Nationality, Immigration and Asylum Bill

Public Bill Committee, 21 May 2002.

Standing Committee E

Clause 59 - Adjudicators

Angela Eagle (Labour, Wallasey)

I beg to move amendment No. 202, in page 33, line 6, leave out 'shall' and insert 'may'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to take Government amendments Nos. 203, 206, 204 and 205.

Angela Eagle (Labour, Wallasey)

The clause relates to the appointment and functions of adjudicators, and is designed to replicate the effect of section 57 of the Immigration and Asylum Act 1999. It requires the Lord Chancellor to appoint adjudicators, as now, and sets out the criteria for appointing them and the functions that he may assign to them. It also requires him to appoint a chief adjudicator, as now, and requires the chief adjudicator to perform such functions as the Lord Chancellor may assign. It will allow the Lord Chancellor to appoint a deputy chief adjudicator, who will be able to act for the chief adjudicator if he or she is unable to act or is unavailable. The deputy chief adjudicator will also be able to perform such functions as the chief adjudicator delegates or assigns.

On Amendment No. 206, schedule 4 makes further provision about the Immigration Appeal Tribunal and follows on from clause 78, which provides for the continuation of the tribunal. It restates schedule 2 of the 1999 Act, but with the important addition in paragraph 3 that the Lord Chancellor is required to appoint as president of the tribunal someone who holds, or has held, high judicial office. We propose to amend the provisions that apply to a deputy chief adjudicator who acts for the chief adjudicator or president if he is unable to act or is unavailable. That will retain the current procedure. The amendment reflects more accurately the intent of paragraph 2(3) of schedule 2, and paragraph 1(4) of schedule 3 to the 1999 Act.

On amendment No. 203, schedule 3 follows on from the clause, which sets out the criteria for appointment. It makes provision for the terms of office for adjudicators, the appointment of staff, and remuneration, and replicates the effect of paragraphs 3 to 7 of schedule 3 to the 1999 Act, although paragraph 6(2) is restated in the clause.

Amendment No. 204 refers to schedule 4. Amendment No. 205 also refers to schedule 4, and relates to the definition of a legally qualified tribunal member. It ensures that all persons appointed as legally qualified members of the tribunal have legal or

other experience that makes them suitable for appointment.

The amendments clarify that the Lord Chancellor has the power to pay such remuneration, allowances and expenses as he may determine. They also ensure that he has the power to pay allowances to staff, adjudicators and tribunal members.

Humfrey Malins (Conservative, Woking)

I welcome you to the Chair, Mr. Hurst. There is a slight end-of-term feeling about this morning.

Government amendment No. 205 deals with the Lord Chancellor's ability to appoint one ''legally qualified'' member of the tribunal. Schedule 4 contains a definition of a legally qualified person. The provisions in paragraph 12(a) to (c) are understood, but sub-paragraph (d) says that a member of the tribunal is legally qualified if he

''is appointed by the Lord Chancellor as a legally qualified member.''

Under amendment No. 205, however, the Lord Chancellor can appoint as a legally qualified member someone who is not legally qualified in any respect. That point is incontrovertible. I am sorry to labour it, but let us imagine that the Lord Chancellor takes the view that person X has other experience that makes him suitable for appointment. How can he appoint him as a legally qualified member when he is not legally qualified? There is no answer to that question, but I ask the Minister to produce one.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There is merit in having the job done by people who are not technically legally qualified. There is no argument about that. However, as the hon. Member for Woking (Mr. Malins) says, they should have other relevant experience, such as significant work in the immigration field. They may have given advice or worked in a solicitor's office, although not as a solicitor. They may have worked for a reputable organisation in this field, although they are not technically lawyers or otherwise legally qualified.

Humfrey Malins (Conservative, Woking)

Someone could, for example, have been a non-remunerated trustee in one of the great organisations and have tons of experience, although it has nothing to do with the law.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

A civil servant, for example, who knows the law like the back of his hand, might now want to do something else. Opposition Members are not against the idea that people who are not lawyers may be involved, just as we have never been against the idea that judges should be drawn only from barristers. We must have a broader range of people in judicial and semi-judicial jobs, but I hope that the Minister understands that the definition should be redefined, probably on Report, so that the Bill refers to legally qualified or other appropriate people.

Angela Eagle (Labour, Wallasey)

The Lord Chancellor may appoint someone with other relevant experience. Hon. Members have offered their thoughts on who that could be, and I welcome their recognition that other relevant experience might assist the work of the tribunals. Such experience tends to mean that someone has a law degree, for example, but has never practised. People may have qualified abroad, in

other jurisdictions. They may have been involved in the immigration field as academics or served in that sphere abroad in a judicial or quasi-judicial capacity.

The number of people who currently fall into that category is tiny. This provision is no different from what was in the 1999 Act, which has worked perfectly well. That is what the formulation of words read out by the hon. Member for Woking means in practice. Clearly, it is for the Lord Chancellor, when he makes appointments, to ensure that other experience is relevant. That is what the phrase means, so I do not think that there is any disagreement between us. The definitions in the legislation have worked well for two years, and we see no need to change them.

Humfrey Malins (Conservative, Woking)

There is nothing between us in the sense that we are content for people with relevant experience, gleaned from a variety of activities, to be appointed. However, those people are in a separate category from those who are legally qualified. It is no good the Bill saying that they are suitable for appointment as a legally qualified person, because they are not legally qualified. They may be suitable for appointment, but surely the Minister will accept that it does not matter how well a system has worked in the past. Something often works even though wording is inaccurate or misleading. Does she accept that we must address that point on Report so that we can distinguish between those who are legally qualified and those who are not, rather than saying that everyone is legally qualified, including those who are not?

Angela Eagle (Labour, Wallasey)

I do not want to dance on the head of a pin, but I fear that I will have to. My understanding of the term ''legally qualified'' here is that it refers to the seven-year general qualification as defined by the Courts and Legal Services Act 1990. The people may be legally qualified, having received law degrees or practised in foreign jurisdictions, but they are not legally qualified under the terms of the 1990 Act. I suspect that that is what the phrase means. Such people are legally qualified in general parlance—the hon. Gentleman or I would regard them as legally qualified, because although they may have not practised or may have qualified in another jurisdiction, they have legal expertise. However, they are not legally qualified to appear before the courts before they have either done the seven-year general qualification or completed a relevant conversion course.

That is the pin on the head of which we are dancing. There is nothing between the hon. Gentleman and me in practical terms, but I suspect that that is the meaning of the phrase that he referred to in schedule 3.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Part 5 concerns the process of appeals. We start from the basis that we have a system in which immigration officers, either in this country or abroad, make initial decisions. Depending on what the decision is and where it is taken, a first stage in an appeal process can start, and adjudicators are most

often the people involved at that stage. Later, we will debate the next stage, which is the tribunal, in which more than one person adjudicates. Like all other tribunal systems, it comes in the general realm of legal jurisdiction, so the case can re-enter the court system at a higher level for further appeal. Often, the law is made above the level of the Immigration Appellate Authority, for example at the Court of Appeal or House of Lords.

That process is fundamentally right. It is right that an officer who deals with the job on a day-to-day basis should take a first decision. Families in my constituency have rung up about relatives who have arrived at Heathrow, Gatwick or Dover, and my experience is that immigration officers are reasonable in most cases. For example, such relatives may have been refused entry, but if there is no security risk or risk of breach, we have argued that they should be allowed in on concession for a day or a week pending a flight to take them back. Immigration officers are normally fair, understand the case and act appropriately, taking compassionate reasons into consideration.

I am grateful to the many officers whom I have had to trouble on such matters, often at weekends or bank holidays, and to staff in the Home Office, including the duty person whom I have occasionally woken up late at night or early in the morning. I still have cordial relations with them, and happily there are several, so I am not always contacting the same person.

I also want to pay tribute to the adjudicators. I have been with constituents to hearings and appeared before them. I hope that the Minister agrees that we must start from the basis that they should be allowed to decide the matters that appear before them. We will come later to amendments that would give the adjudicator or the appeal tribunal the power to manage their affairs. I hope that we do not remove the discretion of those who hear a case and who are trying to do justice. One of the criticisms that I will make in today's debate is of the Government's creeping intention to remove that discretion from the adjudicator and the tribunals and to hem them in by prohibiting them from doing what in justice they should be allowed to do—such as looking at hugely relevant evidence that was not available when the first decision was made.

The issue is one of keeping a system that works, by and large, and offers a series of opportunities for review. That system should be streamlined so that all the issues are brought together and an appellant does not have one hearing on one issue before an adjudicator one day and then have to come back for another hearing on another issue before another adjudicator the next. That would clearly be nonsense. The Government—I do not include the Minister—have a perverse and obsessive belief that going to court for a judicial review of administrative decisions is a hindrance to government. However, whether one is dealing with immigration, asylum or any other matter, it is fundamental to our constitution that the court, not Ministers, is the place of last resort. In a country with no written constitution, it is vital

that the independent judiciary at all levels makes decisions on the law and the facts. I hope that all hon. Members will sign up to that. One of my great concerns about the current Administration is the creeping wish to take more decisions centrally.

Alan Hurst (Labour, Braintree)

Order. The hon. Gentleman is going a little wide of the clause stand part debate.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am trying to stay within it, but I shall respect your boundaries, Mr. Hurst.

