years. They were told as much when the Bill got to the House of Lords, and when they gave in, my noble Friend Lord Falconer also gave in with characteristic charm and emollience. Indeed, in doing so he found time to pay a little credit to the Back Benchers in this House who had attempted to assist him, for which we were enormously grateful.
So when I heard what Lord Falconer had to say, I looked forward to coming to this Chamber in order, on an historic note for me, to. congratulate the Government. Unhappily, that is not possible because of their amendment (a), which characteristically states:leave out '10 working' and insert '5'.It is, in truth, a miserable, snivelling little amendment that has no valid reason behind it. It is entirely meretricious, and it smacks of petulance. As all who know about the law realise, there will as a result of it virtually always be applications to extend the time limit. The burden on the tribunal and on lawyers will be immensely increased, rather than decreased.
The question of a five-day or 10-day limit is entirely arbitrary. When I asked the Minister, who was doing his best in the circumstances, what the perceived wisdom of the five-day limit was, the answer, I am afraid, was grossly unsatisfactory. He said that it does not give people the chance to shop around. The idea that an asylum seeker who cannot speak English and needs assistance can shop around in 10 working days but not in five is pure myopia, and the Minister knows it. This is a wholly arbitrary and unnecessary qualification. Ten 1178 days is too short a time limit, but one could have lived with it. A limit of five days is simply an attempt on the part of the Government to save a certain amount of face, and I am very sorry that they have chosen to do that.
Notwithstanding what I have said, I will support this measure, but I will not be able to go through the Lobby with that light skip in the step that I hoped to be able to employ. Unhappily, I shall go through with the more familiar leaden feet.
§ Vera Baird
I am sorry that my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) feels unable to let go and to congratulate the Government in the wholehearted way that I know he has been longing to do for many months, whenever possible. This measure is such a lot better than it first was that "congratulations" is the lowest point at which one can pitch one's approach to it. It is better not to be mealy mouthed, although no one could accuse my hon. and learned Friend of that: care, consideration and detailed conversations have helped to clarify this measure, which is now as good as it is going to get. There will be an independent appellate process, which is the most important thing; to be honest, time limits are much more of a minor-key issue. They will be applied where appropriate, via what I am satisfied is a tough merits test.
I am worried about the time limit of five days. To be honest, I cannot see why anyone is arguing about whether it should be five days or 10. There does not seem to be any principle to be found here. Surely 10 days is short enough, so what is the advantage of having five instead? I do not understand why the Government are sticking out for that.
I understand, although I do not especially care for, the allocation of legal aid ex post facto, but it seems to me that we cannot have one without the other, and if an appeal's time runs out in 10 days, there is no time for an application for legal aid to test the merits in the meantime. That is a funny idea, running in the opposite direction from other aspects of the legal system. The new criminal defence legislation says that criminal legal aid, currently awarded by the courts, will go instead to the Legal Services Commission, which is where the decisions under discussion are currently made. The Government are running contrary to the thread of what I consider a proper policy route.
However, there it is. We cannot really have time for an application for legal aid if we are going to have a very short appeal application time, so everyone must accept that if they want to be sweet about the one, they must be sweet about the other. I am sure that the judiciary will exercise the proper discretion and will understand which cases were worth bringing, even though they were not successful. I do not foresee great problems about that.
Frankly, lawyers such as myself—I should have declared an interest, although I did not do much in the way of asylum work until I was confronted with it as a constituency Member—will have to take the cases that they think in all conscience should be taken and simply get on with them, trusting that they can convince the courts after the event that they were right to do so—
1179 It being one and a quarter hours after the commencement of proceedings, MADAM DEPUTY SPEAKER proceeded to put the Questions necessary to dispose of the business to be concluded at that hour, pursuant to Order [this day].
Government amendments (a) to (g) to Lords amendment No. 28 agreed to.
Lords amendment No. 28, as amended, agreed to.
Government amendment (a) to Lords amendment No. 62 agreed to.
Lords amendment No. 62, as amended, agreed to.
Lords amendments Nos. 42 to 44 and 46 disagreed to.lb/> Government amendment (a) in lieu of Lords amendment No. 46 agreed to.
Lords amendment No. 61 disagreed to.
Government amendments (a) to (c) in lieu of Lords amendments Nos. 42 to 44 and 61 agreed to.
Lords amendments Nos. 29, 45 and 47 to 60 agreed to.
Lords amendment: No. 15.
Mr. Humfrey Matins (Woking) (Con)
I beg to move amendment (a) to the Lords amendment.
§ Madam Deputy Speaker (Sylvia Heal)
With this we may consider amendments (b), (c) and (e) to the Lords amendment.
The first three amendments are essentially probing, but I shall seek to divide the House on amendment (e), on prescribing the circumstances that constitute a breach of a requirement to participate in community activities, if the Government are not prepared to accept it.
The new clauses inserted by the Government in another place are broadly welcome, because any reasonable person would support the proposition that people should, where they are able, give something back to the community that has been supporting them. Having offered general support, I shall be a little unkind and say to the Government that I am disappointed and disillusioned by the approach that they have taken in introducing changes so late in the proceedings. There has been no meaningful consultation and not one of these new provisions has ever been debated in this Chamber, in Committee or on Report.
It is worth remembering that we started the Committee stage on 8 January. At that stage, the Bill was about 25 to 28 clauses long, and it has now almost doubled in size to 50. Many hon. Members of all parties—I see the hon. Members for Glasgow, Cathcart (Mr. Harris) and for Walthamstow (Mr. Gerrard) here today—would have welcomed the chance to debate these provisions in Committee.
In the other place, my noble Friend Baroness Anelay referred to a "torrent" of new clauses and policies being made up on the hoof. Today, we have about two and a quarter hours to debate up to seven major new add-ons 1180 to the Bill. It is a pity that we have so little time. Lord Rooker said that the Commonswill have adequate time—rightly so, because when the Bill goes back it will have a substantial chunk of amendments sent from the Committee here. There has to be proper scrutiny in the other place."—[Official Report, House of Lords, 15 June 2004; Vol. 662, c. 650.]He was right. There will not be enough time properly to scrutinise the clause particularly in relation to the provision of accommodation being dependent on work done.
I do not expect the Government to apologise, but I hope that they will be able to give us some reason as to why these major new policies were not in their heads last December, when they could have been put into the Bill for Second Reading; in January this year, when the Bill went into Committee or at Report stage.
Although we offer a broad welcome to the principle behind the clause, I turn now to my amendments, which are essentially probing. Amendments (a) and (b) would require the Government to consult a wide range of bodies before introducing the provision on work being linked to the right to accommodation. Amendment (b) lists those bodies—they include Citizens Advice and others of some importance. Some are relevant because of their experience in the refugee world—for example, the Immigration Advisory Service and the Refugee Council. Some are particularly relevant to the issue of work in the community—that is why I included the probation service, which runs what are now called community punishment orders and were hitherto called community service orders. Some have useful knowledge about specific work that would benefit a community in which the asylum seeker lives—I refer to the Local Government Association. I do not think that the Government had a prolonged period of consultation with any of those organisations; if they did, I must have missed it. Why not, and will they undertake, even at this late stage, to do so?
Amendment (c) would require the Government to explain exactly how they propose to link accommodation with work. I am not clear what they mean by subsection (b) of the clause, which says that regulations mayprovide for the continuation of the provision of accommodation to be subject to other conditions".That is extremely vague.
The most important amendment, by which I should like to test the opinion of the House, is amendment (e). The general sense of the clause is that the Government will require some failed asylum seekers to undertake some community work or activity as a condition of keeping their accommodation. What will happen if he fails to do the work, fails to do it properly or does not turn up? In the criminal justice world, criteria would be in place to judge what constitutes, for example, failure on the part of a person who is subject to a community service order. In this case, however, if a Home Office official takes the view that the person is not complying properly with the work that they have been asked to do, he can take their accommodation away. Can that possibly be right? If so, it is a somewhat sorry state of affairs.
Amendment (e) would require the Government to prescribe the circumstances that would constitute a breach of a requirement to participate in community 1181 activities. If they are unable to include that in the Bill, they could provide for the making of regulations. But here we are, at the eleventh hour, with the whole House of Commons potentially present for the debate—I say "potentially", because it is always a pleasure to speak to a packed House—and we still do not know. The amendment would remedy that.
6.45 pm How many failed asylum seekers will be covered by the provision? As I understand it, they will be those who are here because they cannot reasonably be removed from the country. Can the Minister tell us not only how many he thinks there are, but which countries they have come from? The Government cannot readily or properly remove many of those who fail in their asylum claim. Zimbabwe is a case in point. In the early part of 2003, the Government suspended removals to Zimbabwe. I thank them for doing so because the situation there rendered it unsatisfactory for people to return to that country.
§ Mr. Gerrard
I believe that the people involved would be those who are now described as receiving National Asylum Support Service hard case support. The question is not so much that of how many failed asylum seekers from such countries are not being returned, but of how many apply for and get hard case support. All the figures that I have seen suggest that their numbers are quite small, and that many of those who might be eligible for that support either do not apply for it or are refused.
§ Mr. Malins
The hon. Gentleman. whose expertise in such matters is well known and well respected by the whole House, suggests that we are talking about failed asylum seekers in receipt of hard case support. I understand that. However, if we were in Committee and had plenty of time, the Minister would be asked to deal with the whole scenario of failed asylum seekers who cannot be removed and the duties that are placed on them. The purpose of the debate is to try to draw out some of the Government's reasoning—for example, would those who are not in receipt of hard case support be exempt from the provisions, and if so, why? When the issue of failed asylum seekers who cannot properly be removed cropped up in the other place, questions were put to Ministers about their position, as is proper.
Of course, the Government face difficulties in removing failed asylum seekers to Iraq and to Afghanistan; they sometimes, but not always, go on the assisted voluntary return package. There are sometimes difficulties in returning Somalis. As the Minister has acknowledged, and as a recent parliamentary question revealed, there are difficulties in removing people to China. The same is true of Iran, despite the fact that that country is a signatory to the Chicago convention. The position is not easy.
It was said in the other place that only a few hundred people are relevant to the clause. However, given that this is the last opportunity that this House will have to consider the clause, which was never debated in Committee, it would be helpful if the Minister clarified the numbers involved.
§ Jeremy Corbyn (Islington, North) (Lab)
It is not just a question of the numbers—of whether it is 10, 500, or 1182 whatever—because an important principle is involved. If people who are not allowed to work legally are to be forced to work in a voluntary capacity to carry out unspecified tasks, that is surely a step that has never been taken before.
§ Mr. Malins
I take the hon. Gentleman's point, and indeed I was going to make it myself in my own way—although perhaps not so effectively—in a moment. I suppose that the issue of the numbers was the first point, if not the most important, that occurred to me. There are more important points of principle, to which I will come in a moment. Surely what we are talking about is a system of directed labour for those who have not been before our courts and convicted of a criminal offence, and for whom the penalty of failing to comply with the work order—the directed labour—is loss of accommodation. That is a serious matter. They are being told, "Do the work, otherwise you'll lose your accommodation."
§ Mr. Tom Harris (Glasgow, Cathcart) (Lab)
The hon. Gentleman is right to say that such individuals have committed no criminal offence, but does he agree that, as failed asylum seekers—illegal immigrants, in other words—they are outwith the law by being in the country at all?
§ Mr. Malins
I understand that we are talking about failed asylum seekers in receipt of hard case support, but the important principle is that we are telling people to do the work or lose their accommodation. I do not know whether any other EU country has that system; I would be glad if the Minister told me.
As I mentioned in relation to the amendment on which I want to test the House's opinion, I do not see any criteria in the Bill for judging whether the work has been done properly and efficiently. Also, who on earth is to make that judgment? That troubles me a bit, because I do not feel particularly easy with a situation in which a Home Official can say, "Go and do this, and do it on Monday, Tuesday and Wednesday." There is nothing in the Bill about how often the work has to be done—or indeed where. There has been some reference in debate to the fact that it might be done locally, but, equally, Lord Rooker said, as reported in Hansard, that it might have to be done in another area. I do not feel particularly easy about the fact that when there is a decision as to whether someone loses their accommodation because they do not do the work properly—says an official—that decision is made by an official against whom there is apparently no right of appeal to any judicial person.
What has the Minister got to say about the report of the Joint Committee on Human Rights, published only about a week ago? We are talking about a Joint Committee involving, I would say, leading members of all parties, including the Government party. The Minister will know that that Committee was unanimously scathing about the Government's approach to this and other clauses. It concluded that there is a significant risk that making the provision of accommodation to failed asylum seekers conditional on the performance of community work would be in breach of the prohibition of "forced or compulsory labour" in paragraph 2 of article 4 of the European convention on human rights.
1183 In the other place, Lord Rooker said—I do not quote him exactly, but give the gist of what he said—that, if he were an Opposition Member, he would be absolutely furious if there was not a full Government response to the Joint Committee's report in time for this debate. I mentioned in my point of order that he, as a Minister, said in terms that there was a prospect of the Government's treatment of the House of Lords being one of contempt.
The Government have, I think, responded by letter—I have not had chance to digest it fully—in relation to the Human Rights Act 1998 point on whether there is breach of paragraph 2 of article 4 of the European convention on human rights. My understanding is that the lawyers advising the Joint Committee say that there was a significant risk of a breach, but that the Government take the view that that is not the case. Let me ask the Government this: who are the lawyers who advise the Joint Committee and what is their standard of advice? Are they right or wrong? Who are the lawyers who advise the Government and are they right or wrong? What chance does the House really have today to consider the position in respect of a possible breach under paragraph 2 of article 4? Let us hear from the Government on that point in due course, please.
Let us also hear from the Government about the work that these—to some extent unfortunate—people will have to undertake. Who will select the work? What kind of work will it be, and who will monitor it? Who will enforce attendance? What will the cost be and is there a maximum period for which they will have to do the work?
As I have mentioned, the nearest parallel in the criminal justice system is what used to be the community service order, now called the community punishment order, under which a court can tell a convicted defendant to perform unpaid work for the benefit of the community for a minimum of 40 hours and a maximum of, I think, 240 hours. That order is administered and supervised by the probation service. If the probation service thinks that there has been a breach, it brings the matter back before the court, which has to make a determination on the point. I want to learn from the Government exactly what the parallel points are with the scheme that they suggest.
I have a feeling that the proposal to make failed asylum seekers work as a condition of their accommodation may not really involve anything worth doing; I think that the work might just be something to do. I do not see that there will necessarily be huge benefits, and I am concerned about the costs. Anyway, we have not yet heard what the costs of the procedure will be. I do not know whether the Government think that the failed asylum seekers in question will have the skills to do the work that they are required to do. Let the Government tell us exactly what that work will be.
I have been trying to calculate what the cost might be of putting a failed asylum seeker in receipt of hard case support through the work programme. I simply do not have the resources available to find out whether it will be expensive, but I was able to do a little research on the community punishment order. According to the London probation service website, the average cost for 1184 a community punishment order is £1,500 per defendant. Those figures, incidentally, do not tally with the information that the Government gave about a week ago, when Baroness Scotland explained that the average cost of a 40-hour community punishment order—the minimum duration—is £706. However, we are confused about costs because a costing exercise undertaken in 2002–03 with local probation boards suggested that the average length of a community punishment order is 116½ hours and the average cost is £2,005.
For how long would someone be required to do the work? Would it be weeks or months? With what frequency would they be required to work? The Minister has a duty to tell us a bit more about the proposal. How many hours a week would be involved? Has he any idea? Does he feel able to tell us about the expense involved in the scheme?
Those are important questions and I hope that others in the House will want to ask questions of the Minister. As I said at the beginning of my remarks, one cannot have an objection in principle to the idea of people putting something back into a community in respect of what they are taking from it. Nevertheless, all of us should try to scrutinise the legislation carefully.
I conclude my remarks on that note. I have posed many questions, which I hope the Minister will be able to answer in the course of the debate. I hope that he will take on board with acclamation the various amendments that I tabled, and in particular that he will give an absolute commitment to the House that my amendment (e) will be accepted by the Government and incorporated into the Bill forthwith; otherwise it will be necessary to test the opinion of the House.
§ The Minister for Citizenship and Immigration (Mr. Desmond Browne)
In my remarks I shall endeavour to deal with the issues raised by the hon. Member for Woking (Mr. Malins) and to anticipate some of the matters that might be raised by right hon. and hon. Members, such as the report of the Joint Committee on Human Rights.
I should say at the outset, and it will come as no surprise to anyone, that the Government agree with the Lords in amendment No. 15 and disagree with amendments (a) to (e). That may mean that we need to divide at some stage this evening, but that would surprise me, given that when the matter was discussed in the other place, Baroness Scotland wrote to Baroness Anelay on 2 July explaining in some detail our views on the issues raised by amendment (e) on withdrawal of support. As a result, Baroness Anelay subsequently withdrew her amendment on Third Reading in the Lords. But I suppose that what the Opposition do in this House need not necessarily be consistent with what they do in another place.
As the hon. Member for Woking rightly identified, new clause 15 enables the Secretary of State to make regulations specifying additional criteria to be used in determining whether to provide, or continue to provide, accommodation to failed asylum seekers under section 4 of the Immigration and Asylum Act 1999. The House will be aware that that is commonly referred to as hard case support.
1185 It is important to state at the outset of my contribution that hard case support is available by and large to single failed asylum seekers who have come to the end of the asylum process, including any appeal, and have had their claim finally rejected. Other than a handful of cases—for example, where a mother has given birth shortly after existing support has ceased—families will not be in receipt of section 4 support. I shall come to that in more detail later. It would be helpful if we did not have hon. Members creating the spectre of families being subjected even to such limited conditionality, which I do not believe can be described in the extravagant way in which it has been described by others.
§ Mr. Oaten
Perhaps we can clarify that once and for all. I interpret the Minister's remarks to mean that individuals who have to look after a child would not be forced to work as part of those conditions. He says it is unlikely that they would apply to individuals in that category, but can he state that even if people fell within that category, they would not have to work?
§ Mr. Browne
We are told that time for debate is limited and I am reluctant to repeat what I have already said. I made it perfectly clear that hard case support is available to single failed asylum seekers, and other than a handful of cases—for example, where a mother has given birth shortly after existing support has ceased and she has already been in receipt of section 4 support—families will not be in receipt of section 4 support. So they do not come into the category of people to whom the conditionality applies. I am sure the hon. Gentleman understands the provisions of the existing support, and I do not propose to take any more time by explaining them. From the lack of reaction of other and very knowledgeable Members, I suspect they understand the distinction.
There are already conditions attached to the provision of hard case support; it does not come on its own. For example, failed asylum seekers must continue to co-operate with efforts to return them to their country of origin. The conditions are set out clearly in policy bulletins published by the National Asylum Support Service and we now advise failed asylum seekers routinely of the availability of section 4 support.
It may be appropriate to give the House some sense of the scale of the proposals and the number of people who will be affected, which I have been asked directly and indirectly. Since January 2004 there have been in total 945 applications for section 4 support, and there are currently fewer than 500 people receiving section 4 support. It is not to be concludes from that, as some people do in this area of policy, that half the applications were refused. I have no idea how many applications were refused, but there are fewer than 500 people receiving the support at present.
I was asked which countries those people come from. They come from a wide range of countries—including the countries identified by the hon. Member for Woking—where there are difficulties, particularly in re-documenting citizens of those countries for return. However, the key point about the provisions is not the countries that people come from, but how the provisions relate to the individual circumstances. I repeat that we 1186 routinely advise failed asylum seekers of the availability of section 4 support. There is no reluctance to give that support to people who are entitled to it.
The new clause allows regulations to make the continuation of hard case support dependent upon a person's performing or participating in community activities; to place the existing criteria for provision of such support on a statutory footing; and to provide for a right of appeal to the asylum support adjudicator against a decision not to provide support or against termination of support under section 4.
§ Jeremy Corbyn
Does my hon. Friend have any estimate of the number of people who might be eligible for hard case support but do not wish to participate in putative removal, so simply disappear? Has he any estimate of the costs of administering a system that will apparently apply to a maximum of 500 people?
§ Mr. Browne
My hon. Friend pointed out in an earlier intervention—not on me—that there is a point of principle involved. That will presumably be the focus of the bulk of his contribution to the debate. The matter is as much a point of principle for the Government as it is for others who seek to adopt other principles in relation to it. I shall refer to that later. The principle was established in this context for reasons other than numerical reasons.
To answer my hon. Friend's first point—I think he was making a rhetorical debating point, rather than expecting a detailed answer from me—without examining the individual circumstances of all failed asylum seekers, I am not in a position to know whether they qualify for section 4 support. That depends on their applications and the processing of those applications, so I cannot give him the figures. If he wants to know how many people fail in their application for asylum, those figures are available and are published quarterly.
§ Mr. Gerrard
I understand my hon. Friend's point that from the Government's viewpoint, this is a matter of principle, but if we are setting up systems, do we not want them to provide value for the money to be spent on them? Is it implied that people in receipt of hard case support will be required to go to certain places to live? If they are scattered across the country through dispersal, the system will become an administrative nightmare to operate and ineffective in terms of return for the cost.
§ Mr. Browne
My hon. Friend makes an important point. In the course of my contribution, which is designed to be as comprehensive as it can be given all the circumstances, I hope to address all the points that he makes. He ought not to, and I do not believe he does, accidentally lead the House to believe that those who are already on section 4 support decide where they will go. They do not.
§ Mr. Browne
I am grateful for my hon. Friend's agreement to that. Recipients of the support do not decide where they will go. It is a directive process. People in receipt of that support are required to live in certain accommodation and to that extent there will be no 1187 difference. My hon. Friend is right, however, to suggest that this part of the process involves public money and will be required to give value for money. Value for money can be judged in a number of ways, and I hope that when he hears everything that I have to say, he will be persuaded that this process will be fair to everyone including the taxpayers of the United Kingdom, and that it will not make unreasonable demands on people who have been given support—which some people might say they were not entitled to, although I am not saying that—when they have reached the end of the process. Many of those people could return voluntarily to their country in different circumstances, and they should give something back in return for that support.
Let me develop these arguments in the order in which I have laid them out, rather than jumping back and forth, in the hope that I can cover the points that have been raised by various hon. Members and persuade them of the appropriateness of this policy.
The Government need to explain the rationale behind these provisions, and I agree with the hon. Member for Woking that it is not ideal to introduce substantive amendments to a Bill at a late stage. In my experience of the United Kingdom Parliament, however, it is not unknown. I have watched legislation being introduced here for many years, and the introduction of amendments at a late stage is not ideal but it happens a lot and for a variety of purposes. Having done that on this occasion, however, the Government did something relatively unusual, in that we offered the new measures for consideration in the other place on recommitment. Indeed, they were debated extensively in Committee, on Report and on Third Reading there. It is also our intention that they will be subject to further consultation before regulations are introduced, and that the regulations will be introduced using the affirmative resolution procedure.
We remain committed to the principle of offering support under section 4 to failed asylum seekers who, for certain specified reasons, are not immediately in a position to leave the UK. For example, if a person cannot return home because there is no viable route, and provided that they are complying with re-documentation procedures and co-operating with efforts to help them to return voluntarily, we should in the interim be prepared to give them support to insure against destitution. However, we believe that it is right to require persons in receipt of state support to give something back to the community in return for their board and lodging. We have made it absolutely clear that we do not see this as a punishment, and it is unhelpful for people to cite analogies relating to punishments delivered by the criminal courts. This is about a person occupying himself or herself—it will mostly be himself—usefully and not expecting to receive something for nothing.
Proposed new subsection (6)(a) therefore provides that the regulations made under the section may include a requirement for receipt of support to be conditional on a person performing or participating in community activities. Community activities are defined as activities that appear to the Secretary of State to be beneficial to the public, or to a section of the public. Tackling the 1188 culture of "something for nothing" runs through Government policy—the new deal is a prime example—but that may manifest itself in different ways.
Failed asylum seekers in receipt of support under section 4 are in a different position from UK citizens. As my hon. Friend the Member for Glasgow, Cathcart (Mr. Harris) pointed out, they are not entitled to remain here permanently and will at some point return home, even if they are unable to do so immediately. However, in one sense, the requirement for them to give back to the community that supports them is even clearer than it is for other people. Their asylum claim has failed and they have no right to remain in the UK. If they are then to receive state support during this period—for example, while they co-operate with efforts to arrange their return—we need to ask what is the best way for them to give something back to the community that is supporting them. We believe that the best way is for them to engage in activities for the benefit of the community in which they are staying.
§ Mr. Browne
I shall allow both interventions in a minute.
The Government believe that it is essential for continuing social cohesion that the public have confidence in the asylum system. The UK must continue to offer sanctuary to those who have a well-founded fear of persecution. However, both social cohesion and public support for our international obligations can be undermined when failed asylum seekers—those who by definition have no right to remain in the United Kingdom—are receiving state support while giving nothing back. If hon. Members are in any doubt about that, they should see my postbag on the subject.
It is true that, generally speaking, hard case support is available only as an interim measure when return is not immediately possible. However, there is a real danger that public concern about state support continuing to be offered to failed asylum seekers who have no right to remain in the UK could fuel misconceptions and prejudices about other asylum and immigration issues, which could have adverse effects on social cohesion in particular communities. To maintain confidence in the system, and to protect social cohesion at local level, taxpayers need to be satisfied that those receiving state support acknowledge the cost to others and the attendant responsibilities that are placed on them. By participating in community activities, failed asylum seekers will be occupying themselves purposefully. This will reduce the potential for tension that could otherwise surface.
§ Jeremy Corbyn
I have a number of asylum seekers in my constituency whose application has failed, and who are hard cases who cannot be returned to the country from which they came. They would like to go back but it is simply not safe for them to do so, and they want to work while they are here. They want to get a job and contribute through taxation, and to live a normal, 1189 respectable life in our society. I cannot understand why we do not allow that, rather than developing a whole new bureaucracy to make people work for nothing.
§ Mr. Browne
I shall come specifically to my hon. Friend's point in due course. We need to answer the question why these people are not allowed to work in the labour market, and I shall seek to do so, but not at this stage of my argument. I give way to the hon. Member for Winchester (Mr. Oaten).
§ Mr. Harris
At the risk of asking the Minister to repeat himself, can he confirm that only those in receipt of section 4 payments under the 1999 Act will be eligible for this so-called work-for-accommodation scheme? Can he also confirm that nobody who has been refused asylum and who has a safe route of return to their original country—for example, Turkey or Kosovo—will be eligible under this scheme?
§ Mr. Browne
There might be some misunderstanding of these arguments beyond these four walls, but I do not think that there is any doubt in the Chamber as to exactly who we are talking about here. The obligations placed on those who have a safe route of return and whose asylum application has failed are entirely different from those placed on people who have no safe route of return or cannot be re-documented, but who are co-operating. The arguments about social cohesion are vital when considering the value for money of a scheme of this nature. The benefits of social cohesion are not easily quantifiable, but they are nevertheless enormously important and must not be overlooked.
I think that this is chronologically the right point at which to turn to the Opposition amendments. Amendments (a) and (b) would require the Secretary of State to consult seven specific organisations before making regulations. We have already agreed with the view expressed in another place that we should consult widely before laying regulations, rut we do not consider that the amendments are necessary. I do not see the added value of a statutory requirement to consult the groups specified. There are likely to be a number of other organisations whose views will be helpful to us, and I would be reluctant to set out on the face of the Bill the names of particular organisations without a more detailed assessment of the criteria for so doing. There are many bodies whose expertise we can utilise, including refugee organisations, those responsible for volunteering and those operating the new deal. In respect of the latter, the context is of course very different, but there are clearly lessons that we can learn about structure and organisation. That is what I am referring to here.
We need to be flexible in the way m which we consult. We have to take account of the fact that the number of people in receipt of hard case support can vary, and that there are different numbers in different parts of the 1190 country. I do not therefore envisage one structure being applicable in all areas. Furthermore, the clause enables us to roll out the provisions in different areas at different times so we can assess, if need be, how the scheme is working with one type of structure in a particular area before applying it beyond that area. We also need to be flexible in terms of the ways in which failed asylum seekers are able to fulfil the requirement to contribute. Again, we hope to benefit from consulting refugee organisations and non-governmental organisations, in terms of building a framework in which failed asylum seekers can contribute in ways that reflect any specific skills that they might have—making it more fulfilling for them and more productive for the community.
At present, the central case is that we anticipate the community activity being carried out in the immediate environment of someone receiving support. It might involve contributing to the upkeep or maintenance of their own accommodation, for example. We will also consider work on facilities that are close to their accommodation—facilities that may be used by the failed asylum seekers themselves. In short, the local community will see that failed asylum seekers are putting something back into their immediate environment, and the failed asylum seekers will be occupying themselves purposefully during the time that they are supported.
I want now to deal with the report of the Joint Committee on Human Rights, published on 5 July, which engages specifically with the issue of forced labour.
§ Mr. Malins
Could the Minister provide us—he has not told us so far—with examples of the sort of work that would be expected? He has not given us an example or told us about the frequency with which the work would have to be done. Also, who would decide on a breach and what would constitute a breach? Who would determine whether support should be withdrawn? Those matters have not been fleshed out either here or in the other place.
§ Mr. Browne
They will be fleshed out during the consultation and under the regulations pertaining to this part of the Bill. [Interruption.] They will, and we will proceed on the basis of positive resolution. Although I have gone to some lengths to stress that I want a degree of flexibility in developing the policy further, I can say that I have in mind about 15 to 20 hours a week, or thereabouts. I have given generic and descriptive examples of the sort of activity that is intended, and at this stage I do not want to be any more specific than that.
Let me turn to the issue of forced labour. First, I responded in some detail in an 11-page letter to the valuable and helpful report produced by the Joint Committee on Human Rights. I say that it is valuable and helpful, but it does set the Government some difficulties in respect of explanation. It was, of course, precisely on account of such difficulties that the Joint Committee on Human Rights was formed. As one of the original members of that Committee, I am proud of the work that it has since done—including during the time when I was not a member.