It is also important that people realise that not all the material relevant to cases may be available at the beginning of the process. All my experience, and that of my advisers, shows that the fundamental flaw in the system is not that adjudicators or immigration appeals tribunals do their jobs badly, but that there are inadequate resources to allow the current system to work well. For example, adjudicators often adjourn a case because the Home Office has not got its act together. Adjournments occur more often because the Home Office and the relevant papers, rather than the applicant, are not ready.

Of course there are people who will abuse the system, but if the Government are to justify taking away the discretion of adjudicators, they should undertake the work that shows the cause of delays in the system. There is always a tendency to believe that delay is caused by the lawyers of applicants or appellants, just as the Government take the view that it is always the fault of the defendant and the lawyers that court cases take so long. That is often not the case. It is often the Crown Prosecution Service, not the defendant, that is not ready. The Home Office has the opportunity to improve the system, and if it needs more money to do so, it must bid for it. It can improve the system by ensuring that its staff have files when they need them, serve the evidence when it should be served and are able to deal with matters raised by the applicant.

I hope that we can recognise that the weaknesses in the system are not simply caused by applicants and their lawyers or representatives spinning things out to their advantage. That happens, of course, and I have dealt with many such cases and have been as robust as anyone in telling people the score. However, the weaknesses often result from lack of resources. Let us recognise and pay tribute to the good job that adjudicators do, but let us not remove their discretion and that of the tribunals and the courts in the interest of a system, which might in theory be more efficient, and could be more efficient if the Home Office had the resources, but which might prejudice a lot of justice on the way.

Angela Eagle (Labour, Wallasey)

We will deal with many of those points in detail later today. It is important first to establish what we want to achieve with part 5. Others may leap up and disagree with me, but I would sum it up as trying to get a streamlined system in which there is a lot more certainty about appeal rights and to make the one-stop appeal more of a reality than we managed in 1999. Some good advances were made then, and the Bill consolidates and builds on them, particularly on certification. We want simplification, we want

streamlining and we want to ingrain the one-stop process for appeal into the system.

I agree that there are decisions by caseworkers, there is access to the adjudicators, there is access on appeal and there is further access with statutory review on points of law to higher courts. No one can disagree with that. We also want to get a system where it is less possible for the unscrupulous to string along the system and to keep bringing up new issues to stymie the decision. The hon. Member for Southwark, North and Bermondsey (Simon Hughes) must face up to that.

We all wish to see asylum cases heard through the proper process, in a fair and simple way, as quickly as possible. Currently we are talking about six months. As I said earlier, nearly 50 per cent. of new cases are heard at first level within two months and 45 per cent of appeals are heard within four months. That is the 2 + 4 = 6 timing that we discussed. We wish to speed that up, too, which is why we are talking about accommodation centres and getting that process going in a way that retains fairness. The hon. Member for Woking is even more optimistic and thinks that it can be done in six weeks. In some cases at Oakington we have shown that it is possible, but it will not be possible in all cases.

It is important that we determine where the problems are in the current system and how to iron them out. That is what we are trying to do. The hon. Member for Southwark, North and Bermondsey said that we had a perverse obsession with judicial review. I do not think that we do. However, we have evidence that judicial review hearings are being used in a way that delays and incurs costs. In 2001–02, the average monthly figure for immigration and asylum cases received for judicial review was 220. From July to December 2001, 1,144 applications were received: only 149 were granted and 884 were refused.

Our new approaches in part 5 aim to deal with the tactic that is increasingly used to delay cases. The hon. Gentleman will see from the figures for applications granted and refused that some 80 per cent. do not have merit and make no progress. However, they achieve their objective of delaying progress on the decision. We must see what we can do to prevent that, while not denying individuals access to a fair review of what is going on.

The hon. Gentleman was most unfair to the Home Office in saying that it caused the majority of adjournments. The figures show that in the first three months of this year, there were 4,472 adjournments, of which 60 per cent. were due to the actions or failure to turn up of the appellants or their legal representatives. Only 15 per cent. were due to the Home Office, and we are working hard to reduce that percentage even further; 25 per cent. were due to the Immigration Appellate Authority, and Judge Hodge is working hard to reduce that figure substantially. Our approach should be to take account of such evidence, which shows that the majority of adjournments are caused by appellants and their legal representatives rather than by the administrative system.

I have said little about remuneration or about the administrative arrangements that the clause will allow

the Lord Chancellor to make, but I hope that hon. Members will accept the clause's sensible approach to the system.

Humfrey Malins (Conservative, Woking)

Following what the hon. Member for Southwark, North and Bermondsey said, Conservative Members support a streamlined, efficient and fast appeal system. In my experience, the case that applicants are trying to play the system tends to be exaggerated. It is often said that defendants try to play the criminal justice system, but only a small proportion do so: many of the adjournments and administrative hiccups in the immigration and criminal justice systems are caused by the Crown, the Home Office or the prosecutor rather than the person concerned. Although I am all for improving efficiency, the powers to enforce efficiency and to be tough and harsh are best left to the judiciary in both systems rather than to an over-mighty state.

Angela Eagle (Labour, Wallasey)

I have already told the Committee that the ratio of delays caused by the appellants to those caused by the system is 60:40. Judge Hodge is working effectively to bring down the 25 per cent. of delays attributable to the Immigration Appellate Authority. The effectiveness of some of the new administrative arrangements being put in place to reduce the number of adjournments has already been demonstrated. However, the numbers need to be driven down further. We at the Home Office are doing what we can to reduce the 15 per cent. for which we are responsible.

We must also try to reduce the 60 per cent. caused by appellants or their legal representatives, or at least remove the incentive, or lack of a comeback, that may currently be in place if adjournments are constantly asked for, because that is a fairly obvious delaying tactic. By no stretch of the imagination are all applicants there to delay as much as possible—many want their cases heard quickly—but we must limit the potential for delay, which often comes from the more unscrupulous legal representatives who give bad advice to appellants, and the office of the Legal Services Commission is an important piece of the armoury in that respect.

Later, we shall debate matters such as wasted cost orders and the introduction of incentives to discourage legal representatives from indulging in such behaviour, as at present there is no comeback in that respect. We must narrow the opportunities for playing the system, although I do not say that the majority of appellants do so. Some are badly advised, and it is important for the integrity of the system to drive out such behaviour. The new administrative changes reduce the potential for playing the system.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This has been a useful debate on the first part of the system. I am sure that the Minister will pay due heed to the hon. Member for Woking, who has many years' practical experience of the system. His constituency is quite mixed; people assume that Surrey has a homogeneous white community, but Woking

certainly has not. He will have had the same experience in his constituency as many others of us.

I say publicly that I am happy to sign up to collaborate with the Minister and with Conservative Members to ensure that the systems reduce unwarranted and unjustified delays. When the present Foreign Secretary was Home Secretary he brought in nominees from Opposition parties to help to make Home Office statistics more coherent. Liberal Democrats happily played a part in that process, which is a sensible way of proceeding, and the more we can agree about that the better.

It is important to work on the basis of accurate statistics. I do not dispute the Minister's statistics; the figures showed that one sixth of cases that went to judicial review were successful, which is a significant number of cases that the court said had been handled improperly. That one in six cases would otherwise have resulted in a miscarriage of justice absolutely justifies having the right to take a case to the courts. I hope therefore that we are all signed up to that principle; we will later debate how to do it and whether there should be a judicial review or a different form of review.

My answer to the Minister's point about delay when matters go to judicial review is not to remove the right to judicial review of adjudicators' decisions but to put a time limit on them. I agree absolutely with the hon. Member for Woking that the time limit norms must be much more rigorous. As the Minister implied, that means that the Home Office must get its act together. The tribunal system should have the space, the staff—perhaps there should be more tribunal members—and the adjudicators to be able to do what is required.

There is no policy disagreement between us, although we may disagree about judicial or non-judicial review. However, there must be a method of escape if the administrative system fails, and the judicial system has proved that it is very good at developing administrative law and reviewing administrative decisions. I hope that we do not throw out that healthy baby with the unsatisfactory bathwater.

I agree with the Minister that legal and other representatives need a lot of improvement. I argued before the Bill was introduced that the people giving lousy advice should be rooted out. I spend much time extracting constituents from the hands of people who give bad advice—some of whom have never qualified and others of whom may be technically qualified but are hopeless—and trying to direct them to places where they can get decent advice. I repeat the controversial point that those solicitors' firms and practitioners who claim to be competent on asylum, immigration and nationality law should be certified. The Law Society argument is for self-regulation; I am not in favour of self-regulation for Members of Parliament, for the Law Society, the Bar Council, the General Medical Council or the police. Regulation should be by people who do not have a professional self-interest. I hope that the Government will consider my proposals and persuade the Lord Chancellor and the Parliamentary Secretary that if there is regulation

of those who do this work in the legal professions the system may be better and more efficient than it is at present.

Angela Eagle (Labour, Wallasey)

There are currently 75 full-time and 398 part-time adjudicators. We are planning to appoint another 70 full-time and 128 part-time adjudicators. That will increase the capacity so that we can hear appeals more effectively. I do not want the hon. Gentleman to leave the debate believing that we are denying people access to the courts on points of law. There is a statutory review, although the hearing will not be oral. The time limits are strict: the hearing must be applied for within 10 days, and held within the next 10 days. Those time limits will provide the access that he and I want, but without the delays with which the judicial review has landed us. There will be time for those debates later in the proceedings.

Question put and agreed to.

Clause 59, as amended, ordered to stand part of the Bill.

Schedule 3 - Immigration and asylum appeals: adjudicators

Clause 60 - Right of appeal: general

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 427A, in page 33, line 15, after 'immigration', insert 'or nationality'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to take the following amendments: No. 428, in page 33, line 17, after 'immigration', insert 'or nationality'.