In response to those who understand that report, may I say that we accept that article 4(2) of the European convention on human rights, which states that no one 1191 shall be required to perform forced or compulsory labour, must be interpreted in the light of the International Labour Organisation definition, according to which forced labour isall work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily"?However, we simply do not accept that this scheme is exacting worker service under the menace of a "penalty" within the meaning of that definition. Engaging in community activity is not a penalty; it is the contribution that a person is expected to make in return for assistance from the state.
In any event, as the Joint Committee on Human Rights has identified, it is clear from past judgments of the European Court of Human Rights that what constitutes "forced or compulsory labour" is determined by whether the obligation is "unjust or oppressive". We do not accept that requiring failed asylum seekers to carry out the sorts of activities that are envisaged is unjust or oppressive. It is not unjust. In fact, it is quite the opposite to say that, if people are being supported by society, they must be prepared, if only to a limited degree, to give something back; and it is not oppressive to expect people to contribute by performing or participating in community activities, particularly when those activities relate to the environment in which they themselves live.
§ Mr. Browne
I shall come on to that as I develop my arguments, but I am grateful to the hon. Gentleman for his recognition that some of the more extravagant ways of describing what the Government are trying to do here do not apply. I am grateful for his implied concession that this sort of activity could not be described as forced labour.
I reiterate that this requirement is not a punishment. It forms part of a wider policy of encouraging the ethos of "something for something" and encouraging people to be active contributors to the community in which they live, rather than just seeing it—or, more importantly, being seen to do so—as a resource to be drawn down from. Participation in community activities is merely another way in which someone gives something back to society in return for society giving something to them—a long-held principle of social provision in this country. We consider that to require some contribution of failed asylum seekers along the lines proposed does not go beyond what could readily be characterised as a normal and entirely reasonable obligation, so it does not fall within the scope of article 4(2).
In fact, I do not think that we should automatically assume, as some have, that the measure will be entirely unwelcome. Some have assumed that, since many in this group—failed asylum seekers seeking section 4 1192 support—will, by definition, shortly be leaving the UK, they will have no interest in benefiting the community by participating in such activities. However, I know that the point has already been made forcefully in the other place that they surely do have an interest in occupying themselves purposefully while they remain here.
As I have already indicated, there will be a deal of flexibility in the way that failed asylum seekers are able to fulfil the obligation to contribute, and we will be consulting refugee groups on how to provide opportunities that utilise the specific skills that failed asylum seekers might have, such that the work that they do will be both more fulfilling for them and more productive for the community. Of course, the fundamental point is that, if the taxpayer is prepared to pay for their board and lodging during this period, it is right that something be given in return. I see no reason why that principle should not be respected. I assure hon. Members that I am coming on to deal with withdrawal of support.
§ Mr. Malins
Before moving on from the Joint Committee report, will the Minister tell us who advised the Committee that there was a significant risk of a breach of human rights provisions? Who advised the Government that they were wrong?
§ Mr. Browne
The hon. Gentleman knows fine well that the Government do not reveal their sources or the content of their legal advice. He has been fingering a copy of the Joint Committee report for some time. If he looks through it, he will see that the staff of the Committee, including specialists and others, are free to take advice from any source that they want. I know that when I was a member of the Committee, it took standing advice from an eminent academic lawyer in the field of human rights, and I suspect that it still has such advice.
It is not for me to identify the source, however. Those who have the report can read it for themselves. [Interruption.] I practised law for 25 years before I came to this place and I practised much litigation in the courts, as an advocate and solicitor, without having to resort to accusing people who were arguing a different point of view from mine of being wrong. Lawyers are well able to argue their position and tell others to decide which position they prefer. In this place, too, we do not resort in the main to that sort of argumentation. There are different points of view here. The Government have a point of view. The Joint Committee on Human Rights has a point of view—and there is continuing dialogue between the Government and that Committee. The Government put their position forward and, ultimately, this place is the court of decision and those who go through the Division Lobbies are the judges.
§ Jeremy Corbyn
A few minutes ago, the Minister mentioned the International Labour Organisation conventions. In the consultation exercise, will he consult the ILO, and if its opinion is that what the Government are doing is outwith its declarations, will the Government decide not to proceed to regulate?
§ Mr. Browne
It is not my intention to consult the ILO, but I have not yet decided exactly whom the Government will consult, although there will be extensive consultation.
1193 To get back to the withdrawal of support, amendment (e) would insert a provision for the Secretary of State to prescribe the circumstances that constitute a breach of a requirement to participate in community activities. Again, as I said, that was discussed in another place and correspondence passed between Baroness Scotland and myself in which we set out the procedure we envisage before support is withdrawn.
We do not consider that the amendment is necessary. The new clause already allows the Secretary of State to set out in regulations the circumstances in which failure to comply with a condition of support under section 4 would lead to termination of support, which clearly passed the hon. Member for Woking by when he compiled his remarks. We have spelled out how we envisage the process working before support is withdrawn.
It is important to stress that we are not looking for ways to make people destitute. If we believe it appropriate, a failed asylum seeker will be issued with a warning and reminded of the requirement to perform community activities as a condition of receiving support and reminded of the consequences of failing to do so. Failure to participate again after the warning will lead to termination of support unless. of course, there is a reasonable excuse for not participating again. We will clearly need to consider all the circumstances of individual cases, but I hope that it is clear that we are not looking to terminate support automatically without first assessing the reasons for a failure to comply.
I should emphasise again that people who are unable to participate in community activity will not be required to do so. It follows, therefore, that if a person's circumstances change, or if he is unwell, we would review whether he should be expected to continue the activity. We would not terminate support without first having examined fully the reason; for a person's failing to comply with the conditions. These basic principles will be provided for in greater detail in the regulations made under amended section 4, specifically under the regulation-making power contained in new subsection (5).
The new clause also provides for a new right of appeal to the asylum support adjudicator against a decision by the Secretary of State to terminate support and against a decision by the Secretary of State not to provide support in the first place. That is an important safeguard, making our overall approach to support under section 4 more robust.
My hon. Friend the Member for Islington, North (Jeremy Corbyn) asked why we do not just let these people work. There is a clear answer to that. It is imperative that we maintain the distinction between immigration and asylum. People who want to come and work in the UK can do so provided that they qualify for entry under one of the managed migration routes designed for that purpose. It is simply wrong to blur the boundaries between immigration and asylum. It risks confusing in the public eye two utterly distinct policies with completely different aims. The very people who argue that we should do that for this purpose also argue that the tabloid press should not be allowed to do it for their purposes.
Confusing the two policies is unfair to genuine economic migrants, who have to satisfy strict conditions and have no recourse to the support that is offered to 1194 asylum seekers. It encourages people who are, in fact, economic migrants to enter unfounded asylum claims, knowing that they will be able to combine such a claim with continuing to work as long as they remain in the country. That would clog up the asylum system to the detriment of genuine refugees, placing an unfair burden on the taxpayer and undermining social cohesion. The Government will do nothing that has that consequence.
Those urging a different approach might also want to consider the practicalities. By definition, members of the group will return to their own countries. It is not obvious that it is helpful to them or to potential employers for them to be encouraged to find paid employment.
I want to add a brief word on the rest of the new clause and, in particular, on amendment (c), which would remove new subsection (6)(b). The subsection enables the Secretary of State to provide for the continuation of the provision of accommodation to be subject to conditions other than the requirement to perform community activities, which is referred to in new subsection (6)(a). The intention is that the Secretary of State sets out in regulations the existing criteria, which I referred to earlier, under which section 4 support is provided.
It is right to place the existing conditions for section 4 support on a statutory basis. At the moment, to qualify for, and continue to qualify for, support under section 4, individuals must have been supported by the National Asylum Support Service or a local authority, have exhausted their rights of appeal, be destitute and have no other avenue of support. They must then have fulfilled one of the five eligibility criteria, which are that the failed asylum seeker must have been given permission to proceed with a judicial review of the decision to refuse asylum, must have been unable to leave because no viable route of return is available, must have been complying with arrangements to obtain a travel document, or must have been unable to leave the UK because of illness or late pregnancy; or there must otherwise have been wholly exceptional or compassionate circumstances. The conditions will be spelled out in the regulations themselves, which, as I have explained, will have been the product of consultation and made subject to the affirmative resolution procedure. We cannot agree, therefore, that amendment (c) is necessary.
In summary, people in receipt of support under section 4 have no right to remain in the UK. We support them while arrangements are made for their return or if it is not possible for them to return home because of circumstances generally outside their control. However, we and they must recognise that there is a cost to the taxpayer for providing that support. Those failed asylum seekers who can participate in community activities need to recognise that they should contribute to the cost by giving something in return while they are waiting to return home.
I was asked whether other countries do the same thing. Some require asylum seekers to get involved in activities in, for example, reception centres, so the requirement is not unusual. The Government view it as a fair and reasonable requirement, an important reinforcement to the clarity and fairness of the overall asylum system, and an important part of our overall approach to social cohesion.
1195 People rightly want reassurance that asylum is being managed properly. The measures in the Bill, building on our success in reducing the number of asylum applications by more than 60 per cent. over the past 18 months, are all helping to achieve that. Requiring people whose asylum claims have failed to give something back to society while it is supporting them is an important and not unreasonable part of this overall strategy.
§ Mr. Oaten
The new clause and amendments to it involve some principles. The Minister has done a pretty convincing job in laying out the Government's view that as we live in a culture in which people do not get something unless they give something back in return, the new clause is needed to ensure that the public see that the individuals concerned are working for the benefit that they receive. That is an important principle. It breaks into slightly new ground, in that if the Government establish that concept for a range of groups, they are going in a clear direction, and they have been up front and open about that.
In considering the Government's reasons and arguments in relation to the questions raised by the Joint Committee on Human Rights, it is interesting to note that they address few of the issues on possible breaches of human rights, but talk an awful lot—the Minister has said this endlessly—about the essential need of having the provision in place for social cohesion, so that the public have confidence in the immigration and asylum system. My nervousness is this: why the public need to have that confidence—why the Minister is worried about the breakdown in social cohesion—is a result of some of the tabloid nonsense that we have seen over the past two or three years. The danger is that the Minister could be open to the accusation that by introducing the measure, the Government are pandering to that rather than taking it on directly in a way that I would like to see them do more often.
I understand entirely the Minister's arguments, but in a less reasonable manner—perhaps outside the Chamber—I can hear individuals saying, "Yeah, that's right, and we're going to tell these people they've got to go out and work, rather than getting their benefits." It is that kind of debate and dialogue that I am uneasy about, although on other occasions I have wanted the Government take on some of the nonsense that is talked about in the tabloid press.
§ Mr. Browne
I am grateful to the hon. Gentleman for his words and for his challenge to me and the Government to explain our policy on immigration and asylum in greater detail than we have done so far since the publication of the White Paper. I would be grateful for his support on that, but we cannot wait to do the right thing on the structure for asylum support until we have changed the minds of certain tabloid newspapers. It is not possible for us to do that.
§ Mr. Oaten
That is a fascinating response, and we are probably straying way beyond the amendment. It is almost a chicken and egg argument. If the Minister is saying that by putting the measures in place, which I could describe as slightly draconian, he can neutralise 1196 the tabloid press and ultimately turn public support around, then I understand his point. It is right that I put on record concern about the danger of going down that route. The Government might feel that they must respond to every new outrage, and we could end up with a set of measures pandering to that.
I ask the Minister for more detail on some of the measures suggested. The proposed scheme has been sprung on us at the last minute, and the Minister has not been able to answer all the points put to him, particularly by the hon. Member for Woking (Mr. Malins). A number of issues spring to mind. We are not yet clear about the kind of work that will be involved. It is important that we understand what projects are to take place.
I am also not clear about how the scheme will work day to day. I would be concerned if there were any plans, for example, to link the proposed scheme with the work of the probation service, resulting in those who are part of the scheme working, alongside people whose work on community projects is part of their punishment. The Minister has said that he would not wish the scheme to be seen as a punishment, but he has not ruled out its being managed day to day by the probation service, so it is open to such misinterpretation, especially if those working on the projects are doing so for different reasons. If he could rule that possibility out now, it would be enormously helpful.
§ Mr. Browne
The activities will not be administered—even indirectly—as part of the criminal justice system. That was never anybody's intention; nobody has ever suggested that. To put up suspicions in order to knock them down does not help to achieve the objective that the hon. Gentleman says he wants to achieve, which is some dialogue that allows us seriously to move forward on these issues.
§ Mr. Oaten
The Minister will forgive me for pointing out that, actually, nobody has suggested anything, which is why it is a problem trying to clarify who is to manage the scheme. It is not unreasonable or ridiculous to suggest that the probation service might manage it. I am grateful that the Minister has ruled that out, although it would be much more helpful if he told us who will be managing the scheme, so that we do not have to come up with all sorts of suggestions that he describes as silly. In a vacuum, such concerns will be aired.
We need to know more about how a judgment will be made on whether the work done is satisfactory. Who will decide that? What consultation will there be with the individuals who are doing the work? We still have not had answers to questions about the amount of work that will be required each week in return for the benefit and support.
I want to probe the Minister a little more on penalties. I want to be clear that he is saying that there will be a right of appeal against a penalty for refusing to do the work. The Joint Committee on Human Rights raised concerns about whether the proposal would breach article 4 of the European convention on human rights. I understand the Minister's suggestion that, given that the proposal is a community scheme, it would be hard to breach article 4, but the Government could be open to some challenge if penalties for failure to do such work were imposed.
1197 There are practical, day-to-day problems that the Government need to address, such as the cost to the individual of going to work. Will that be covered under the scheme, or will it be subtracted from any benefit or support that the individual receives?
There are question marks over the proposed scheme not only about its practical, day-to-day nature, but about the route down which the Government are going by establishing the principle that one does not receive support unless one works. I have long advocated that there should be some chance for these folk to work, but the Minister has ruled that out and given his reasons. In considering the most dignified ways in which such individuals can give something back to the community, I much prefer a route that allows them to choose and to take part in meaningful work for a salary, rather than a Government-managed scheme for which we have few details that might imply that there is some punishment for the benefit provided.
§ Jeremy Corbyn
I was pleased that the Minister gave an assurance that there would be consultation on any regulations that might be introduced before the system was introduced. I hope that will be meaningful and serious consultation. I asked him in an intervention about the ILO definition. I would be grateful if he reflected on that and seriously considered consulting that organisation.
The proposed scheme involves an important principle. People who are unable to return to the country from which they came, for fairly obvious reasons of safety and security, are to be required to make some contribution to the community here for which they will not be paid in cash, although they will receive some benefits in kind such as somewhere to live. That is not a particularly good principle because people might end up doing such work for quite a long time. One thinks of the situation in Iran, Congo, Somalia, China and other places, to which there are either no returns or a very limited number. Some individuals might be at serious risk if they were returned, so they might end up doing the Government-managed work for many years, which is not sensible.
As I said in an intervention and as the hon. Member for Winchester (Mr. Oaten) has said, perhaps it would be better if people contributed by working in a more normal environment, for which they were paid and would therefore pay national insurance and tax. Such a payment scheme could operate on a limited basis—for six months or a year—but at least those people would be working normally and contributing to society.
I suspect that contributions to the community in the form proposed will end up being expensive to administer. I can envisage 500 people around the country doing a bit of painting and decorating, or clearing ponds and ditches, each supervised by one person. We could end up with some incredible bureaucratic cost in order to achieve something that probably would not even succeed in satisfying the editorial writers of the Daily Mail, thereby defeating the whole purpose. Perhaps we should try something a little different.
I also intervened on a serious point that I want the Minister to think about. Because of fear of return, a number of people simply disappear and end up being 1198 exploited in our society through drugs, prostitution, illegal work and all the rest of it, which is very damaging to them and everybody else. Given the labour shortage in London and the south-east, it is very easy to get illegal work and to be grossly exploited as a result. We are not dealing with that issue. Those who agree that at some point they will return to their country of origin will be given somewhere to live by the Home Office and may contribute through informal work, but nothing beyond that. On the other hand, those who are not prepared to agree to that will disappear into the system, work illegally and will often be exploited as a result. Would it not be better to say that it is not safe to return to country X at the moment, and to review that in a set period? We would then know where people were, and there would be less illegal working and less exploitation.
I am not convinced that the Minister's proposals, which were introduced in the Lords, are workable. I hope that the consultation will be serious, and that if the Minister finds that there is hardly any or no support for the idea beyond the rhetoric that prompted it in the first place, he will not proceed to regulate and the proposal will not go ahead.
§ Mr. Malins
I have listened very carefully to what the Minister and others have said during this short debate and I say straight away that I am disappointed. I am disappointed that at no stage the Minister said sorry to this House on behalf of the Government—sorry for the fact that they have introduced this major clause and others so late in the day; sorry that they did not give the Standing Committee any chance to debate the clause; sorry that they did not give this House the chance to debate it on Report; and sorry that they introduced it so late in the other place that they provoked one of their own Ministers to say:The Government's treatment of the Committee could be bordering on contempt".—[Official Report, House of Lords, 6 July 2004; Vol. 663, c. 273.]I ask whether in anyone's memory any Minister has stood up in the other place and, when making an abject apology for his own Government, described their treatment of a Committee as "bordering on contempt". That is astonishing, but typical of the present Government. I am disappointed that the Government have, as always, tabled major clauses at the last moment and pushed them through this House without proper scrutiny, but perhaps by now I should have learned to expect that.
Yes, of course the Minister is right to say that we should all appreciate the benefits of social cohesion. We do. He is right to say that the benefits of social cohesion are not easily quantifiable. However, his explanation regarding the Joint Committee on Human Rights was not satisfactory, and he has dealt with very few of my queries. He has not said what type of work people will have to do, what training they will get for it, whether they will have some form of transport to it, or what will happen if they do not do the work well. He has not even touched on the question of cost. I did a lot of work looking into community service and the costs thereof, but we have not been told what the cost per person of the Government's proposed scheme will be, or even the cost of the project as a whole. That is partly because the Government have acted in such a rush that they simply do not know.
1199 Having expressed my disappointment with the Government's response, let me say that I still feel strongly about amendment (e). If it is appropriate for me to do so, I wish to test the opinion of the House and press that amendment to a vote.
Madam Deputy Speaker
We are dealing with amendment (a) to Lords amendment No. 15. Does the hon. Gentleman wish to withdraw that amendment?
§ Mr. Malins
Yes, provided that we can vote on amendment (e), I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Amendment proposed to Lords amendment No. 15: (e), in line 32, at end insert—
'(ia) prescribe the circumstances which constitute a breach of a requirement to participate in community activities;'.—[Mr. Malins.]
§ Question put, That the amendment be made:—
§ The House divided: Ayes 130, Noes 240.1201
|Division No. 222]||[7.52 pm|
|Ainsworth, Peter (E Surrey)||Field, Mark (Cities of London &|
|Arbuthnot, rh James||Flook, Adrian|
|Atkinson, Peter (Hexham)||Forth, rh Eric|
|Bacon, Richard||Foster, Don (Bath)|
|Barker, Gregory||Gale, Roger (N Thanet)|
|Baron, John (Billericay)||Gillan, Mrs Cheryl|
|Barrett, John||Goodman, Paul|
|Beith, rh A. J.||Gray, James (N Wilts)|
|Bellingham, Henry||Grayling, Chris|
|Bercow, John||Grieve, Dominic|
|Beresford, Sir Paul||Hammond, Philip|
|Blunt, Crispin||Hawkins, Nick|
|Bottomley, Peter (Worthing W)||Heald, Oliver|
|Brazier, Julian||Heath, David|
|Brooke, Mrs Annette L.||Hendry, Charles|
|Browning, Mrs Angela||Hoban, Mark (Fareham)|
|Burns, Simon||Hogg, rh Douglas|
|Burt, Alistair||Holmes, Paul|
|Butterfill, Sir John||Horam, John (Orpington)|
|Calton, Mrs Patsy||Howarth, Gerald (Aldershot)|
|Chapman, Sir Sydney (Chipping||Jack, rh Michael|
|Barnet)||Jackson, Robert (Wantage)|
|Chidgey, David||Jenkin, Bernard|
|Clarke, rh Kenneth (Rushcliffe)||Kirkwood, Sir Archy|
|Collins, Tim||Laing, Mrs Eleanor|
|Conway, Derek||Lamb, Norman|
|Cormack, Sir Patrick||Lansley, Andrew|
|Cran, James (Beverley)||Leigh, Edward|
|Curry, rh David||Lewis, Dr. Julian (New Forest E)|
|Davis, rh David (Haltemprice &||Liddell-Grainger, Ian|
|Davis, rh Terry (B'ham Hodge H)||Lilley, rh Peter|
|Djanogly, Jonathan||Llwyd, Elfyn|
|Doughty, Sue||Loughton, Tim|
|Duncan, Alan (Rutland)||Luff, Peter (M-Worcs)|
|Duncan, Peter (Galloway)||Mackay, rh Andrew|
|Evans, Nigel||McLoughlin, Patrick|
|Ewing, Annabelle||Malins, Humfrey|
|Fabricant, Michael||Mawhinney, rh Sir Brian|
|Fallon, Michael||May, Mrs Theresa|
|Mitchell, Andrew (Sutton||Stanley, rh Sir John|
|Moore, Michael||Swire, Hugo (E Devon)|
|Moss, Malcolm||Taylor, Ian (Esher)|
|Oaten, Mark (Winchester)||Taylor, Dr. Richard (Wyre F)|
|O'Brien, Stephen (Eddisbury)||Taylor, Sir Teddy|
|Ottaway, Richard||Teather, Sarah|
|Paice, James||Thurso, John|
|Paterson, Owen||Tonge, Dr. Jenny|
|Price, Adam (E Carmarthen &||Tredinnick, David|
|Dinefwr)||Turner, Andrew (Isle of Wight)|
|Prisk, Mark (Hertford)||Tyler, Paul (N Cornwall)|
|Pugh, Dr. John||Tyrie, Andrew|
|Randall, John||Walter, Robert|
|Redwood, rh John||Watkinson, Angela|
|Rendel, David||Weir, Michael|
|Robathan, Andrew||Whittingdale, John|
|Robertson, Angus (Moray)||Wiggin, Bill|
|Robertson, Laurence (Tewk b'ry)||Williams, Hywel (Caernarfon)|
|Rosindell, Andrew||Wilshire, David|
|Russell, Bob (Colchester)||Winterton, Ann (Congleton)|
|Salmond, Alex||Winterton, Sir Nicholas|
|Sayeed, Jonathan||Yeo, Tim (S Suffolk)|
|Selous, Andrew||Young, rh Sir George|
|Simpson, Keith (M-Norfolk)||Tellers for the Ayes:|
|Soames, Nicholas||Hugh Robertson and|
|Spring, Richard||Mr. Geoffrey Clifton-Brown|
|Ainger, Nick||Clarke, rh Tom (Coatbridge &|
|Ainsworth, Bob (Cov'try NE)||Chryston)|
|Allen, Graham||Clelland, David|
|Anderson, rh Donald (Swansea E)||Coaker, Vernon|
|Anderson, Janet (Rossendale&||Coffey, Ms Ann|
|Armstrong, rh Ms Hilary||Connarty, Michael|
|Atherton, Ms Candy||Corbyn, Jeremy|
|Bailey, Adrian||Corston, Jean|
|Baird, Vera||Cousins, Jim|
|Barnes Harry||Cox, Tom (Tooting)|
|Barrron, rh Kevin||Cryer, Ann (Keighley)|
|Battle, John||Cummings, John|
|Bayley, Hugh||Cunningham, Jim (Coventry S)|
|Beard, Nigel||Cunningham, Tony (Workington)|
|Beckett, rh Margaret||Darling, rh Alistair|
|Benn, rh Hilary||Davey, Valerie (Bristol W)|
|Bennett, Andrew||Davidson, Ian|
|Benton, Joe (Bootle)||Davies, rh Denzil (Llanelli)|
|Berry, Roger||Davies, Geraint (Croydon C)|
|Best Harold||Davis, rh Terry (B'ham Hodge H)|
|Betts Clive||Dean, Mrs Janet|
|Blears, Ms Hazel||Denham, rh John|
|Bradley, rh Keith (Withington)||Dobson, rh Frank|
|Bradshaw, Ben||Doran, Frank|
|Brown, rh Nicholas (Newcastle E||Drew, David (Stroud)|
|Wallsend)||Eagle, Angela (Wallasey)|
|Browne, Desmond||Edwards, Huw|
|Bryant, Chris||Efford, Clive|
|Buck, Ms Karen||Ellman, Mrs Louise|
|Ennis, Jeff (Barnsley E)|
|Burden, Richard||Farrelly, Paul|
|Burnham, Andy||Field, rh Frank (Birkenhead)|
|Campbell, Alan (Tynemouth)||Fisher, Mark|
|Campbell, Mrs Anne (C'bridge)||Fitzpatrick, Jim|
|Campbell, Ronnie (Blyth V)||Fitzsimons, Mrs Lorna|
|Caplin, Ivor||Flynn, Paul (Newport W)|
|Casale, Roger||Follett, Barbara|
|Challen, Cohn||Foster, rh Derek|
|Chapman, Ben (Wirral S)||Foster, Michael Jabez (Hastings|
|Chaytor, David||& Rye)|
|Clark, Mrs Helen (PeterboroLgh)||Francis, Dr. Hywel|
|Clark, Dr. Lynda (Edinburgh||Gapes, Mike (Ilford S)|
|Clark, Paul (Gillingham)||Gibson, Dr. Ian|
|Gilroy, Linda||Mactaggart, Fiona|
|Godsiff, Roger||McWalter, Tony|
|Goggins, Paul||McWilliam, John|
|Griffiths, Jane (Reading E)||Mahon Mrs Alice|
|Griffiths, Nigel (Edinburgh S)||Marris, Rob (Wolverh'ton SW)|
|Griffiths, Win (Bridgend)||Marshall-Andrews, Robert|
|Grogan, John||Martlew, Eric|
|Hain, rh Peter||Meale, Alan (Mansfield)|
|Hall, Mike (Weaver Vale)||Michael, rh Alun|
|Hamilton, Fabian (Leeds NE)||Milburn, rh Alan|
|Hanson, David||Miller, Andrew|
|Harris, Tom (Glasgow Cathcart)||Moffatt, Laura|
|Healey, John||Mole, Chris|
|Henderson, Doug (Newcastle N)||Moonie, Dr. Lewis|
|Henderson, Ivan (Harwich)||Moran, Margaret|
|Hendrick, Mark||Morley Elliot|
|Hepburn, Stephen||Mountford, Kali|
|Heppell, John||Mullin, Chris|
|Hesford, Stephen||Murphy, Denis (Wansbeck)|
|Heyes, David||Murphy, Jim (Eastwood)|
|Hill, Keith (Streatham)||Naysmith, Dr. Doug|
|Hope, Phil (Corby)||O'Brien, Mike (N Warks)|
|Howarth, rh Alan (Newport E)||Organ, Diana|
|Howarth, George (Knowsley N &||Osborne, Sandra (Ayr)|
|Sefton E)||Owen, Albert|
|Howells, Dr. Kim||Perham, Linda|
|Hughes, Kevin (Doncaster N)||Picking, Anne|
|Humble, Mrs Joan||Pickthall, Colin|
|Hurst Alan (Braintree)||Pike, Peter (Burnley)|
|Hutton, rh John||Plaskitt, James|
|Iddon, Dr. Brian||Pollard, Kerry|
|Illsley, Eric||Pond, Chris (Gravesham)|
|Irranca-Davies, Huw||Pope, Greg (Hyndburn)|
|Jackson, Helen (Hillsborough)||Prentice, Ms Bridget (Lewisham|
|Jenkins, Brian||Prentice, Gordon (Pendle)|
|Johnson, Miss Melanie (Welwyn||Primarolo, rh Dawn|
|Jones, Helen (Warrington N)||Purchase, Ken|
|Jones, Lynne (Selly Oak)||Purnell, James|
|Joyce, Eric (Falkirk W)||Quin, rh Joyce|
|Kaufman, rh Sir Gerald||Quinn Lawrie|
|Keeble, Ms Sally||Rammell, Bill|
|Keen, Alan (Feltham)||Raynsford, rh Nick|
|Keen, Ann (Brentford)||Reid, rh Dr. John (Hamilton N &|
|Kennedy, Jane (Wavertree)||Bellshill)|
|Khabra, Piara S.||Ross, Ernie (Dundee W)|
|Kidney, David||Ruddock, Joan|
|King, Ms Oona (Bethnal Green &||Ryan, Joan (Enfield N)|
|Knight, Jim (S Dorset)||Sarwar, Mohammad|
|Kumar, Dr. Ashok||Shaw Jonathan|
|Ladyman, Dr. Stephen||Sheridan, Jim|
|Lammy, David||Singh Marsha|
|Lawrence, Mrs Jackie||Skinner, Dennis|
|Laxton, Bob (Derby N)||Smith rh Andrew (Oxford E)|
|Lazarowicz, Mark||Smith Angela (Basildon)|
|Lepper, David||Smith Geraldine (Morecambe &|
|Levitt, Tom (High Peak)||Lunesdale)|
|Lewis, Ivan (Bury S)||Smith. Jacqui (Redditch)|
|Lewis, Terry (Worsley)||Smith. Llew (Blaenau Gwent)|
|Liddell, rh Mrs Helen||Spellar, rh John|
|Linton, Martin||Squire, Rachel|
|Love, Andrew||Starkey, Dr. Phyllis|
|Luke, lain (Dundee E)||Stewart. Ian (Eccles)|
|Lyons, John (Strathkelvin)||Stoate, Dr. Howard|
|McAvoy, Thomas||Stringer Graham|
|McCafferty, Chris||Taylor, rh Ann (Dewsbury)|
|MacDougall, John||Taylor, Dari (Stockton S)|
|McFall, rh John||Thomas, Gareth (Clwyd W)|
|McGuire, Mrs Anne||Thomas, Gareth (Harrow W)|
|Mclsaac, Shona||Timms, Stephen|
|McKechin, Ann||Touhig, Don (IsIwyn)|
|McKenna, Rosemary||Truswell, Paul|
|Mackinlay, Andrew||Turner, Dennis (Wolverh'ton SE)|
|McNulty, Tony||Turner, Neil (Wigan)|
|Twigg, Derek (Halton)||Woodward, Shaun|
|Twigg, Stephen (Enfield)||Wright, Anthony D. (Gt|
|Vis, Dr. Rudi||Yarmouth)|
|Wareing, Robert N.|
|Whitehead, Dr. Alan||Wyatt, Derek|
|Williams, rh Alan (Swansea W)|
|Winnick, David||Tellers for the Noes:|
|Winterton, Ms Rosie (Doncaster||Gillian Merron and|
§ Question accordingly negatived.