No. 429, in page 33, line 38, at end insert:

'(l) refusal of naturalisation or registration as a British citizen.'

No. 258, in page 33, line 38, at end insert 'and ( ) decisions to remove.'

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We are now dealing with the right of appeal. We know that the Bill is getting long in the tooth and a little complicated when we start to get amendments with ''A'' after them. Although the provisions are generally welcome, amendments Nos. 427A and 428 propose an appeal system for decisions on nationality as well as immigration. Amendment No. 429 would add another decision against which there can be a right of appeal. As the Minister is aware, high-profile cases periodically fall into that category. We have all been well-behaved, as we have not mentioned a specific case, although we all know which one we are thinking about.

We discussed the criteria for turning down applicants. The Home Secretary may decide, for example, that they are not of good character. I am

comfortable with that entirely proper discretion, but it is good to have the ability to review it. I am willing, as always, to be told that this is not the right place, but I hope that the Minister will confirm that the Government sympathise with the proposition and will seek to accommodate it.

Amendment No. 258 would include the right of appeal against a decision to remove. In simple lay terms, there is currently a decision that a person cannot stay, and a decision about where they go. A topical example is someone who may be a political activist in Pakistan or India. If they are an Indian citizen and their political issue concerns their views on Kashmir, it might be held that we do not have to grant asylum and they should be able to go home, because India is a democracy. However, given their actions, they might be worried that they would be a risk if they went home. They might be a high-profile character.

In that case, they might want to appeal against a decision to remove them to the country from where they came, and unless they nominate somewhere else, that is where they are sent. Furthermore, circumstances might have changed by the time that the decision is formally taken. To take a similar example, if they lived in West Bengal, it might be much safer for them in the short term to go to Bangladesh. If they came from Tamil Nadu, it might be better for them to go to Sri Lanka rather than south India.

I do not want to over-elaborate the point, as it is fairly self-evident. People should have the right to an independent review of such a decision to remove. I hope that we give to the people in the two extra categories covered by the amendments the ability to get into the system and have their cases examined by an adjudicator. There is good authority that that is justified and possible for decisions to remove. It is not currently possible in this context for nationality decisions, but I hope that the Minister will accept the improvements that the amendment would make.

Humfrey Malins (Conservative, Woking)

Amendment No. 258 also concerns decisions that attract appeal rights and would insert decisions to remove into that group. Several respected bodies, including the Law Society and the Legal Action Group, have raised concerns about this issue. The Law Society has advised me that the Immigration Appellate Authority held in the Kehinde case in November 2001 that applicants served with removal directions have a right of appeal, notwithstanding that no new immigration decision has been made. However, the clause conflicts with the tribunal's approach and means a challenge to removal decisions will have to be carried out by judicial review, which as we all know is slow, cumbersome and expensive. It is therefore a less appropriate method with which to proceed. The Legal Action Group also regrets the absence of removal decisions as one of the decisions that attract appeal rights and, broadly speaking, lays out the same arguments as the Law Society.

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend the Minister set out clearly what we are trying to achieve in part 5, which is a streamlined system that makes the one-stop process more of a reality. I am

glad that Opposition Members have agreed that it is desirable to try to achieve that. The clause is an important part of the process, because it sets out the types of decision that attract a right of appeal on the grounds set out in clause 62, subject to the exceptions and limitations in clauses 66 to 77.

Part 5 will establish a new structured approach designed to avoid many of the difficulties that arose in previous legislation. I am sure that hon. Members are aware that appeals on immigration, asylum, human rights and race discrimination were dealt with in separate sections and therefore triggered in different ways. The new approach makes it much clearer that only one appeal arises from a primary decision in principle, and all relevant matters that the appellant wants to raise will be dealt with at that appeal.

There is little change to the categories of applicants who can appeal, or to the grounds that they can advance, but we have taken this opportunity to remove some categories of appeal where an alternative approach is available, or the appeal is a waste of time because the appellant cannot benefit.

We have extended appeals in deportation cases to those where the decision is taken following a court recommendation, but again the appeal will be a one-stop appeal, which will prevent the person from delaying removal. We argued previously that an appeal to the court, rather than an immigration appeal, was sufficient protection, but our extended one-stop procedure cannot apply to the courts, so we shall provide an immigration appeal but ensure that it is a final appeal.

Taken together, amendments Nos. 427A and 429 would create a right of appeal to an immigration adjudicator against the refusal to grant British citizenship by registration or naturalisation. We appreciate the concern about decisions where there is no formal right of appeal, but I remind the hon. Member for Southwark, North and Bermondsey that the case for an appeal is met to some extent by existing procedures and new provisions in part 1.

Clause 7 repeals the Secretary of State's statutory exemption from the common-law obligation to give reasons for his discretionary decisions. In practice, however, reasons are already given in all cases, and there is a long-standing policy of re-examining and, where it seems justified, reversing contested nationality decisions. Caseworkers have been given clear instructions on that. If maladministration is alleged, the Parliamentary Commissioner for Administration may be asked to investigate. Clause 7 removes the limitation on the power of the courts to review discretionary nationality decisions by enabling decisions to be subject to a normal judicial review. That will include consideration of the reasonableness of the Secretary of State's decision.

In general, however, we believe that no one has an absolute right to acquire citizenship of another country. In the United Kingdom, it is for Parliament to lay down the conditions for acquisition of British

citizenship and the rights and privileges that go with it. Under the British Nationality Act 1981, the route to British citizenship for foreign nationals is by way of an application for registration or naturalisation, and in most cases that is granted at the Secretary of State's discretion. Furthermore, as the hon. Gentleman said, that Act requires any applicant for naturalisation to satisfy the Secretary of State that he or she is of good character.

The decision to grant citizenship should be one for the Secretary of State. The introduction of a full right of appeal, as proposed in the amendment, would result in the transfer of that discretion to the appellate body. That would mean that whenever an appellate body took a different view from the Secretary of State on a particular case, a precedent would be set and the Secretary of State's hands would be tied—in not only that but future cases. It is proper to draw a distinction between a decision not to grant citizenship and a decision to withdraw citizenship already acquired or granted. After careful consideration, the Government have decided that they are justified in conceding a full right of appeal against deprivation of citizenship and allowing only judicial review of discretionary nationality decisions.

Amendment No. 258 goes against the principle of the one-stop system that was introduced in the 1999 Act and is taken up in the Bill. It would introduce decisions to remove as a further decision that attracts a right of appeal. However, ''decisions to remove'' is a vague term that covers a number of possible situations, some of which amount to a primary in principle decision that a person may not stay any longer; such decisions should be appealable, but those situations are already clearly covered in the clause, particularly in subsection (2)(h) to (j).

Other decisions could amount to a consequential decision to take steps towards implementing the first decision, against which there was a right of appeal. If the person has appealed and lost, or chosen not to appeal, there is no reason why there should be a further opportunity to appeal. The person can be in no doubt that he must leave the United Kingdom as a result of the primary decision, and if he fails to do so voluntarily it is fair that steps be taken to remove him without further prevarication.

For example, if a person is refused leave to enter the United Kingdom, the purpose of such refusal is to prevent entry. If he does not leave, removal directions must be issued to a carrier to remove him; that would amount to a decision to remove, but it is unacceptable that that should result in a further right of appeal. If it were, that would almost constitute a reward for failure to comply with the direction that had been sent and would be a way out of a decision that had already been upheld by an independent adjudicator, a tribunal and possibly a higher court.

However, where a decision to remove has been taken and further representations made, some will argue that a refusal to reverse the decision amounts to yet another decision to remove. The removal directions to carriers might sometimes have to be changed for technical or administrative reasons, such as the cancellation of a flight. The clause has been

carefully drafted precisely to avoid such difficulties. It brings together all the primary decisions that could attract rights of appeal. The one-stop system ensures that everyone who wishes to not only has the opportunity to draw attention to any matter that may result in an appeal right but may be required to do so. Having had the opportunity to appeal, they may not have another unless completely new circumstances have arisen. I hope that that explanation persuades the hon. Gentleman to withdraw the amendment.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Member for Woking may take a view on the matter that he and I jointly raised, but I am happy to consider the Minister's comments to see whether the three specific grounds in subsection (2)(h) to (j) cover all the usual eventualities. I appreciate where the Government are coming from on registration and naturalisation. I do not disagree with the Minister that there is an appeal process for the withdrawal of citizenship. I am also aware that part 1 clarifies the law and makes it catch up with practice, so that when decisions are made reasons are given.

I also accept that there is the judicial review option. However, the circumstances are slightly odd. The Government say that they are happy about judicial review but do not want an appeal system. We will later have a debate in which they will say that they are happy about the appeal system but do not want something in the traditional form of a judicial review. The Minister says that it is a judicial review, but it is only on the papers.

There are grounds on which it is perfectly proper for there still to be an appeals system. First, people can acquire British citizenship by marriage. That is normal. A non-British citizen who marries a British citizen is entitled to seek citizenship once a sufficient period has passed to show that the marriage is genuine. Again, I appreciate that some countries do not allow dual citizenship and others do. If an application for citizenship is turned down, there should be not just a judicial review option but an appeal option. That might prevent the judicial review option from having to be triggered.

Secondly, people apply for British citizenship on the basis of length of residence in this country. That is perfectly normal. Some people can be here all their life without wishing to apply, but an application will normally be considered after 10 years. In such cases it may be proper to have an appeals system as well as judicial review.