§ Lords amendment agreed to.
§ Sir Nicholas Winterton (Macclesfield) (Con)
On a point of order, Mr. Deputy Speaker. I seek your advice and help. Will you ascertain whether the Division bells within the Palace of Westminster continue to ring as they have in the past? I have just been to the summer reception of the Motorsport Industry Association in the Cholmondeley Room of the House of Lords. I was well within the precincts of the House of Commons, let alone the Palace of Westminster. I was asked by a friendly Labour Member of this place whether it was my intention to vote. I asked him, "Is there a Division taking place?" He replied, "Yes. If you run, you might just make it." It could be my age but I heard no Division bell. Are the bells still operating? If they are not, would you please ensure, Mr. Deputy Speaker, that they start again to operate to notify Members that Divisions are taking place?
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
I am sure that the House is grateful for the account of the hon. Gentleman's evening. It is regrettable that it had to come to a premature conclusion. I am not aware that the Division bells of the House of Commons ring as they do in this place in the other place. It is usually signified on the Monitors if a Division is taking place in this House. The hon. Gentleman has great experience of these matters and of the House in general. When the House is expecting votes that could occur at any time, one has to have extra vigilance in the conduct of one's other activities outside the Chamber.
§ Sir Nicholas Winterton
I accept that, Mr. Deputy Speaker.
I sought to make it clear in my opening remarks that when I was addressed by the Labour Member I was well within the House of Commons as against being within the House of Lords. I believe that this is not the first time that Members have had problems in hearing Division bells within the House of Commons.
§ Mr. Deputy Speaker
The bells ring for two minutes, not for the whole of the eight minutes. I think that the hon. Gentleman should know that. By the time that he came back within the curtilage of the House of Commons, I dare say that we had reached the point 1203 when the bells no longer rang. I will ensure that what he has said is brought to the attention of the authorities, to ensure that all bells that should be ringing are ringing.
§ Peter Bottomley (Worthing, West) (Con)
Further to that point of order, Mr. Deputy Speaker. In olden days a knight would have a page. Nowadays it might be that a pager would solve the problem.
§ Mr. Deputy Speaker
That is something that the hon. Gentleman might discuss with the hon. Member for Macclesfield (Sir Nicholas Winterton) at a later stage. Perhaps suitable arrangements could be made.
Lords amendment: No. 30
§ Mr. Browne
Lords amendment No. 31 simply clarifies how further applications are dealt with under our one-stop powers once an earlier application has already been determined. The amendment and the change to the immigration rules that will go with it will make it easier for caseworkers to deal consistently with these cases and easier for applicants and their lawyers to understand precisely what is being done. I do not believe that the amendment is controversial; it certainly was not in another place.
I shall concentrate my remarks on Lords amendment No. 30, which provides a power to remove the right of appeal against certain entry clearance decisions. The Secretary of State will be able to specify grounds of refusal that relate to requirements under immigration rules. Where an entry clearance application is refused because a specified ground is not met, there will be no right of appeal. We intend to use this power only in respect of provisions in the immigration rules, which are based on objective criteria. It makes little sense for an applicant to appeal in these circumstances. The decision that an applicant fails to meet such a requirement is a question of fact. Appeals in such circumstances would be fruitless and wasteful.
The amendment extends the scope of section 88 of the Nationality, Immigration and Asylum Act 2002. Section 88 already prevents an appeal in cases in which a requirement in respect of age, nationality, documentation or the period for which leave is sought is not met, or in which the purpose of entry or stay is not covered by the immigration rules. The amendment will not affect existing rights of appeal in respect of race discrimination and human rights issues. Those residual appeal rights are preserved by the construction of section 88, which is mirrored in proposed new section 88A(2)(a), as set out in the amendment.
The provision will support the steps that we are taking to tackle areas of abuse in entry clearance cases. Where it is necessary to amend the immigration rules to create additional objective criteria, the power could be used to preclude a right of appeal against refusals based on a failure to meet that new requirement. Thus, a 1204 development of the immigration rules need not result in new meritless appeals. Such appeals impact adversely on the swift resolution of other arguable appeals. Without the power, we would have to use new primary legislation to remove the right of appeal each time a rules change created an objective criterion for refusal.
I understand the concern about the operation of the order-making power. I assure the House that it will be applied only to provisions of the immigration rules that are based on objective criteria—that is to say, provisions about which there can be little debate as to whether the necessary requirements have been met. Furthermore, the amendment provides that the order-making power is subject to affirmative procedures, so any use of the power will be subject to debate in both Houses.
It is appropriate for me to give some helpful examples as to how the power might be used. As is known, the Government are creating a register of bona fide colleges. If such a register were put in place, we would make it a specified requirement for entry clearance as a student that the applicant is enrolled at a registered college. As enrolment at a non-registered college is a clear matter of fact leaving no issue to be argued on appeal, it would make no sense for a right of appeal to exist, so this circumstance would be a candidate for designation under the provision.
Similarly, we are in the process of implementing proposals for a new scheme specifically for science and engineering graduates, which was announced last year, and a scheme for MBA—master of business administration—graduates that was announced in this year's Budget. Those also might be considered for designation under the provision. Under such schemes, leave to enter would be contingent on specific qualifications from specific institutions. Again, that would not be open to argument and a right of appeal would be unnecessary.
An example of where the power could be used in relation to an existing provision of the immigration rules is in respect of paragraph 246, which deals withthe requirements to be met by a person seeking leave to enter the United Kingdom to exercise access rights to a child resident in the United Kingdom".It is necessary for an applicant to produce evidence that he has access rights to the child in the form of a residence order or a contact order granted by a court in the United Kingdom or a certificate issued by a district judge confirming his intention to maintain contact with the child. Without one of those documents, the appeal cannot succeed. Whether an applicant had produced the required evidence would not be open to argument, so an appeal would be unnecessary.
I shall quickly go through some examples of further such provisions, as they might help the rest of the debate. Paragraph 87A(i) deals with the requirement that the applicant has been elected to a full-time salaried post as a sabbatical officer at an educational establishment at which he is registered as a student. Paragraph 110(i) states that a teaching or language exchange must be approved by the education departments or administered by the Central Bureau for Educational Visits and Exchanges or the League for the Exchange of Commonwealth Teachers. Finally, paragraph 178(i) deals with when an applicant had been transferred to the UK by an overseas-owned airline 1205 operating services to and from the UK to take up duty at an international airport as a station manager, security manager or technical manager.
Those examples show that the immigration rules already contain provisions about which there can be little room for debate, as whether they are met is a matter of objective fact. There is no evidence of abuse in any of those categories at this time, and we do not intend to specify the requirements at present, but they are good examples in relation to which the power would be useful if abuse or problems arose.
I commend the Lords amendments to the House.
§ Mr. Malins
I shall be brief, but I wish to make one or two general observations. It has been acknowledged by the Government and in another place that, in so far as the measure deals with students and bogus colleges, it is worth pointing out that international students provide enormous value to this country. That is the case in terms of the economic, political and diplomatic advantages of the many hundreds of thousands of international students who come to this country for further or higher education. In the other place, my noble Friend Baroness Anelay rightly said that overseas students contribute billions of pounds to our economy, and it is important that we encourage them strongly
The Minister envisages that the new clause set out in the amendment, in so far as it relates to students, may address two problems: students who enrol at a bogus college and those who enrol at a college that does not maintain proper attendance checks. I wonder whether he has had any correspondence about this matter. I certainly recall receiving correspondence from one or two people around the country who were concerned about students who enrolled at a college and never turned up. I hope that there will be practical measures to ensure that the issue is dealt with.
We welcome the Minister's statement that there will be a register of bona fide colleges, which is a good step forward. There have been abuses with students from abroad coming to this country, but I am sure that he will be the first to acknowledge the vital contribution made by so many international students to life in this country.
§ Mr. Gerrard
I shall try to be brief. I understand the points that the Minister made about cases in which there are objective and clear facts that are covered in the immigration rules. With regard to his point about bogus students and colleges, I am pleased that there is to be a register of colleges and courses. In addition to cases in which people have used such things as a means of evading immigration controls, I have also seen significant numbers of cases in which people have been enrolled on courses that were totally worthless and paid large amounts of money for them, but were ripped off by fake colleges. I am glad that we will have some controls in those parts of the system.
My concerns about the amendment relate not so much to what the Minister said in introducing it as to what the proposed new clause says. Although he said that it would turn on an objective fact, I do not see where 1206 that is set out in the clause, which talks about a decision to refuse beingtaken on grounds which…relate to a provision of immigration rules, and…are specified for the purpose of this section by order of the Secretary of State.The Minister has obviously indicated the sort of cases that he might intend to specify, but the phraserelate to a provision of the immigration rulesseems extremely wide. I do not think that it could be argued that a clear, objective test could be applied to every provision in the immigration rules. Unless my memory serves me wrongly, I believe that those rules contain provisions on marriage applications, for example. We expect someone who is applying for entry clearance on the basis of marriage to satisfy an entry clearance officer that they are married, that the person in the UK has means to support them without recourse to public funds and that accommodation is available for them. Those issues are often subject to argument in appeals and it is not possible to apply a simple, objective test to such provisions in the immigration rules. I would prefer the proposed new section to spell out the cases to which the power would be applied, rather than leaving it to regulation.
I draw attention to a point made by the independent monitor for entry clearance in her recent report, which suggested that significant numbers of applicants were wrongly denied the right to appeal in 2002. The independent entry clearance monitor examines cases in which a right of appeal does not exist and she said that applicants were wrongly denied that right in significant numbers of cases. In other words, things often go wrong under provisions that do not provide a right of appeal.
I am concerned about the proposed new section's breadth and what it might open up. I accept the Minister's point that he intends to use the power to introduce regulations dealing purely with objective facts. Unfortunately, the proposed new section's drafting leaves it open for a future Minister of whatever Government to use the proposed new section in a totally different way, rather than simply dealing with the straightforward cases that my hon. Friend the Minister discussed in introducing the debate. Although I trust him, I do not necessarily trust a future Minister, who might represent a different party, to apply the proposed new section.
I have some concerns about the drafting of the proposed new section. I accept that the positive procedure will be used and that the matter will be debated in the House, which is certainly preferable to the negative procedure. If a regulation is based on the proposed new section, I hope that a warning will be given and that a consultation will occur. That will allow hon. Members to know precisely what is proposed in advance, rather than debating the regulation at short notice without being able to assess its impact. Although I accept the Minister's remarks on colleges, I am concerned about how the power might be used in future.
§ Mr. Heath
I agree with many of the cautious remarks made by the hon. Member for Walthamstow (Mr. Gerrard). I suspect that there is nothing intrinsically wrong with most of what the Minister said in introducing the proposed new section. The difficulty is that it is framed in such a way as to be capable of wider interpretation, which may not be as benign as the Minister suggests.
1207 When the Government identify an abuse of process, they have a regrettable tendency, which sadly we have seen before in the course of this Bill, to abolish the process rather than the abuse, which is a shame. For instance, I understand that the register of colleges will bear down on a specific area of abuse. I welcome that sensible provision, although given the requirement for an appeal to have merit, it throws into question who would bring an appeal against a refusal on the ground of non-inclusion in a register, when the position would appear to be transparent and not capable of a great deal of learned discussion, even by the most highly paid legal authorities.
Although the Minister helpfully stated that only readily ascertainable, objective tests can be used, practitioners in the field outside this place will suspect that at some unspecified stage—it would probably not involve this Minister, this Department or this Government—the proposed new section could be used to introduce a subjective test by statutory instrument that would be incapable of resolution through the appeal process. However, I do not want to overstate that concern.
The examples and the assurance on objectivity provided by the Minister are helpful, but the nagging suspicion remains that the proposed new section is framed in terms that are too wide for the purpose and that could have been more narrowly drawn to great advantage.
§ Mr. Browne
I shall be brief. The hon. Member for Somerton and Frome (Mr. Heath) categorised the Government's behaviour as identifying an abuse and abolishing the process. The proposed new section enables us to identify an abuse and amend the process to interdict the abuse. To that extent, I am sure that he thinks that we are doing the right thing. I am grateful to hon. Members for their contributions to the debate and for their qualified support. I am also grateful to them for accepting my intentions as a Minister and the intentions of the Government and the Home Office.
On further specification in the proposed new section, drafting challenges that cannot be overcome mean that we cannot define what constitutes an objective criterion. Consequently, the Government have given assurances on how the power will be used and are committed to abiding by them. In trying to interdict abuse, we cannot be constrained by what other Governments more meanly disposed to this area of public policy might do. The fact that any order made under the provision will be subject to affirmative resolution procedure should address any concerns about the scope of the power. No other points that require a response were raised in the debate, and I am content to rest my arguments at this point.
Lords amendment agreed to.
Lords amendment No. 31 agreed to.
1208 Lords amendment: No. 17.
§ Mr. Deputy Speaker
With this we may discuss the following: Lords amendment No. 18 and amendments (a) to (e) thereto, and Lords amendments Nos. 14 and 16.
§ Mr. Browne
Lords amendments Nos. 14 and 16 were not contentious in the other place and I do not anticipate contention here. I therefore intend to speak about them briefly and to concentrate on Lords amendments Nos. 17 and 18, to which the Opposition have tabled amendments.
Lords amendment No. 14 would make the section 8 offence, which is the main statutory control on illegal working, triable on indictment as well as summarily. That would mean that, in the more serious cases, the Immigration Advisory Service could pursue a prosecution in the Crown court, where there is no limit to the fine that can be imposed following conviction on indictment. The Government believe that it is essential to take action against unscrupulous employers who profit from the exploitation of illegal workers and are sometimes found to have links with organised crime. That is why we want to send a powerful message of deterrence by increasing the fines that the courts may impose in the most serious cases.
§ Mr. Malins
I was interested by the change in penalty. I may be wrong, but I do not believe that a custodial sentence is available to the courts in relation to an offence under section 8 of the Asylum and Immigration Act 1996. I do not expect the Minister to answer that now but if I am right, I a little sorry. Perhaps I should not be sorry, but I believe that I should be.
§ Mr. Browne
I am not sure whether I can help the hon. Gentleman out of the dilemma that he has expressed. However, the penalties that follow contravention of section 8 are financial and were put in place before the Government came to power.