Finally, children might seek naturalisation or British citizenship in order to have the same citizenship as their parents, or vice versa, and other family groupings may apply. I ask the Government to think about that. I shall also think about the issue and take advice on what the Minister has said, but I believe that Ministers and civil servants should reconsider some cases, if not all of them. I would be happy if we could reach agreement before Report stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 3, in page 33, line 21, at end insert

'under section 10 of this Act'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to take Government amendments Nos. 251, 347, 355, 371, and 372.

Rosie Winterton (Labour, Doncaster Central)

Amendments Nos. 347 and 355 are clarificatory.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is good.

Rosie Winterton (Labour, Doncaster Central)

Yes, it is an excellent phrase.

The amendments are clarificatory in that, except in relation to the payment of a fee, the procedure for applying for and issuing a certificate of entitlement to the right of abode is presently unregulated. Clause 10 makes provision for regulation of those matters and redefines ''certificate of entitlement'', where that term occurs in the Immigration Act 1971, by reference to the new procedures. By referring to clause 10, the amendments will ensure that references to certificates of entitlement for appeals purposes in part 5 have the same meaning as under the 1971 Act.

Under amendment No. 251, if a person ceases to be a refugee and has his indefinite leave revoked, he will have a right of appeal against that decision and will be able to raise any grounds listed in clause 62 at the appeal. If removal is intended, a decision to remove by way of directions under section 10 of the 1999 Act will follow on immediately from the revocation of indefinite leave, in order to enforce departure. The issuing of removal directions will be consequential to the revocation decision. There can be no reason to justify it resulting in another right to appeal when all relevant arguments against removal may be raised at the appeal against the decision to revoke.

Removal may not take place while an appeal against revocation is pending by virtue of clause 57. If the appellant is successful at appeal, there can be no removal because indefinite leave will be restored. If a person's indefinite leave has been revoked but he is granted further leave and removal subsequently becomes possible, the leave can be curtailed or the person can be refused an extension when that leave expires. He will accordingly have a further right of appeal at that time. In those circumstances, the appeal will be against the decision to curtail or vary leave or to refuse to vary leave to remain.

As for amendments Nos. 371 and 372, a series of Government amendments have already been tabled to make all references to certificates of entitlement refer back to clause 10, which governs those certificates. The definition of the term is set out in clause 10(5). The definition in clause 89 is therefore unnecessary and potentially confusing. The reference to ''that Act'' in line 31 makes no sense if line 29 is deleted, so we need to amend line 31 to show which Act is meant.

I hope that I have given a comprehensive explanation of the Government amendments and that the Committee will accept them.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I always smile when Ministers are asked to table amendments to Bills that have only just

come from the same source as the amendments. That shows that the word processing is not yet under control. There is an argument for consolidation of legislation. I hope that Ministers will confirm at the end of the Committee stage that they will consider a consolidating Act, which they have done for other legislation, that will pull together the dozen or so pieces of immigration, asylum and nationality legislation. For those who are trying to work their way around the legislation, one Act is more likely to illuminate than 10 Acts spread over 50 years.

The Parliamentary Under-Secretary of State for the Home Department argued convincingly for a card to replace the various bits of paper showing the status of an asylum seeker to allow them access to facilities. We agreed that we need a system that prevents fraud and forgery, and is secure. The amendments seem fine, although I will read tomorrow's Hansard to see what the Parliamentary Secretary, Lord Chancellor's Department said to ensure that I still think that they are fine.

However, the amendments do not offer anything more firm and reliable than the bits of paper issued at various points in the certification process. I understand that someone may be given leave to remain or a direction for removal, which can be adjusted depending on the circumstances. I ask Ministers to consider a safer system. It is often to the applicant's advantage to have something that everyone recognises is valid. The Parliamentary Secretary may have constituency experience, as I do, of people who have gone to the local authority, benefits agency or social services department, but no one is clear about their status. They may be here legally, but may have interim status as they are between decision and adjudicator, or adjudicator and tribunal, or they may have an appeal against a direction for removal. What someone is entitled to as a result of that is often unclear.

Alan Hurst (Labour, Braintree)

Order. We are beginning to move to a Third Reading type of debate.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I was trying not to do that, but I could not have made that point elsewhere.

Angela Eagle (Labour, Wallasey)

Other than on Third Reading.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Indeed. I would be grateful if Ministers could consider the matter at the appropriate time, and respond.

Rosie Winterton (Labour, Doncaster Central)

Of course we are prepared to consider all those issues as we continue to develop ideas, but provision for identification needs to be in primary legislation.

Amendment agreed to.

Amendment made: No. 251, in page 33, line 31, leave out '10' and insert '10(1)(a), (b) or (c)'.—[Ms Rosie Winterton.]

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 399, in page 33, line 40, at end insert:

'(4) An explanatory statement of the reasons for refusal will be despatched to the appellant and the appellant's legal representative (if any) within one month from receipt of the notice of appeal for

non-settlement applications, and within three months for settlement applications.

(5) The respondent to an appeal under this section shall be stopped from presenting a case against the appellant if there is a failure to comply with the provisions in subsection (4).'

A glance at the title of the Bill reveals that the central word is immigration. My amendment is designed to focus our minds on immigration appeals. Some say, with much merit, that it is a great omission for a Bill with such a title not to introduce a measure that would facilitate and speed up immigration appeals, especially when there is considerable emphasis on speeding up asylum appeals. It is a great shame that students and people coming here for permanent settlement sometimes have years of their lives wasted and irreparably prejudiced through bureaucratic incompetence. On Second Reading, several hon. Members referred to immigration appeals. The hon. Member for Leicester, South (Mr. Marshall) said:

''There is one glaring problem that the White Paper and Bill fail to address: the appalling delay in the immigration system, and in particular, the time that it takes to appeal against a refusal to be brought before the Immigration Appellate Authority. The Government have shown, especially in asylum cases, that the process can be speeded up if there is the will to do so. I just hope that the Home Office shows the same regard to people who are waiting in the immigration queue for their appeals to be settled.''—[Official Report, 24 April 2002; Vol. 384, c. 367.]

That was one of several comments that focused on immigration appeals, which the Bill seems hardly to address.

Not long ago, I tabled a series of written questions designed to tease out some information from the Government. The answers show that although there are targets for entry clearance officers, they are not monitored. Worse still, there are not any targets, let alone monitoring, for how long an explanatory statement should remain in the Home Office. My amendment would do two things. First, it would revert to the old practice of sending explanatory statements by post to the appellant and to their representative, if there were any, thus saving time and bypassing the Home Office. The Immigration Appellate Authority should be able to handle that administratively now that it has a centre at Loughborough. Secondly, it would prevent the Home Office from opposing an appeal if there were non-compliance.

Why is it necessary to include the Home Office in the process? Even if the Minister has an answer to that, there is no reason why there should not be a penalty for non-compliance. If I were in a more kindly mood than the Government seem prepared to be with appellants—I refer to clause 82, which determines when an appeal will be ''treated as abandoned''—I would suggest that it could left to the discretion of the adjudicator to decide whether the Home Office should be able to contest the appeal. That would soften my position on the amendment.

One written question was:

''To ask the Secretary of State for the Home Department if he will state against each category of appeal, and for the last full year for which records are kept, (a) the (i) target and (ii) actual time for despatch of explanatory statements by entry clearance officers from notification by unsuccessful applicants of their notice of appeal, (b) the time such statements are held in the Home Office before being

sent to the Immigration Appellate Authority and (c) for what reason figures are not published in the Home Office annual report; what proposals he has for reducing the delay; and if he will make a statement.''

The Minister replied:

''The target time for despatch of explanatory statements from entry clearance posts to the Home Office is one month from receipt of the notice of appeal for non-settlement applications and three months for settlement applications. Information on the actual time for despatch is not available. Information on the time such statements are with the Home Office is not recorded centrally and could be obtained only at disproportionate cost. These figures were not published in the last Home Office report as they do not measure performance against a Public Service Agreement or Home Office target. The scope for reducing timescales will be kept under review as part of the substantial expansion in appeals capacity announced by my right hon. Friend the Secretary of State for the Home Department on 29 October 2001.''—[Official Report, 15 January 2002; Vol. 378, c. 192–194W.]

In effect, the answer was, ''We'll have a look at the problem'', but it has not gone away, and other parliamentary questions, including from the hon. Member for Hamilton, South (Mr. Tynan), have not drawn a more positive response.

My amendment is therefore designed to draw attention to immigration appeals, which are neglected in the Bill and in the action being taken by the Home Office. I hope that the amendment receives support from the Government and Liberal Democrat Members.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I strongly support the hon. Gentleman's argument and the amendment, which deals with a live issue to people outside the House. I have visited entry clearance officers at work in Bangladesh, Calcutta, Abuja in Nigeria and in Freetown in Sierra Leone, where I went last year. Those officers work well and very hard, and I have no criticism of them. They are often under-resourced. However, I must highlight the amount of effort and time involved in chasing the system. I could tell the Minister about a pile of cases in which I have had to write to the Home Office and the Foreign Office. Having to send Ministers' communications between London and Addis Ababa and every other capital city and outpost of the FCO is nonsense.

The hon. Gentleman's proposal would provide exactly the discipline for which the Minister argued earlier. I hope that the Government will accept that, if we are to have a disciplined and streamlined system, they must be disciplined and streamlined, too. The Government should do as they would be done by. We should not ask applicants and appellants to comply with dates and deadlines when the Government do not give themselves dates and deadlines. I hope that the amendment receives support. The hon. Gentleman and I will want to return to the issue if we do not see satisfactory movement. Colleagues on both sides of the House and people throughout the country have made the case for improving this part of the system.

Rosie Winterton (Labour, Doncaster Central)

The Government do not claim that everything was perfect in the cases that have been outlined, and we are certainly considering how there can be better co-ordination between the Foreign Office, the Home Office and the Immigration Appellate Authority. Obviously, that relates to entry

clearance officers. We are aware of the concerns that have been raised, but we feel that we must improve our administrative systems. In fact, early in our discussions, Opposition Members said that it was important to ensure that we got administrative processes right before leaping to legislation. I hope that hon. Members are reassured to know that we are considering how to improve those processes to overcome some of the problems.

With regard to the amendment, time limits for the appeals process and other procedural matters of that nature will be set out in the procedure rules to be made by the Lord Chancellor under clause 84. Comprehensive reasons for refusal are given in many cases before any appeal is lodged. We do not feel that there is a need for an explanatory statement to be given after the appeal is lodged, because it would be a waste of time and resources.

Under the one-stop system, the lodging of the appeal could bring additional grounds for application, which would need to be investigated and decided before the appeal papers could be finalised. How long that takes would depend on the appellant's co-operation in other matters. Putting a time limit on that would be difficult. It is unclear what would be the final effect of preventing the respondent from presenting a case if the deadline for sending an explanatory statement were not met. It would not prevent the appeal from going ahead for determination, which would place the adjudicator in a difficult position. The appeal would still have to be fairly determined on the facts, although he would not have any assistance in testing the appellant's evidence, and that could be unfair to the appellant.

It is unclear why, as the amendment suggests, an explanatory statement should be sent to the appellant and his representative within a time limit, but there is no mention of sending the papers to the appellate authority. The appellant and representative will already have received reasons for refusal with the decision notice by virtue of the regulations to be made under clause 83 ''Notice of immigration decision''. There is no advantage to the Secretary of State or the entry clearance officer in delaying sending the papers to the appellate authority. We are considering how we can improve the administrative process, but there is not necessarily any advantage.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand that there may be a technical problem with the drafting of the amendment, and that reference should be made to the Immigration Appellate Authority, but the decision notice is normally one sentence. It is rarely more than that. I have watched the process at the other end, where the assessment of the case is much longer and notes are made of all the points put by the applicant. It is not something that anyone can work on to prepare their appeals. In cases that require urgency for compassionate reasons, it is unacceptable not to have tough deadlines and to know the reasons. People cannot put the case otherwise. I like the Minister personally, but her argument is hopeless. It really is not adequate

Rosie Winterton (Labour, Doncaster Central)

As I recall, we are looking into cases in which there may be a need for urgency. I take on

board the hon. Gentleman's points about that. I can only reiterate that we do not feel that putting a time limit in those cases would be advantageous to the process, especially because of the limitations that it could put on the appeal process, which may not be in the best interests of the appellant. I reiterate that we are looking at what can be done to improve the situation administratively, which is the best way to tackle the issue.

Humfrey Malins (Conservative, Woking)

The Minister has twice said that the Government are looking into ways of tackling the problem. What ways is she considering, and how long has she has been considering them?

Rosie Winterton (Labour, Doncaster Central)

As I said, we are looking into the administrative processes. I can set out in writing some of the details we are considering, but at present we must analyse where the difficulties occur to see what can be done to improve the situation. We are not rushing to judgment, because it is important to obtain evidence about the difficulties and then to put together an approach that will solve the problems in the longer term. We do not want to make quick proposals that do not address the real problems. The way to tackle them is to use the approach that we have adopted. I hope the hon. Gentlemen are reassured that we are aware of the difficulties and want to tackle them, but the amendments are not the way forward.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall be happy to support the amendment tabled by the hon. Member for Woking if he decides to divide the Committee on the proposal.

I appreciate that both Ministers have only been in post since the general election, but I do not sense any urgency in their approach. The Government accepted that 18 months waiting for a routine operation was not good enough, and they are reducing it to 12 months. There must also be some delivery on the issue that we are discussing.

I hope that Ministers will leave the Committee having accepted that hundreds and thousands of our constituents face a nightmare scenario of grief and more grief, which is entirely the responsibility of the system for which the Government are accountable. The hon. Member for Leicester, South said, from experience, that anyone who has significant dealings with the problem knows that it is the bane of our lives as Members of Parliament and agents, and of the lives of real people in real situations who have such a hard time.

The Minister alluded to the urgency of the situation. If a Member of Parliament, an applicant or anyone else were able identify an urgent case and there was a streamline system to deal with it, that might alleviate some of the pain and grief. I give the example of a constituent, a woman from Sierra Leone who lived near the Elephant and Castle. She was dying and wanted to see her son, who had had to leave Sierra Leone and was living in the Gambia, but he was not able to get here before his mother died. Of course, such things happen occasionally, but it was not acceptable in that case as there was plenty of time for him to get here. The system must work better than that. The

man's mother died at Easter last year, but the appeal still has not been heard, which is awful. It is a year later and he has still not been able to see his father and to pay his respects to his mother.

I regularly deal with similar cases, which may involve a bereavement or an illness, a wedding, a christening or a graduation. The system is not compassionate, and the promise on the Home Office logo of firmness, fairness and justice is not being delivered.

One line on the notice gives a summary of the reasons for the decision, but people need to see the explanatory statement as soon as possible, as it gives the record of the interview and sets out the matters that may be agreed. There are often disputes about facts and misrepresentation. Sometimes there are linguistic problems: people may say that they speak good English, but do not. They may be on their own, and have not made their case well. There may have been some misunderstanding about the whereabouts of their family or children, how long they have lived somewhere, or whether they own their house. I understand how decisions have been arrived at technically, but an understanding of the situation may have resulted in an appeal being allowed, as it has in other cases. Instead, we wait for days, weeks, months and sometimes years.

I shall leave my vote in the hands of the hon. Member for Woking, but I want to return to the issue on Report if we are not satisfied in Committee. The Ministers will deal with the anger in the House if they return on Report with clear proposals for deadlines such as those we have proposed. I give them notice that we must have deadlines before the Bill leaves this place. They must be tough with their officials so that they can deliver for asylum seekers as they do for other people.

This is indirect, albeit unintentional, discrimination against immigrants and families in our minority communities. If I wanted my brother to return from living in Cyprus or working in Portugal, he could do so as he is a British citizen. The provision does not apply to me as a UK-born, white Briton, but it does to my Sierra Leonean, Ghanaian, Bangladeshi, Cypriot and Somali constituents. The Government must get a grip on the issue.

Humfrey Malins (Conservative, Woking)

I support the remarks made by the hon. Member for Southwark, North and Bermondsey. The Minister says that she is aware of the concerns, as she would be. She also says that that should be a satisfactory response. It is not. As the hon. Gentleman said, the immigration appeals system is a neglected area in which there are immense delays. As he spoke, I was reminded of a constituent whose husband died in Woking some time ago. She sent for her mother and father from Pakistan to be of some comfort to her after the death, but after some time the application was turned down. There is to be an appeal. However, questions arise about the whereabouts of the explanatory statement, what it means, who will receive it, whether it will hang about in the Home Office, and when the appeal will be heard. The appeal may or may

not be full of merit. That is not the point. In the real world, it will not be heard for six or eight months, or even a year. When my constituent needed a result, she could not get one—end of story. Some 20 months after the death of a husband, one does not need one's parents to get over a period of grieving as strongly as one does 20 minutes, 20 hours or 20 days after the bereavement. My constituent is facing such a problem, but I can do nothing about it. I can ring the MPs' hotline, but that are all over the place.

The amendment seeks to persuade the Government to get the system in order. I have pressed the Minister on that, and have asked her to specify what ways to improve the system she is considering. As the hon. Member for Southwark, North and Bermondsey said, it is not yesterday's problem but one that has been hanging around for as long as most of us can remember. Home Office officials have consistently failed to produce a system that works in practice and with efficiency. I ask the Minister again: how long has the Home Office been aware that it is a problem? Six weeks, six months or longer? There must have come a day when it realised there was a problem—when was that day? What work has been done since? What proposals have been drafted? What measures have Home Office staff suggested to Ministers should be tagged on to the 1999 Bill or any other Bill? The talk that we are hearing from the Government takes us nowhere.

Surely draftsmen are entirely capable of producing a clause that is better drafted than my amendment and which ties up aspects of the process in a way that my amendment does not. Cannot the Minister tell draftsmen to get something on the books by the time the Bill comes back on Report? I ask the Minister to recognise that the problem is serious and, more than that, to do something about it. Constituency cases all round the country would be affected by the general nature of the amendment. We cannot afford to leave the issue for an indefinite period, because genuine hardship is experienced in cases involving students, family resettlements or whatever. An appeal may be turned down because a case is frivolous, but that is not the point. The point is that a case needs be dealt with properly and with due speed, otherwise there is a sense of discrimination. That is nowhere a greater problem than in cases in which people need immediate support in this country.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There are also knock-on consequences. I can think of a case in which the mother of a family died and the father wanted someone to come and help him to look after the children so that he could keep his job, otherwise he would have had to give up his job and be dependent on the state. It is not a ring-fenced problem. There must be plenty of officials in the Home Office who have had personal experience of such issues. I hope that our joint message is getting across.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman is right.