The dispersal of asylum seekers is an important policy and, among other things, helps to reduce pressures on social housing and local government services in areas where they are already stretched, especially in London and other areas of the south-east. Lords amendment No. 16 ensures that, for the purposes of homelessness legislation in England and Wales, asylum seekers should automatically establish a local connection with an area when they are dispersed there by the Home Office and provided with accommodation under section 95 of the Immigration and Asylum Act 1999. That is to ensure that the local housing authority in the dispersal area has the responsibility of securing accommodation for them, should they subsequently be granted leave to remain and apply for homelessness assistance.
Lords amendment No. 17 would abolish back payments of income support and related benefits to refugees. Since the creation of the National Asylum Support Service in April 2000, asylum seekers who are granted refugee status have been able to apply for a back 1209 payment of income support equal to the 30 per cent. differential between the cash element of asylum support and income support that is backdated to when they made their claim for asylum.
Given that those who receive asylum support also get other benefits in kind, such as payment of utility bills and household items, the Government believe that the back payment is no longer necessary. The amendment would therefore repeal section 123 of the Immigration and Asylum Act 1999. The relevant supporting regulations will also cease to have effect on the repeal of the section. For the sake of clarity and certainty, we are taking the opportunity to revoke those regulations expressly in the legislation.
§ Mr. Oaten
Does the Minister have any concerns that, during the relevant period, individuals may have taken out loans and had to borrow money, and that the back payment was often a way of settling some of those loans? Is the Minister worried that, by removing the provision, individuals may not be able to pay back some of the help and support that they received in that difficult period?
§ Mr. Browne
Given the complexity of the legislation on the claims, asylum seekers would be ill advised to operate on the certainty of a grant of refugee status and guaranteed back payments. There were no guaranteed back payments for all asylum seekers who attained refugee status and I am not prepared to determine the policy on back payments and loans for the future, which would be the corollary of removing the back payment provisions on the basis of speculation that people may be granted refugee status and get some windfall in the form of back payment of benefit. I do not accept that people conduct their affairs on that basis. If they do, they would be well advised not to do so. Nobody should give them such advice, not even implicitly.
§ Mr. Gerrard
What is my hon. Friend's estimate of the savings from the change in the amount of money that will not be paid out in back payments, the amount that will be paid out in loans and the cost of administering a loans system, which will presumably have to be set up from scratch?
§ Mr. Browne
I have not got the figures to give my hon. Friend off the top of my head but I shall provide them later. However, the savings on back payments will be used to fund the loans system. That is appropriate and I shall discuss the reasons for that. Depending on the depth into which we can go in the debate, I hope that I can convince my hon. Friend and other hon. Members of the correctness of that argument. Perhaps by the time I deal with those issues, I can give my hon. Friend more specific information.
The amendment also deals with an earlier back payments scheme under section 11(2) of the Asylum and Immigration Act 1996, and seeks to revoke the regulations that preserve it for transitional purposes. Although the vast majority of claims for back payments of income support are made under the 1999 Act, we want to make sure that the policy is applied consistently. Our policy is that back payments will cease for all those recorded as refugees after the clause comes into effect, irrespective of when they made their claim for asylum.
1210 Lords amendment No. 18, which seeks to introduce integration loans for refugees, will be funded out of money saved by the abolition of the current back payments system. The new scheme will come into force only when the current scheme is ended. The Government want to move away from the current system under which payments are made to all refugees, and which are calculated according to the amount of time spent waiting for an asylum decision. With the new system, the Government will be able to target loans at those refugees who are most in need of help to establish themselves in a new life in the United Kingdom, and, ultimately, to facilitate their successful integration into society.
In providing a loan, the Government seek to ensure that refugees can quickly establish themselves in the United Kingdom and to enable them to fulfil their potential and to contribute to both society and the economy. By recovering money loaned, the system has the potential to become a powerful tool in facilitating refugee integration, not only for refugees today but for those who will need our help in the future. The Government are committed to administering the loan system in the most cost-effective way possible and are conducting detailed work across Departments to establish how the loan might best be delivered.
At this stage, it seems likely that the money disbursed by the Secretary of State will be recovered via mechanisms already established by the Department for Work and Pensions for collecting money owed either to that Department or to a third party. As to the extent of the existing financial provisions, I am told that about £11 million was spent in 2002, but we do not yet have the detailed figures for 2003. As I said, the money saved will be used for the integration loan.
I commend the Lords amendments to the House.
§ Mr. Malins
Lords amendments Nos. 17 and 18 are linked, and the Opposition do not object in principle to the change in procedure introduced by the Government, of taking away the backdating of benefits position and replacing it with a discretionary loan system. We hope that it will work well.
My colleagues and I have tabled several amendments to Lords amendment No. 18, the first of which changes "may" to "shall"—Oppositions tend to change "may" to "shall"—on the basis that, in this case, we ought to impose on the Government some duty to make regulations.
My second amendment is designed for one thing only: to seek to persuade the Government that in an ideal world, in which we do not live, all decisions about refugee status should be decided in a very short period—six weeks. I still believe that the Government have a great deal of work to do to ensure that initial decisions on asylum applications are made quicker and more efficiently.
My third amendment concerns interest. It is designed to draw from the Government further comment about the interest rates that might be applied to discretionary loans of this sort.
My fourth important amendment would strike out that part of Lords amendment No. 18 that says that the regulationsmay confer a discretion on the Secretary of State.1211 Never in my whole—if not distinguished, then lengthy—career in the House have I seen a clause that simply gives the Secretary of State discretion to do whatever he or she wants. What sort of discretion might we be giving to the Secretary of State in relation to those loans?
How will refugees be able to apply for a loan, and to whom? How much money will be saved by the first of the two provisions—the Minister has half answered that—enabling the loan system to be set up? How much will go into the loan system? Lord Rooker said in the other place that the Government were having discussions with the Department for Work and Pensions. I should be grateful if the Minister could bring us up to date.
These are probing amendments, drawn up in the short time available to us. I know that the Minister is embarrassed about that: he is an honourable man, and he would have wanted us to have much more time in which to discuss these matters. He may, however, be able to give me an inkling of his response in due course.
§ Mr. Gerrard
Lords amendment No. 17 is, in my view, extremely mean and miserable. Removing the requirement for people to pay at the point at which they are given refugee status—given the costs to the national budget about which we have just heard—will hardly break the Chancellor's bank. I suspect that the loan scheme will result in no great savings and will be messy to administer. Moreover, I do not know how some of the regulations will work. Clause 18 suggests that the regulationsmay make provision about steps to be taken by the Secretary of State in establishing an applicant's likely ability to repay a loan".The applicant may have been in National Asylum Support Service accommodation for several months. He or she may have just been granted refugee status, and may not have been given permission to work. How on earth can such an assessment be made? It is beyond me.
I have encountered a number of cases in which people have been in financial difficulties when they have been granted refugee status, because they have been living on 70 per cent. of the rate of income support. They have not been able to manage on that. They have had to borrow money, formally or informally—often informally, from friends and relatives who have kept them afloat. Receiving money on obtaining refugee status has enabled them to survive and repay some of the debts that have accumulated—rent arrears, for example—and to make a fresh start. I really do think that this is a miserable, mean-minded change.
As for Lords amendment No. 16, I understand the arguments about local connections. The intention is to reverse the effect of a court decision made a few months ago. I do not think, however, that people will remain in the areas to which they have been dispersed. People who have been moved out of London will return because they have friends and relatives there, and they will not be able to secure social housing. Some pressure may be removed from individual local authority housing departments that will not be rehousing such people on the grounds that they are homeless, but housing 1212 pressures in general will not be dealt with. Those people will be back in London staying with family or friends, or struggling to find private rented accommodation.
§ Mr. Browne
Amendment (a) seeks to make it mandatory for the Secretary of State to make regulations enabling him to make loans to refugees. As Lord Rooker said in another place, the Government are committed to ensuring that there is a seamless transition between the ending of back-payments and the introduction of a refugee integration loan. I repeat that commitment; indeed, I have already done so. There will be no gap between the ending of back-payments and the introduction of a refugee integration loan.
I hope that that commitment is sufficient to reassure the House that there is no need to oblige the Secretary of State to make regulations enabling the making of loans to refugees. He has every intention of introducing the scheme as soon as the necessary practical arrangements have been made.
Amendment (b) seeks to make Lords amendment No. 18 read:A person is a refugee for the purpose of subsection (1) if the Secretary of State has within six weeks of his application…recorded him as a refugee".One aspect of the proposal that I welcome is the implicit recognition of the major improvements that we have secured in reducing decision-making times. In 1997, the suggestion that all decisions must be taken within six weeks would have been so far divorced from reality as to have been laughable. By 2002, however, that figure, including decisions on backlog cases, was provisionally down to six months.
We fully recognise the importance of quick decision making; it is good administrative practice and good news for asylum seekers, who will have less time to worry about the outcome of their claim. The importance that we attach to that is reflected in the published targets that we have set ourselves. For the previous financial year, there was a target to decide 75 per cent. of new asylum applications within two months—a target that we are provisionally on course to beat. Indeed, we have recently decided about 80 per cent. of new cases within two months. In addition, we have made massive inroads into the backlog.
We have no difficulty in being open to public scrutiny of our ability to turn cases round quickly, and we will continue to take steps to improve our current performance. Having said that, I see no merit in a rigid requirement in primary legislation stipulating that a decision must be taken within a specified time, whatever that period may be. In the majority of cases, it is possible to decide claims quickly and fairly. However, there will always be some cases that cannot be decided quickly if they are also to be decided fairly. Under the constraints imposed by subsection (1), we would be forced to take decisions without having the necessary facts at our disposal. I do not consider that an acceptable outcome.
Amendment (c) to amendment No. 18 seeks to remove the Secretary of State's power to make regulations that enable him to charge interest on an integration loan. It is the Government's current intention that this loan to refugees should be interest-free. Should a decision be taken to charge interest on the 1213 loan in future, I would expect comparisons to be drawn with other loan schemes in operation across government, such as the student loan system. I reassure the House that any future interest rate would be dealt with in regulations, subject to the affirmative procedure.
Taken together, amendments (d) and (e) seek to remove the power for regulations to confer discretion on the Secretary of State. The intention behind Lords amendment No. 18 is to enable the Secretary of State to ensure that in all cases a loan is made to a deserving case. We do not believe that such discretion would allow the Secretary of State to ignore all other provisions in the amendment, or to act in an unreasonable way. For those reasons—
It being after three and a half hours after the commencement of proceedings, Ma. DEPUTY SPEAKER proceeded to put the Questions necessary to dispose of the business to be concluded at that hour, pursuant to Order [this day].
Lords amendment No. 17 agreed to.
Lords amendments Nos. 18, 14 and 16 agreed to.
Lords amendment: No. 21.
§ Mr. Deputy Speaker
With this it will be convenient to discuss the following: amendment (c) thereto; Lords amendments Nos. 22 to 27; Lords amendments Nos. 19, 20, 32, 40, 41, 33, 34; Lords amendments Nos. 1 to 13; Lords amendments Nos. 35 to 39; and Lords amendments Nos. 63 to 69.
§ Mr. Malins
Lords amendment No. 21 and the new clause on marriage could, so far as I can see, be re-titled "Procedure for marriage: the need to ask the Home Secretary personally for permission in each case, save where it is in a Church of England church". It is a most interesting provision.
The proposed new clause is important, following as it does much discussion in the past few months about so-called bogus and sham marriages. On 22 June 2004, I asked the Minister a written question about the number of alleged sham marriages reported to his Department by marriage registrars, and in how many such cases enforcement action was taken by his Department. The answer was surprising and rather troubling. In 2001 there were 756 notifications from 126 registrar districts; in 2002, there were 1,205 notifications; and in 2003 there were 2,712 notifications. Indeed. I understand that in 2004, there have been some 2,500 notifications of alleged sham marriages to date. In every case of a sham marriage there are likely to be two persons behaving fraudulently, so it seems that an awful lot of people are getting involved in some form of criminal activity at our registry offices:—possibly up to 10,000, on these figures alone, in the past four years.
I was surprised, then, to read that in the last financial year enforcement teams in London were responsible for the arrest of only 110 individuals, only 37 of whom were charged with criminal offences. One begins to think that the Government were far too slow in finding out about the problem and certainly in doing anything about it. Is that a reasonable view for me to hold? I had a long interview with a senior registrar, whose comments I shall set forth.
1214 The senior registrar—there are about 300 in the country—talked about the problems that he had faced in the past few years in relation to sham marriages. He said that it was virtually impossible to stop people getting married even if he was suspicious, and he went on to deal with section 24 reports—the reports that registrars are obliged to make to the Home Office when they suspect a marriage of being a sham. There is a prescribed form for submitting such reports. He told me that it was customary to send them in by email, letter or fax.
Here is the rub. The registrar told me—I admit that this is anecdotal—that it was the experience of registrars throughout the country that although very many reports were sent in, there was "virtually no reaction" from the Home Office until a couple of months ago.
§ Mr. Oaten
I am very interested in this anecdotal evidence. Did the hon. Gentleman ask the registrar how difficult it was for ordinary registrars to spot a problem? The Government are suggesting that we need special registrars to look into such cases. What did ordinary registrars think about their ability to identify such problems?
§ Mr. Malins
It seemed to me that the senior registrar was saying that registrars throughout the country—all somewhat expert in these matters, because it is their job—had found certain couples to be absolutely suspicious. It beggars belief that a registrar should have to tell me that he had "virtually no reaction" from the Home Office whenever he submitted a report. He said that there was rarely, if ever, any feedback from the Home Office. There was no acknowledgement, and no one turned up from the Home Office. Because of that inaction, registrars have effectively been obliged to ask whether it is really worth submitting such reports. They press on as best they can, but they have been poorly served by the Home Office.
Furthermore, interestingly—I do not know why this is the case—the registrar told me that the police are not remotely interested in this sort of thing and did not want to know. Registrars get very frustrated at Home Office inaction.
These provisions require applicants to take certain steps. I see that the Minister is laughing. I hope that he is not laughing at the Home Office's performance over the past few years, and that he will agree that it really has been rather poor. I acknowledge that the provisions are a welcome step forward in trying to deal with this matter. There may have been problems in the past that they missed or did not do enough about, but they are trying hard to get to grips with the situation. I thank them for that.
The clause has been slightly improved in the other place, and there is much in it that is good, but I want to make a few points. Amendment (a) would require that notice may be given only if each party to the marriage has been resident in a district for a period of 14 days, not seven. I see no reason why the provision should not be tougher. Seven days is acceptable, but what is wrong with 14?
Amendment (c) deals with the need for the registrar to keepa written record of applications refused which shall include reasons for refusal".1215 I believe that the registrar could and should have that duty placed upon him or her.
Although the Government's proposals represent a sensible approach to the matter, certain things must happen if they are to work properly. First, there must be an efficient means of sharing information on marriage applications between registrars, the Home Office and UK Visas. Secondly, the Home Office must, from now on, actively enforce the law.