The Minister almost offered—I should be grateful if she would make it a firm offer—to write to Opposition Members setting out the areas which the Government are considering. All Opposition Members would appreciate a letter explaining how long the

Government have recognised the problem and what proposals they are considering to improve the situation. Opposition Members have said enough this morning for the Government to be well aware that the issue is important. In a Bill that concerns immigration as well as asylum, it has been sadly neglected. The Minister will know that if the position is not made more satisfactory relatively quickly, there will be firmer and stronger opposition from all Opposition Members.

I will not press my amendment to a vote. Voices from our side of the Committee have been strong in support of the principle behind the amendment, and the Government can be under no illusion that we believe strongly that there must be rapid progress on the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60, as amended, ordered to stand part of the Bill.

Clause 61 - Appeal: claim for asylum

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 400, in page 34, line 1, leave out paragraph (b).

Alan Hurst (Labour, Braintree)

With this we may discuss the following amendments: No. 430, in page 34, line 1, at end insert 'limited'.

No. 431, in page 34, line 2, leave out 'exceeding one year'.

Humfrey Malins (Conservative, Woking)

Amendment No. 400 would ensure that applicants granted temporary leave of up to one year could appeal against the rejection of their asylum claim. Applicants who are granted temporary leave of a year or less should be able to access the appeal process to pursue their claim. If that right is denied, there is no bar to the Secretary of State granting periods of leave consecutively, thereby denying individuals the right to refugee status and consequently the right to be reunited with family members. That is particularly worrying for children, as they are frequently granted leave to enter or remain for periods of less than one year up to their eighteenth birthday. A respected NGO suggested this probing amendment.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am grateful that you selected amendments Nos. 430 and 431 in this group, Mr. Hurst. Although they represent lesser opportunities, there is a set of options before Ministers, and I shall give an example to reiterate the importance of the issue that they address. I am happy that amendment No. 400 is a probing amendment at this stage.

Amendments Nos. 430 and 431 deal with live issues that often come our way from families. There is obviously an advantage to applicants in having a status that allows them to be here legitimately, rather than having no status. However, I am sure that Ministers understand that if someone is given a limited stay when they believe that they have a claim to something better, their demand is clearly not being met. That is the reason for the amendments. If someone is allowed in for a brief period, it should be

possible for them to put their case for being able to stay here indefinitely and for it to be reheard on its merits.

I do not have the figures in my head—I may never have seen them—but limited leave is often given when a claim has been made for indefinite leave. When considering Home Office statistics on the number of asylum applications that are granted, we have to add up the numbers originally granted and the people who succeed on appeal. Then there are those who are given alternative rights to be here as extended leave to remain. Some may be given indefinite leave to remain, and others are sometimes allowed to stay on other grounds.

Contrary to the views of people at the Daily Express and others, by the end of the process about half of all those who put their case to come here stay legitimately, because their cases are accepted under one heading or another. Perhaps if the Labour party paid some money to the Daily Express, rather than the other way round, it might be persuaded to get the facts and figures right and report matters a little more accurately, like those journalists who try to give a balanced view.

I hope that people understand that individuals are often perfectly content to get some status on a temporary basis, which clause 61(1)(b) deals with, but they want to be able to continue their case. As a matter of law and justice, the application that we are discussing should be put on the same basis as other applications, and get in the slipstream to the adjudicator and so on. I hope that we will have a positive response from the Government.

Rosie Winterton (Labour, Doncaster Central)

Clause 61 is a much-simplified version of section 69(3) of the Immigration and Asylum Act 1999, which provides a right of appeal for people who have been refused asylum but granted leave to remain exceptionally. It is often called an upgrade appeal and complies with international obligations. The original clause has caused many technical problems at appeal and does not reflect the standard procedure in such cases. For example, it is unnecessary to refuse leave to enter on asylum grounds when rejecting an asylum claim and granting exceptional leave to enter, but the right of appeal depends on both immigration decisions being carried out.

The clause will allow a specific upgrade appeal when the asylum claim is rejected and leave is granted exceptionally, provided that the leave is for more than one year. The appeal is specifically against the rejection of the asylum claim, and other grounds cannot be put forward. In that sense, it is not a one-stop appeal. The appeal is not available for those given a year's leave or less, because that is a deliberately limited period and a further decision will have to be taken at the end of it. If that decision is to refuse further leave or to grant more than a year's further leave, it will attract a right to appeal.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister is right. I have no idea of the figures, but in practice people are often given extensions of a year or less, which do not attract a right of appeal. Putting it bluntly, the process could be spun out by recurrent extensions so that no right of appeal is allowed for a long time.

Rosie Winterton (Labour, Doncaster Central)

I hope that I can reassure the hon. Gentleman by saying that we do not intend to use the system in that way.

Amendments Nos. 400, 430 and 431 would allow failed asylum seekers who have been given a short period of exceptional leave to remain—12 months or less—to appeal against the decision to refuse asylum. If it is decided at the end of the period that they are able to return to their own country, they would then have a further right of appeal against any decision to seek to remove them.

I should give some reassurance about how we believe that the process will work, as there has been some misunderstanding. If a person arrives from a country that is in turmoil and their claim for asylum is rejected, they may be given exceptional leave to remain because it is felt that it will be safe for them to return at the end of the 12-month period. If a decision is made at the end of that period to remove the person, he or she can appeal on the grounds of asylum. Asylum considerations will be taken into account at that point and the appeal revisited.

That is how we see the system working, and we do not believe that the system will be used year after year to grant continuous periods of exceptional leave to remain. The amendment would increase the number of likely appeals. The system that we have instituted is fair, and to introduce more appeals would, as I hope the hon. Gentleman agrees, run counter to earlier statements about the need for a system that is fair and robust but which streamlines rather than increases the number of appeals.

I hope that, with those reassurances, the hon. Gentleman will withdraw his amendment.

Humfrey Malins (Conservative, Woking)

I have listened carefully to the Minister. Opposition Members save votes for critical moments—not in the sure and certain knowledge that we will win them, but because the fewer votes we press for, the more respected they will be. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 61 ordered to stand part of the Bill.

Clause 62 - Grounds of appeal

Rosie Winterton (Labour, Doncaster Central)

I beg to move Government amendment No. 342, in page 34, line 20, leave out paragraph (d) and insert—

'(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to take Government amendments Nos. 343 and 356.

Rosie Winterton (Labour, Doncaster Central)

The clause is a key part of our one-appeal philosophy and lists all the grounds for an appeal under clause 60. An appeal can be lodged on one or more grounds but all the grounds must come within those listed. The grounds are listed in different places in part 4 and schedule 4 of the 1999 Act but are brought together for simplicity. They refer specifically to human rights, asylum, European Economic Area obligations and race discrimination. The appeals documentation sent to the subject of the adverse decision will require him to lodge the grounds that apply to his case and, crucially, warn him that if he fails to lodge any relevant grounds at a later application, he may not attract a right of appeal if refused. Any grounds put forward that were not put forward prior to the decision, for example a human rights claim that the decision is contrary to the person's human rights, will be addressed in the one-appeal process.

Government amendments Nos. 342, 343 and 356 are technical amendments. Amendment No. 342 includes the ground that the appeal may be based on a claim that the decision breaches the applicant's rights under the Community treaties in respect of entry and residence in the UK. Those rights are described in the Immigration (European Economic Area) Regulations 2000. The amendment is necessary to preserve existing appeal rights. Government amendment No. 343 defines the criteria for those who can benefit from the Community treaties in respect of entry and residence in the UK, which is in line with earlier definitions.

Clause 71 defines which appeals are suspensive—that is to say, they may be exercised in the United Kingdom, as in the case of European Economic Area nationals and their family members who may not be removed while an appeal arising from an immigration decision made under clause 60 is pending. Amendment No. 356 permits EEA nationals and their family members to appeal in the United Kingdom against any immigration refusal made while the applicant is in the UK, which preserves existing appeal rights.

These are technical amendments, which will clarify the position and preserve existing appeal rights, and I hope that hon. Members will accept them.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Amendment No. 342 would change the wording in the clause as drafted, which refers to the Community treaties and UK obligations, to one that defines the person as having to be an EEA national or a member of that person's family. Are we talking about nationals of European Union countries or about the nationals of the old European Free Trade Association countries? Am I right in thinking that slightly different matters relate to the old EFTA country nationals, apart from those from Ireland, which has a different status? Are nationals from those countries covered in the proposal or elsewhere? I ask that question in ignorance; there may be an easy answer to it.

Rosie Winterton (Labour, Doncaster Central)

We are talking about the wider economic area. I did not hear the second part of the hon. Gentleman's question, so perhaps he will repeat it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand and appreciate that the Minister was talking to a colleague. If we are talking about what used to be called, and perhaps still is, the European Free Trade Association area, which the amendment refers to as the EEA—the European Economic Area—can the Minister tell us whether there is a difference in the Bill between the way in which a Swiss national and a French national would be treated under the system? The latter person is from a country in the European Union and the former is from a country in the wider area but not in the EU. I am trying to discover whether there is a difference in the system and, if so, how it works.

Rosie Winterton (Labour, Doncaster Central)

Briefly, we are talking not about EFTA but about the European Economic Area; there is no difference in the way they are treated.

Amendment agreed to.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 401, in page 34, line 34, leave out paragraph (b).

Clause 62(1)(b) puts a heavy, and perhaps unfair, burden on the appellant to produce documents before the case is heard. For example, the production of the documents could be in the hands of an overseas authority, not of the person seeking to appeal. One of the objectors to subsection (2) has been the United Nations High Commissioner for Refugees. The UNHCR rightly points out that, although there is a legitimate wish to ensure that asylum seekers who appeal against the decision to send them to another country should be able to show that they will be received there, subsection (2) raises concerns about cases where asylum seekers have been unable to prove which country they came from. People fleeing persecution frequently arrive in the UK without documentation because they have not had the time to collect all their personal belongings.

Paragraphs 196 and 197 of the UNHCR handbook stress that point and state:

''In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents . . . The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.''

Perhaps the subsection should provide a waiver of that requirement or, at the very minimum, the Government could make a commitment that the requirement will not be construed too strictly against the applicant in question.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The amendment has the support of both Opposition parties. I hope that the Government will be positive towards it. I appreciate that subsection (2) concerns an appeal only on the ground of removal as set out in subsection (1)(h). It suggests that the appellant has a double duty. First, he must specify a country other than the one to which it is proposed to remove him. Secondly, he must submit documentary evidence to the Secretary of State before the appeal is commenced. I know from practical experience that that is nonsense. I assume that the phrase

''before the appeal is commenced''

could be interpreted as being before one submits the appeal application. If it were redrafted, it could say

''before the appeal hearing begins''. That would not be perfect, but it would be better. If that is what the subsection is meant to say it would be helpful to know that, but it does not say that as far as I can see.

The hon. Member for Woking made the case that there all sorts of practical reasons, not least when it is a long time before one appeals and the appeal is heard, why putting the burden on appellants to provide both the country specification as an alternative destination and, subject to the amendment, documentary evidence that shows that they would be allowed to enter, is not practically deliverable. Appellants may have requested the documentary evidence. They may be able to certify that they have requested it. They may have good reasons to believe that it is available but they cannot be certain until they get the documents in their hands.

As Ministers and civil servants know well, in the real world dealing with that international transfer of documents would not be possible within the time scale. Someone who came from Iraq and was willing to go back to another country in the middle east would be very unlikely to get the necessary documents through the embassies in time. That would be much more likely under the timetable for the appeal hearing. The knowledge of a date for an appeal hearing often produces much speedier responses.

Information changes. Later there will be debates about whether the time by which decisions should be made and appeals should be determined is the original date and the circumstances surrounding it or the date of the appeal. We will put in different ways the case that one must allow evidence to be added to up to the date the appeal is heard. Things change: countries that were at war are at peace, and vice versa. It is therefore important to give people flexibility. A Government may change, or elections may be due, and a country that may not be willing to take someone on the day ''the appeal is commenced'' could reasonably allow that by the date on which the appeal is heard. I can think of many countries where that would regularly apply.

I hope that the Government will realise that the amendments are eminently sensible for practical reasons. Subsection (2)(b) is far too restrictive and will preclude justice on many occasions.

Rosie Winterton (Labour, Doncaster Central)

We strongly disagree with the idea that that would be practical, largely because there would be no point in not ensuring that someone would be accepted in a country that he or she nominated. If that person was not going to be accepted, he or she would simply be shuttled backwards and forwards, to the benefit of no one. The immigration service would usually be willing to remove someone to another country if that person so wished and if it were physically possible. At the same time, it is important that the service knows that the authorities in that country would be content to accept that person.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Will the Minister put on record how long an appellant has between a decision to remove to a particular destination and an application for appeal?

I understand that the period is no more than four weeks.

Rosie Winterton (Labour, Doncaster Central)

I understand that the period is 10 days.

On the need to produce documentation, we strongly believe that if a person objects to removal to a certain place, it is not enough for that person to say that he or she wishes to go somewhere else. The adjudicator would need proper evidence of a person's acceptability in another country. Certain people coming to the United Kingdom from elsewhere would not be admitted without a visa. It is only right, therefore, that the evidence should be documentary proof of acceptability. Without that proof, an appeal should not proceed. If we allowed appeals to proceed without documentary evidence, there would be no point in having the appeal, and it would merely clog up the system. We have been trying to avoid pointless appeals, which are a waste of everyone's time, not least the appellant's.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It would be helpful if the Minister defined ''appeal is commenced''. If a direction for removal was set for an Iraqi to return to Iraq, and they wanted to put a case for them to be sent to Canada where they had a cousin, does she seriously believe that even the efficient Canadian high commission would be able to determine within 10 days whether they should be admitted? If she does, she is not in the real world.

Rosie Winterton (Labour, Doncaster Central)

I should say first that, as I am sure the hon. Gentleman knows, we do not return people to Iraq, although I take his general point.

I am sure that people in such situations will be aware that it is within their rights and ability to put together documentary evidence before the 10-day period to prove that they are acceptable in another country. There is nothing to stop people doing that. I understand the hon. Gentleman's point about the 10-day period, but if people are considering transfer to another country as an option, I am sure that they will be aware of the possibilities at the end of the appeals process. If they are thinking about saying that they want to go to another country, there is nothing to stop them trying to obtain evidence before then.

However, it is impractical to suggest having appeals in which no evidence says that if a person were put on a plane to a different country, they would be allowed in and not simply returned. We require the evidence, because otherwise there is no point in making the arrangements that must be gone through to carry out the removals process.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There is nothing between us in half of what the Minister says. When the appeal is heard, there must be evidence before the appellate authority that another country will take person X. The question is by what date they must produce the evidence. Surely it will be sufficient to produce the evidence when the appeal starts to be heard, or perhaps the previous working day, so what does the phrase ''the appeal is commenced'' mean?

If someone was concentrating on claiming asylum here, and then heard today that they were to be turned

down, they would be able to address where they might go only now. It is not realistic for individuals to think about where they might go if their application to stay here fails. They want to stay here, and even if they wanted to go somewhere else, getting their act together with most embassies and high commissioners in the world in 10 days is impossible. In practice, the clause will mean that except in the most exceptional circumstances, people will not have an appeal.

Rosie Winterton (Labour, Doncaster Central)

I can see that we are not going to agree on this point. I must reiterate that we do not want to delay removals because a person says that they are admissible to another country without any evidence to back that up. If they have the evidence, the immigration and nationality directorate will remove them to the country concerned. There is no question about that. If the documentary evidence exists to prove that they will be accepted, a move will go ahead. There is no reason why it should be opposed, but the evidence must be available to us.

I can see why the hon. Member for Southwark, North and Bermondsey is concerned and I understand his points about gathering evidence together. However, we need to set up a system that enables us to ensure that nothing frustrates the process when removals have been decided.

In doing so, we must consider the most effective way of confirming that it is not a problem if someone has a country to go to other than the one that we indicated. However, we need evidence, which we believe it is possible to produce. We can be certain that someone will be accepted and not waste flights only if we have that evidence. I hope that that is reassuring.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have said many times that I am unconvinced. If the Minister wants me to, I will write to six embassies or high commissions, chosen at random and agreed with her, and ask them how long it takes them on average to determine an application to come to their country? All my experience indicates that none of them would be likely to state that they could definitely do so within 10 days. The documents are often in another place, such as with the Home Office, and it is a nightmare to retrieve them. The Home Office loses them half the time. I regularly receive apologies from it for having lost passports.

Before the Minister concludes her remarks, will she tell us where we can find the definition of ''appeal is commenced''? The position is improved if it is defined in the Bill as being on the day on which the appeal hearing starts. However, it is surreal politics if it means the day that the appeal is lodged. I pray that the Government will see the nonsense of the argument. This is not real-world stuff, and I ask them to reflect on it before Report, where we will want to pursue it, and before it passes to the House of Lords, where I hope that sanity will prevail even if it does not in this place.

Rosie Winterton (Labour, Doncaster Central)

On one of the hon. Gentleman's earlier points, subsection (1)(h) and subsection (2), when read together, make it clear that the asylum seeker, or appellant, will know at the start of the

process that there is the possibility of removal to a country at the end of that process. That is part of the idea behind bringing everything together in one process, so that all those things are made clear from the beginning. Someone cannot decide at the last minute to find evidence of another country that they would like to go to. The hon. Gentleman used the example of Iraq, with which there are obvious difficulties, but I understand the point that he was making. It is important to clarify again the purpose of the appeal process. It is not to find someone somewhere else to go, but to propose a place where the asylum seeker knows he can go. That is why it is known from the beginning that that alternative could be proposed at the end of the process.

Neil Gerrard (Labour, Walthamstow)

Everyone welcomes the general concept of a one-stop appeal with all the cards on the table, so that at the beginning of the process the grounds of the appeal are known. We should not end up with what sometimes happens when poor advisers and solicitors try to find further reasons to appeal after they have lost a case. No doubt they make significant amounts in the process.

I am confused by how this bit of the system will work. The argument seems to be that in order for a person to get an appeal off the ground, he must be able to go to the Home Office, specify an alternative destination and show proof that the destination would accept him. An appeal would almost certainly never be heard on those grounds. If the Home Office intended to remove a person to a specific country and that person said, ''No, I don't want to go there, but I have documentary evidence from a different country that will accept me'', what would be the point of the appeal? Surely the Home Office would say, ''Fine, you can go to that alternative country. We will remove you there.'' It seems to be a tautologous process in which we go around in a circle. If a person were able to lodge an appeal and say, ''I believe I could go to this alternative country'', he would be expected to produce evidence at the appeal that the country would take him, and if he could not do so, inexorably the case would be lost.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

A further consideration is whether any other country would consider an individual's papers while the process was going through in the United Kingdom. We should consider the problem the other way round. If an individual had his asylum claim processed in Canada and still had legal recourse, I would not expect the United Kingdom authorities even to look at his paperwork until the process in Canada had been completed. It is correct to suggest that the 10-day timescale is a problem. An individual who was looking for a route to Canada would not be at the top of the Canadian authority's priority list while he was in what was deemed to be a safe country—the UK.