Under the proposals, all non-European economic area nationals wishing to marry will need to apply to the Home Office for a permission document, and registrars will be able to refuse to marry a person who cannot produce it. What information is that document likely to contain? I shall be helpful to the Government by saying that it should include the applicant's name and address, a photograph, a description of their immigration status, a statement of their marital status, and the name of the proposed spouse with similar information about her or him, including a photograph and a date of grant permission.
Here is the rub. Can the Minister confirm that the document will contain several security features—for example, watermarks or holograms—and a unique serial number specific to the application? If the potential fraudster seeks to use his or her own identity with forged documents, there is a real prospect of their getting caught. However, what if he seeks to use someone else's identity? That would give him a much better chance of fooling the registrar. I hope that the Minister will spend a little time focusing on the permission document and on my idea that it should contain a unique—say a 10figure—serial number. That would mean that there was a real chance that the applicant would have to be genuine to get through the process—past the Home Office and to the registrar—without being able to get away with fraud or the like.
There are two other brief matters to mention in connection with this clause on marriage. The first is the report of the Joint Committee. I do not need to tell the Minister that the Joint Committee had something to say on the clause, and I hope that he deals with the matter in a way that satisfies the House.
I come now to the second thing that I was going to say. One needs to learn a lesson in life. Whenever one says, "I've got three points to make," it is almost inevitable that one makes the first two and forgets the third. When that first happened to me some months ago, I swore that in future I would say that I had a number of points to make. That way, I would not have to number them and forget what my second or third point was. One can also then talk a little longer and hope that the point comes back to one, and it just has.
My other point, apart from the Joint Committee aspect, is that the provision relates to marriages by registrar in a registry office. There is no such requirement in relation to marriages in other areas of our national life—just in relation to the Church of England—and that is a little difference that we perhaps need to look into.
I am very tempted to tell the House the story of the bigamist whom I had to put in prison five years ago, but that, I am afraid, is for another night.
§ 9 pm
§ Mr. Browne
I have a number of points to make, and if I talk long enough I may remember them. The Government's position is, of course, to agree to the Lords amendment and—in due course, I shall come to the reasons why—to disagree to the Opposition amendments.
This last, extensive group of amendments covers a wide range of changes made to the Bill in another place and, of course, the Opposition amendments relating to marriage procedures, to which I will respond in some detail in a moment.
The amendments to clause 2 provide greater clarity on the defences available to someone who commits the offence of being without an immigration document at a leave or asylum interview. Those amendments respond to debates both here and in another place and put beyond doubt our intention to target only those who have destroyed or disposed of their immigration documents, not those who have never had one.
The amendments to clause 9 extend immigration officers' powers to provide a power of arrest without warrant and ancillary powers of entry, search and seizure in respect of several human trafficking offences, including the new offence of trafficking people for exploitation under clause 4. Amendment No. 32 creates a new right of appeal against bail decisions made by the Special Immigration Appeals Commission. These amendments enjoyed cross-party support when they were considered by their lordships.
Amendments Nos. 33 and 34 would allow for the electronic monitoring of certain individuals for whom bail was granted by the SIAC. Having reviewed the matter in the light of events since the Bill was introduced—in particular, the comments made by the Newton committee following its review of the Antiterrorism, Crime and Security Act 2001, and SIAC's decision to grant bail in an individual case—we concluded that although electronic monitoring may not be appropriate in every case, it might be a useful tool in certain circumstances.
Clause 23 was subject to two minor Government amendments in another place, and both were welcomed. First, the definition of the "material" that the commissioner can seize was narrowed by preventing him from seizing "excluded" and "special procedure" material as defined by the Police and Criminal Evidence Act 1984. That was done in the light of concerns expressed by the Joint Committee on Human Rights. The commissioner accepted that such material was of no value to his investigators.
Secondly, it was agreed to delete references to a justice of the peace in Scotland. That followed several Opposition amendments to that effect and representations from the Law Society of Scotland.
In response to a recommendation from the Delegated Powers and Regulatory Reform Committee and points raised throughout the Bill's passage, we brought back an amendment to strengthen safeguards to clause 27, which provides for levying fees. Amendment No. 39 provides, first, that prior to the introduction of a fee under this power the Secretary of State shall consult appropriate persons, and secondly, that an order made under this power shall be subject to the affirmative 1217 resolution procedure, requiring approval by both Houses of Parliament. The remaining amendments are minor and/or consequential to other amendments.
I come to the substantive amendments introduced by the Government in another place on marriage procedures, and the amendments moved by the Opposition today. As has already been said in this short debate, under section 24 of the Immigration and Asylum Act 1999 registrars are obliged to report suspected sham marriages to the Home Office. Section 24 came into force in 2001. Since then, as we heard, reports have been increasing in number—in the first year, there were 756 reports, increasing to 1,205 in 2002 and 2,700 in 2003. This evidence, taken together with growing anecdotal and other evidence, shows that there has been a considerable increase in the number of marriages taking place in the United Kingdom where there is no intention of entering into a genuine relationship, but where the purpose is solely to circumvent our immigration control.
Hon. Members may ask whether the evidence is strong enough to justify intervention, given the inconvenience that intervention may cause to genuine couples wishing to marry. As I am sure the House will appreciate, this is an area where it is difficult to collect hard evidence on the scale of abuse. The Government consider that the clear trend in reports from registrars, together with discussions that we have had with them on the subject—since my appointment at the beginning of April, I have met registrars and their representatives twice—and other intelligence sources fully justify such intervention.
We have already acted in the face of those reports. In the last financial year, immigration enforcement teams in London alone carried out operat ions at more than 60 weddings, resulting in the arrest of 110 individuals, most of whom were either removed from the United Kingdom as illegal immigrants or, in the case of 37 of the 110 arrested, were charged with criminal offences.
§ Mr. Oaten
Given that the new powers have been in operation for about two years and seem to have had some initial success in terms of the number of arrests, did the Minister consider seeing how that pattern of progress would develop over the next couple of years, rather than introducing a new measure?
§ Mr. Browne
I did precisely that, and I am grateful to the hon. Gentleman for giving me the opportunity to bring forward a part of my speech that I had intended to come to later. The other evidence suggested to me that enforcement, such as it was, was effective where it could take place, but had no prospect of covering the possibilities for abuse across England and Wales or, indeed, across the United Kingdom. There were not enough immigration officers to do that.
Against the background of a 35 per cent. increase in the number of immigration officers in the employ of the immigration service under the present Government, it did not seem appropriate to prioritise the marriage issue as a use of that resource when it was needed for other purposes if there were processes whereby such abuse could be dealt with and interdicted.
It may be helpful to tell the House at this stage that the purpose of the changes is not to create the opportunity for intervention at 2,700 or thereabouts 1218 events, but to interdict them from taking place at all. It is a matter of deterrence. Hon. Members and others who criticise these steps, which I think are entirely sensible, ought to understand that. Evidence suggests that if the behaviour is deterred, it will go away. If it is policed, it will displace. In other words, the people involved will not come to the places where they expect immigration officers to be, but will displace to other venues. If one accepts that analysis of the evidence—it clearly is the right analysis and it is shared by the registrars, the local authorities, the police, the immigration service and the Home Office—one can see that the combination of factors that I am about to explain in more detail is exactly the right approach to deal with the problem.
§ Mr. Browne
Perhaps I should have stuck to the script that I had originally prepared on this issue. However, to borrow a phrase from "Mastermind", I have started, so I will finish. I think that the hon. Gentleman understands the analysis of the evidence and the reasoning behind the Government's choice of this method. The point that I am making is that the success or failure of these provisions will be gauged by whether they deter this behaviour. I do not expect—and I am certainly not going to put resources into—a whole series of interventions into sham or potentially sham marriages. I have every confidence that these provisions will stop people seeking to go down that route to change their status under the immigration rules, and I shall explain why.
We have recognised that this is an increasing problem, and that it demands a heightened response. On 22 April, the Home Secretary announced a major new enforcement effort to target sham marriages and the people who organise them, who are just as much a target of this process as the individuals involved in the marriages. As a result, the immigration service arrested 60 people in May alone, and has made further arrests since. Those figures are intended to show the scale of a problem—as the hon. Member for Woking (Mr. Malins) sought to do earlier—in which immigration offenders see the abuse of United Kingdom marriage laws as an easy way to get around immigration controls.
§ Mr. Malins
I hope that the Minister will comment on my view that the Home Office's performance in relation to the section 24 notices in 2001, 2002 and 2003—indeed, up to two or three months ago—was, at best, patchy and, according to the registrar, probably very poor indeed. Does the Minister agree with that?
§ Mr. Browne
When speaking in public, I have consistently made it a rule not to comment on anonymous comments. I do not doubt that the hon. Gentleman has a good source for those observations, but they are still anonymous and, as a matter of practice, I do not intend to comment on them. I spent the best part of 25 years in the west of Scotland practising law and constantly being told by people that they had good authority for what they were telling me was the law of 1219 Scotland. Often, when I asked them what that authority was, they said that it was either The Sunday Post—a publication that came out on a Sunday in Scotland—or a man they had met in the pub. I am not in a position to evaluate third party comments about the performance of the Home Office when I do not have the details of that performance.
I am able to tell the hon. Gentleman, however, that the immigration and nationality directorate, the immigration service—which is part of the IND—my fellow Ministers in the Home Office and the Secretary of State are seized of this issue, and are absolutely persuaded that it can be dealt with partly by enforcement and partly by changing the rules on the formalities of marriage. That is what we are proposing to do in the Bill, and it is exactly the right way to deal with this issue.
It was suggested in another place that the increase in reports of sham marriages was due solely to the increased enforcement effort. Concentrated enforcement in particular areas of behaviour highlights the extent of that behaviour and tends to suggest that it has increased when, in fact, it was always there. When the crime figures come out, I am always amused by observations about increases in drug crime in a particular area, for example. If we take into account that there is no drug crime until it is detected. the increases are normally a reflection of improved policing in that area. They do not mean that the drug crime was not always there.
I can assure my hon. Friends that it was not the enforcement that increased the number of sham marriages that were taking place, or, indeed, the number of reports of such marriages. Wherever the hon. Member for Woking got his information from, he was right to point out to the House that we did not intensify our enforcement efforts prior to an increase in section 24 reports; we intensified them because we had already seen the reports increase in number.
As well as seeing an increase in overall numbers of allegedly sham marriages being reported, we are seeing a shift in the kinds of case being reported towards cases where the marriage sponsor is a non-British European economic area national. In fact, 61 per cent. of the section 24 reports received by the immigration service in May involved a non-British EEA national. Why should that be the case? It is because anyone marrying an EEA national does not need to obtain leave to remain in the UK, as a separate step, on the basis of their marriage. As a direct consequence of the marriage, they have an automatic right of residence.
That is because the rights of residence obtained through marriage to an EEA national are the subject of European law rather than United Kingdom domestic legislation. European law dictates that anyone marrying an EEA national who is exercising treaty rights in another country—this goes for someone marrying a British national exercising treaty rights in Spain or France, for example—thereby has the right to reside in that country irrespective of their immigration status at the time of marriage.
1220 It is clear that where there is abuse of our existing immigration controls, we must move to stop it. We must ensure that our immigration rules are robust enough to prevent people from using sham marriages to get around those rules. That kind of abuse works to the detriment of everybody—including, of course, those who enter this country legally through the managed migration channels. The evidence, albeit necessarily having imprecisions. clearly shows growing abuse. That evidence, along with the Government's clear duty to stop such abuse, is the counter-argument to the view of the Joint Committee on Human Rights that these provisions are disproportionate to what it accepts is the legitimate aim of preventing sham marriages.
Britain has always rightly prided itself on being a comparatively liberal society in respect of the laws surrounding marriage and other similar civil acts. Broadly speaking, we have been happy to leave the policing of this aspect of the law to professional registrars or churches. They do this with a comparatively light touch, and with little interference from central Government. We are committed to retaining that overall balance, but it is the duty of the Government to act to protect the integrity of the institution of marriage, and the balance between light-touch regulation and rules to prevent abuse will sometimes have to change to cope with the challenges and realities of today's world. Not only is that the view of the Government, it is the view powerfully expressed by registrars themselves. As I say, I have met them on more than one occasion to talk through those issues.
I have already set out how the immigration service has responded to the challenge of increasing evidence of abuse by stepping up its enforcement effort, but we have to accept that enforcement alone cannot solve the problem completely. Sending immigration officers to register offices has real impact, as we have seen in the last year, but we cannot rule out the possibility of displacement to other offices, and it would be unrealistic and disproportionate to have staff attending every single wedding.
Similarly, while it is possible for the immigration service to follow up marriages and to try to establish whether they are genuine and persisting, it is an extremely resource-intensive process and, as the law stands, the burden of proof lies with the Government to show that the marriage is not genuine, which is not always easy. The better solution is therefore to make it more difficult to enter into a sham marriage in the first place—indeed, to make people feel that there is no point even in trying. The amendments that the Government support in this group are intended to do just that.
Existing marriage legislation in England and Wales requires that, where a marriage is intended to be solemnised on the authority of certificates of a superintendent registrar, the parties to the prospective marriage must first give notice of that marriage to such a registrar. The amendments that the House is considering today build on that position and have been worked through in close co-operation with the registrars.
Subsection (2) of the proposed new clause in Lords amendment No. 21 requires that where a marriage involves a non-EEA national, both parties will be required to give notice of their wedding to the superintendent registrar of a designated registration 1221 centre. I must make it clear that that requirement will not restrict a couple from eventually getting married. It applies only where they give notice of that marriage. Once the notice has been accepted, the couple will be free to get married wherever they wish. The provisions will not infringe a person's ability to get married in a church, in a local mosque or, indeed, anywhere else that they wish to wed.
§ Mr. Browne
There will be a requirement for people to attend in person. A good amendment, consistent with Government policy, was tabled in the Lords, which requires the attendance of both parties before the registrar. I shall come to that in a moment. Although no definitive decisions have been taken, I am considering the possibility of about 70 such areas about the country, which I think will be enough to satisfy the needs of the people who wish to be married.
Restricting the capacity to authorise such a wedding to a reduced number of designated centres will allow the immigration service to implement its enforcement effort in a more concentrated area and allow intelligence and expertise on marriage abuse to be built up in designated centres. It is not just that registrars, whether properly trained or not, can see that something dodgy is going on in front of them, as the hon. Members for Winchester (Mr. Oaten) and for Woking suggested. It is pretty obvious if the bride and groom have never met—perhaps because the bride arrives 10 minutes early and does not know whom she is marrying—or if money changes hands in the back of the register office.
Part of the enforcement effort, however, is about building up intelligence to allow those who are behind the process to be revealed and brought before the courts for the criminal offences that they are perpetrating. We do not want to inconvenience genuine couples any more than is absolutely necessary, and I and my officials are working closely with registrars to identify the most suitable number of designated centres to assist in the enforcement effort while minimising the inconvenience caused. At the moment, we are considering the possibility of about 70 such centres, as I said.
In line with an amendment suggested by Baroness Anelay, parties to a marriage will be required to give notice of their marriage together at the designated centres. That will give registrars the fullest possible opportunity to identify any suspicious behaviour, such as how couples interact—the kind of behaviour that currently leads registrars to report couples under section 24. The crucial difference under the new provisions is that registrars and the immigration service will be better able to take appropriate action before the couple can wed.
Subsection (3) of the new clause requires that before notice of marriage involving a non-EEA national can be entered into the marriage book, the superintendent registrar must be satisfied by the provision of specified evidence that the non-EEA national has entry clearance for the purpose of marriage, has written permission from the Home Secretary, or is in an exempt category.
1222 The requirement in new subsection (3)(a) to have entry clearance expressly for the purpose of marrying refers to entry clearance for fiancés and marriage visitors. Applications for such entry clearance will continue to be considered in the usual way under paragraphs 290 and 41 respectively of the immigration rules. It is envisaged that written permission from the Secretary of State, as provided in new subsection (3)(b), will normally be granted if a person has been granted more than six months leave since entering the United Kingdom and where that leave is extant. In addition, we would grant an application if it is considered that it would be unreasonable to expect a person to return home or travel abroad and apply for entry clearance.
The written permission will be known as a certificate of approval and all applications will be considered and determined in accordance with published guidance, which will set out the factors to be taken into account by caseworkers when determining such applications. If an application for a certificate of approval is refused, applicants will be free to challenge the decision in judicial review proceedings—for example, on the well understood and well known Wednesbury ground of unreasonableness.
New subsection (3)(c) confers on the Secretary of State the power to exempt in regulations categories of person from the requirement for entry clearance or for Home Office permission. We have not included those categories in the Bill as we think that secondary legislation would be a more suitable vehicle for introducing the exemptions, allowing full opportunity to consider changes in trends and future changes to the immigration rules. However, at this point we envisage that any person with settled status in the United Kingdom will be exempted under the provision.
As a result of the new measures, we would expect an increase in the number of forged documents being presented to registrars—both in respect of the new certificate of approval to be issued by the Home Office and in respect of documents confirming nationality—as those engaged in sham marriages seek to avoid having to apply to the Home Office for a certificate of approval.
After three months of experience as a Minister in the Home Office, I doubt very much whether there is any organisation better placed than the immigration service of the United Kingdom to identify forgeries. Those in the service have developed expertise in that area over the past number of years that is second to none. UK immigration officers with that expertise are now travelling the world, helping other immigration services to identify forged documents.
I am grateful to the hon. Member for Woking for his suggestion, but he can rest assured that, given the experience that we have in the Home Office and in the immigration service of how to combat forgeries, it was always our intention that the permission document would contain several security features. We intend that it will be granted in the form of a vignette. That will contain the same security features as our leave-to-remain vignettes, and will be equally secure. I am not sure at the moment whether it will have a specific identifying number, but it will have significant security features. Registrars at designated centres who do not have the ability at present will be trained to identify 1223 those documents, including fake EEA documents, and will be well placed to gain experience in identifying them.
I want to make it very clear that the Government do not intend the new provisions to lead to a return to the rightly unpopular primary purpose rule. The principal objective of that rule was to attempt to judge whether the applicant was entering into marriage primarily to gain the right to reside in the United Kingdom. People get married for many different reasons, and it is not the Government's business to interfere in what those reasons are. The new provisions are not designed to do that, but they are designed to interfere with attempted avoidance of immigration control. They do not affect the grant or refusal of entry clearance, as the primary purpose rule did. They are simply intended to make it more difficult for those who are seeking to enter into a marriage for the purpose of avoiding immigration control so to do.
Hon. Members may be aware of the concerns of others that the new requirements are unnecessary in the light of existing provisions. The new requirements in subsection (3) of Lords amendment No. 21 are designed to prevent persons who are illegally in the UK, or in the UK on a short-term basis, from marrying where it is reasonable to expect them to return home and to apply for appropriate entry clearance.
Provisions in paragraph 284 of the immigration rules, as amended by the Government in April last year, require that anyone applying for leave to remain on the grounds of a marriage to a British citizen or a person settled here must themselves have extant leave to remain in the UK, and must either have entered as a fiancé or have been granted at least six months' leave since the date they were admitted to the United Kingdom. Where a person does not meet those criteria, they are expected to leave the UK and apply for entry clearance as a spouse.
The provision does not, however, apply to spouses of EEA nationals exercising treaty rights in the UK. In those cases, it is the act of marriage that gives a right of residence. As I have already stated, those marrying an EEA national do not need separately to obtain leave to remain on the basis of that marriage. They get that automatically. That is because the right of residence obtained through a marriage to an EEA national is the subject of European law, not domestic law.
The new provisions have been framed to apply both to those wishing to marry British citizens, and to those wishing to marry other EEA nationals. It is not unusual for a person to have dual status in the UK as both an EEA national and a person settled here under the immigration rules—Irish nationals being a prime example of that. If we were to apply the new provisions only to those persons marrying EEA nationals, we would leave the system open to abuse. The intended spouses of persons who hold such dual immigration status would be free to present themselves as the fiancé of a person with settled status in the UK, forgoing the requirements applying to EEA nationals, but then as soon as they were married they would automatically gain the right to reside in the UK as the spouse of an EEA national.
1224 Moreover, we do not believe that we are placing too great a burden on the intended spouses of British citizens by requiring that they have more than six months' leave or entry clearance as a fiancé. Under paragraph 284 of the immigration rules, they are already required to meet that requirement in order to apply for leave to remain. The new provisions require simply that they provide for that in advance of their marriage, rather than in advance of their leave to remain application.
§ Mr. Browne
I shall come to that shortly.0 If a person would not otherwise have intended to remain in the UK after their marriage, they would be free to apply for leave to enter as a visitor for the purpose of marriage. There is no unnecessary restriction on such persons.
By refusing permission to marry to those persons with less than six months' leave in the UK, we will prevent non-EEA nationals from legally entering the UK on a short-term basis, only for them then to enter into a sham marriage with an EEA national and thereby gain the right to stay in the UK. If a person is entering the UK for the purpose of marriage, the Government expect them to apply for entry clearance as a fiancé or marriage visitor. To answer the hon. Gentleman's question directly, it will cost people no more to do that than to go through the propel channels. Likewise, if a person enters as a visitor and subsequently meets someone whom they wish to marry, we do not believe that it is unreasonable for them to return home and apply for suitable entry clearance, given that their initial leave was granted on the ground that they would do precisely thatéreturn home when it expired.
Concerns were expressed in another place about the prospect of registrars being turned into pseudo-immigration officers. I assure hon. Members that the Government have no intention of creating such a burden. By requiring non-EEA nationals to have either entry clearance as a fiancé or marriage visitor, a certificate of approval, or indefinite leave to remain in the United Kingdom, we are precisely limiting that burden on registrars. For that reason, we do not believe it would be sensible, as was suggested in the report by the Joint Committee on Human Rights, automatically to exempt all persons who meet the criteria required for certificates of approval under subsection (3)(c). It would be unreasonable and potentially unworkable to expect registrars to inspect the passports of all non-EEA nationals giving notice of a marriage for valid leave to remain, as that would require registrars to become familiar with every stamp, every vignette and every category of leave to remain. By creating the requirement for persons to apply first to the Home Office for a certificate of approval or to hold entry clearance for the purpose of marriage, we have considerably reduced that burden.
At this stage, let me deal with two further objections made by the Joint Committee on Human Rights. The Committee suggested that the proposals might be 1225 vulnerable to accusations of discriminating, first, on the ground of nationality, and secondly—by virtue of exempting Church of England marriages—on the ground of religion. Each accusation lacks adequate and objective justification. As Lord Rooker made clear on Report in another place on 28 June. we are not seeking to discriminate against people who are members of a religion other than the Church of England.
There is no evidence of sham marriages taking place in the Church of England and the Government do not feel that abuse is likely in future. People who wish to marry in their parish church are normally known to the priest of the church. Although It is not a statutory requirement, there is an expectation upon couples to meet the priest to talk through why they wish to marry and to discuss church proceedings. The Government believe that that acts as a real disincentive to parties intending to engage in a sham marriage, and that it will continue to do so. The Marriage Registration Act 1836 provides for marriage in the Church of England and the Church in Wales to take place after either ecclesiastical preliminaries or civil preliminaries. The vast majority of Anglican marriages take place after ecclesiastical preliminaries—banns or common licence. All other marriages, whether civil or by other religious rites, must be preceded by civil preliminaries. The discrimination is therefore not new: that has been the position since the 1836 Act introduced civil marriage and civil preliminaries, and the Government do not feel that it is appropriate or necessary to change the position at this time.
As for the suggestion that the provisions discriminate on the ground of nationality, the crucial point is that the provisions are expressly aimed not at people of a certain nationality or nationalities, but at people who use marriage as a means of circumventing immigration control. Although we accept that we are treating persons who are subject to immigration control and their partners differently from other persons wishing to get married, it would be unlawful and disproportionate to impose such obligations on those couples where neither party is subject to immigration control, because there is no rational connection between the measures and those who are simply not subject to immigration control.
Lords amendments Nos. 23 and 25 contain broadly similar provisions for Scotland and Northern Ireland respectively. As there has been far less evidence of abuse in Scotland and Northern Ireland. these amendments have been drafted so that written notification of a marriage in Scotland and Ireland will continue to be an acceptable format. However, we will nevertheless require evidence under subsection (3) of the new clauses by way of a certificate of approval or otherwise, as is the case in England and Wales.
If there is evidence that the problem is being displaced to Northern Ireland, the Secretary of State will introduce the power laid down in subsection (2)(b) of amendment No. 25 and both parties will be required to attend the centres together in prescribed cases.
Scotland has a growing and lucrative marriage tourism industry, in which couple travel to Scotland as visitors to get married in scenic surroundings, with no intention to remain in the UK thereafter. The Government do not wish to jeopardise this industry and so we will not require persons to attend the centres in 1226 person, as is the case elsewhere in the UK. If there is evidence of abuse, the Scottish General Register Officer will move swiftly to designate register offices according to subsection (2) of amendment No. 23.
Lords amendment No. 27 grants the Secretary of State the power, by regulations, to charge fees for applications for written permission to marry in the UK. These applications will be charged for on a cost-recovery basis. Although we are not yet in a position to put an exact figure on this charge, we estimate that it will be similar to the charges for leave-to-remain applications. Applications for entry clearance as a fiancé and marriage visitor will continue to be charged at £260 and £36 respectively.
I will deal briefly with the amendments tabled by the official Opposition. Under amendment (a) to Lords amendment No. 21, parties to a marriage involving a non-EEA national would be able to give notice of a marriage in a designated centre only if they had been resident in that registration district for 14 days, rather than seven as at present. The Government do not feel that such a requirement is necessary. We do not believe that any purpose would be served by increasing this period and cannot support the amendment.
Amendment (c) to Lords amendment No. 21 would require superintendent registrars in England and Wales to maintain a record of refusals of notices by non-EEA nationals. Registrars would not accept notification of a marriage if they could not enter it into the marriage notice book. They would not be able to accept a notification unless the person met all the criteria—age, residence and marital status, for example. Only when those criteria were not met would a registrar not take notice of the marriage, and this is a question of an inability to do so rather than a refusal on their part. In this sense, registrars are not actually capable of refusing to accept notice of a marriage. Keeping a record of everyone who approaches a registrar but does not meet the criteria would prove to be a time-consuming task and would not help in combating sham marriages. For these reasons I will not be able to support the amendment. I hope that hon. Members will feel able to withdraw their amendments.
I do not feel that I need to summarise what I have had to say. I will close by reiterating my position, which is that the House agrees with the Lords on Government amendments Nos. 1 to 21 and 22 to 69 but disagrees with the Opposition amendments (a) and (c) to Lords amendment No. 21.
§ Mr. Malins
This has been a useful debate and I am grateful to the Minister for the careful way in which he has explained the Government's position. However, there are one or two matters that I hope to draw to his attention. Despite his full and helpful reply, I had hoped that he might have thought that there was a little merit in my amendment concerning 14 days. If there is not much point in 14 days, it is worth asking what is the point of seven days. I assume that the purpose of seven days is to—
Quite; it is existing law. Somebody at some stage in the past must have justified seven days. I suppose that they did so on the basis that it is important that there be a residence requirement.
1227 I think that we all agree that there should be a residence requirement. I thought that it would be quite a good thing to strengthen the requirement by making it 14 days. The Minister rightly pointed out, and perhaps he will confirm that I am right, that in the Church of England, where two parties wish to get married, one of them at least has to demonstrate quite a substantial link with the parish concerned—indeed, not just a link but a residence. My father is a vicar, and I am not entirely sure that any inquiry into the validity of my own marriage—he married my wife and me—would be productive. I remember that there was some strict residence requirement, and my father may have had to finesse the position very slightly. It was a long time ago, however, and I would not want to get him into trouble. [Interruption.] I probably just did so, but that is another question.
It came to my notice recently—I do not expect the Minister to deal with this point now—that once a marriage licence is granted, it is valid for one year. That strikes me as quite a long time, and I wonder whether the Home Office would consider taking a look at that issue.
The Minister's comments about the permission document and the watermarks, holograms and so on were very helpful. There are undoubtedly experts in the Home Office who will draw up some procedure that is as near to watertight as possible. I hope that he might pat me on the back for my personal idea of the unique serial number specific to a particular application.
§ Mr. Browne
I reassure the hon. Gentleman that, if we decide to number the certificates of approval, I shall ensure that he is given the credit for that very unusual suggestion.
Such is the Minister's charm at the Dispatch Box this evening that my hon. Friends and I, who were determined at one stage to test the opinion of the House on a number of amendments, have been persuaded by his arguments that it might not be appropriate to do so.
This has been a good debate, dealing with a problem to which I think the Government are attending. I wish them good luck in doing so, and I hope that they will involve a number of parties in the discussions. The clause was amended in another place, and it is now a good one. Apart from my 14-day proposal, even I can think of no way of improving it.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lords amendment No. 21 agreed to.
Lords amendments Nos. 22 to 27, 19, 20, 32, 40,41, 33, 34, 1 to 13, 35 to 39 and 63 to 69 agreed to.
§ The Minister for Energy, E-Commerce and Postal Services (Mr. Stephen Timms)
I beg to move,That the programme order of 7th June 2004 in relation to the Patents Bill [Lords] be varied as follows—Consideration and Third Reading1. Paragraphs 4 and 5 consideration and Third Reading) shall be omitted.2. Proceedings on consideration and Third Reading shall (so far as not previously concluded) be brought to a conclusion at 1.30 p.m. on the day on which they are commenced.
The motion amends the allocation of time for proceedings on consideration and Third Reading of the Patents Bill set by the programme order of 7 June, and it is a small, technical measure that commands widespread support on both sides of the House.
In order to enable the Bill smoothly to complete its passage, time has been found this Wednesday to take the remaining stages in the House. The motion therefore deletes the relevant paragraphs of the earlier motion relating to the allocation of time for proceedings on consideration and Third Reading and makes new provision consistent with the time available on Wednesday. I hope that those arrangements will command widespread support on both sides of the House. The motion is set out on the Order Paper, and I will not rehearse its content. It curtails the allocation of time for consideration on Report and Third Reading provided by the programme order of 7 June, and it is my pleasure to commend it to the House.
Question put and agreed to.