Alternative countries will not be interested in prioritising any claim for an individual who is in the UK. That is a major difficulty, and such an individual would have to start from scratch at the beginning of the 10-day period and would be unlikely to complete the process.

Humfrey Malins (Conservative, Woking)

The debate has been interesting, although I still think that the burden on the applicant is high and heavy.

There is an issue of language. I have been thinking about the phrase

''before the appeal is commenced''

and I have been trying to decide its meaning. I have tried to think of another word for ''commenced'', which is not a word that you or I, Mr. Hurst, use in our normal day-to-day language. Indeed, I challenge any member of the Committee to raise intervene if they have ever used the word ''commenced'' in their normal day-to-day language. I have not, although I have used the words ''begins'' and ''starts'' quite often.

Let us examine what ''before the appeal begins'' might mean. Assuming that I am an appellant in a court case and someone rings to ask whether the appeal has begun, and I say, ''No, it starts or begins on Tuesday, though I lodged the appeal a fortnight or a month ago.'' What does it mean? Is the appeal commenced—the more I use that word, the uglier it becomes—on the day that it is lodged, or on the first day that the appeal starts? It is an important difference.

Rosie Winterton (Labour, Doncaster Central)

Perhaps I can clarify the matter.

Humfrey Malins (Conservative, Woking)

If the Minister can clarify it, that will be terrific.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman was right when he referred to the appeal being lodged.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is a worst case scenario.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman has been trying to extract that fact from the Minister for the past quarter of an hour. She might consider redrafting the provision on Report, as it might read better if it said, ''submits to the Secretary of State before the appeal is lodged''.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Except that that is not what we want.

Humfrey Malins (Conservative, Woking)

At least we would know where we were. I was completely confused until a few moments ago. I look at the clock and realise that we have only five minutes before we break for lunch. The amendment raises a serious issue. The hon. Gentleman was right in saying that it is the worst case scenario for the appellant. It is wholly unrealistic. It might be a different story if it referred to the day on which the appeal began. We flagged up the issue, and although I do not mean it unkindly, the Minister has not responded adequately. However, I shall not press

for a Division. We shall return to the issue again. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 343, in page 34, line 35, at end insert—

'( ) In subsection (1)(d) ''EEA national'' means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).'.—[Ms Rosie Winterton.]

Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

In the light of our debate a few minutes ago, I hope that the Government will reflect further on the clause. We shall not seek to divide the Committee, but we regard the last part of the clause as unsatisfactory. I would be happy to speak to Ministers about it before Report—I realise how little working time is available before then. I hope that the Home Office will urgently consider tabling an amendment that would deal with the nonsense and satisfy myself and the hon. Member for Woking.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman refers to how little working time is available between now and Report. Has he heard the same rumour that I have—that Report stage is proposed for the Wednesday after our return on 10 June?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have heard that, but it is not confirmed. It would make improving the clause difficult. If we finish the Committee stage this evening, have three working days before the spring break and Report stage is planned for two days after our return, it will be difficult for the Government to respond to debates. The Opposition parties will be able to table amendments. People from outside with an interest in these matters will be able to read the Hansard report of today's proceedings and reflect on them, but contacting the Government and Opposition will be impracticable. Ministers should discuss with their business managers and with the hon. Member for Stirling (Mrs. McGuire) how best to ensure practicable arrangements. She will doubtless do her best to accommodate the Opposition, as she so often does.

Question put and agreed to.

Clause 62, as amended, ordered to stand part of the Bill.

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.

Standing Committee E

Clause 63 - Matters to be considered

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 344, in page 34, line 36, at end insert—

'(A1) An appeal under section 60(1) against a decision shall be treated by the adjudicator as including an appeal against any decision in respect of which the appellant—

(a) has a right of appeal under section 60(1), and

(b) has specified grounds of appeal in accordance with rules under section 84.'.

Eric Illsley (Labour, Barnsley Central)

With this we may take the following: Government amendments Nos. 345 and 346.

Amendment No. 402, in page 34, line 42, leave out paragraph (b).

Amendment No. 432, in page 34, line 43, at end insert—

'(2A) Nothing in subsection (1) shall prevent an adjudicator from considering a claim for asylum or a claim that an act breached the appellant's human rights, whether or not raised in the statement.'.

New clause 19—Adjudicator: determination of appeal

Rosie Winterton (Labour, Doncaster Central)

The clause is equivalent to section 77 of the Immigration and Asylum Act 1999 in that it empowers the adjudicator to consider what are now called additional grounds—that is, further appealable matters that are raised in response to a requirement under section 74 of the Act to disclose reasons for staying here that have not been raised before. That remains a key feature of the one-stop system and the response to the requirement being made under clause 92. The adjudicator is not required, however, to consider matters raised in connection with a different application or appeal.

Under the 1999 Act, the adjudicator has to decide the case on the basis of the circumstances applying at the time he hears the case if those circumstances relate to an asylum or article 3 human rights matter. Other matters are to be decided according to the circumstances applying at the time of the decision, which follows the case law in the Ravichandran case. The clause extends the principle so that nearly all appeals are dealt with on the time of hearing basis. That has advantages for the one-stop system in that updated circumstances can be considered without requiring a new decision or appeal. The exception is appeals against refusals of entry clearance or a refusal of certificate of entitlement where the decision was taken abroad, because those are not one-stop appeals, and there is no question of removal in those

circumstances. There is no penalty for making a further application to the entry clearance officer based on updated circumstances, which are much easier to investigate in the country of origin than at a hearing in the United Kingdom, which is likely to have to be adjourned.

For the reasons that I set out, amendment No. 344 permits the adjudicator to consider all grounds of appeal no matter when they are lodged. If an application is refused it will often be sensible to enforce the requirement to disclose any reasons when we serve the refusal, to ensure that our information about the applicant's circumstances is completely up-to-date. It is important that the adjudicator is able to consider any additional reasons mentioned, even if the applicant is not asked to complete a statement until a refusal decision is made.

Government amendments Nos. 345 and 346 prevent the adjudicator from being asked to determine matters outside his competence. Amendment No. 346 restricts the appeal to those matters that can properly be raised at an immigration appeal. If the appellant's statement raises his entitlement to benefits, for instance, the adjudicator will not be required to consider that point. Amendment No. 345 removes the adjudicator's duty to determine all matters raised in a statement. It is not always necessary, or even desirable, for an adjudicator to determine every issue raised by the appellant. For example, if an adjudicator in a previous appeal determined an issue, it would be wrong for the second adjudicator to determine it again. However, amendment No. 346 does not remove the adjudicator's duty to consider all matters raised.

Amendment No. 402 would remove subsection (2)(b), and thus force the adjudicator to consider and determine any matter that had been raised in a statement at any time. If a person now seeking to stay on human rights grounds following their marriage had appealed two years earlier against a student refusal, the adjudicator would be obliged to consider and determine the student issues. It would not matter if those issues had already been determined.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Would that apply if the first application had been withdrawn? Obviously, there can be successive applications as people's circumstances change. Someone who came here as a student and then got married might make a second application on the basis of marriage or asylum, having got a student visa. So long as they informed the authorities that they were not pursuing the first application, presumably the situation that the Minister describes would not apply.

Rosie Winterton (Labour, Doncaster Central)

If the student had previously tried to extend their period of time on their application as a student, but that was refused, the second adjudicator would not revisit that decision, because an adjudicator would already have considered it. The second adjudicator would be considering the new issue.

With regard to amendment No. 432, clause 63 empowers the adjudicator to consider what are now called ''additional grounds''. Those are further appealable matters raised in response to a requirement

under section 74 of the Immigration and Asylum Act 1999 to disclose reasons for staying here that have not been raised before. That remains a key feature of the one-stop system, the response to the requirement now being made under clause 92. An essential feature of the one-stop process is that all matters relevant to an application for leave are raised, so that they can be fully and appropriately considered.

Without new clause 19, an adjudicator could leave some of the additional grounds undetermined. That would necessitate further hearings in order to resolve outstanding matters, and that would cause additional delay. The new clause defines the circumstances in which the appeal must be allowed—that is, when the decision against which the appeal is being brought is not in accordance with the law or the immigration rules, or involves the incorrect exercise of discretion.

I hope that I have given some of the background to the Government amendments, and have addressed some of the issues raised under the Opposition amendments.

Humfrey Malins (Conservative, Woking)

I rise briefly to speak to amendment No. 402. Unusually, the Minister dealt with it in her comments. In general, we must be careful, when considering such a Bill, to focus as much on justice as on speed for speed's sake. Subsection (2) requires the adjudicator to consider and determine all the grounds of appeal and any additional grounds, and prevents him from considering anything else.

My amendment would delete subsection 2(b), because to prevent the adjudicator from considering anything else strike me as a fetter on his judicial discretion. Perhaps the Minister will persuade me, but I do not think that the insertion of paragraph (b) serves any useful purpose. I can think of no real parallel in the criminal justice system whereby a judge, on hearing an appeal from a magistrate, is so constrained. The point underlying the amendment is that surely it should be left to an adjudicator to assess what relevance or weight to attach to a statement. That principle is reflected in subsection (3).

I am a little uneasy about the fettering of the adjudicator's judicial discretion. Although the Minister answered my questions before I asked them, I was not utterly reassured on that point.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister also anticipated the points that I wanted to raise on amendment No. 432, which is in my name and that of my hon. Friend the Member for Sheffield, Hallam (Mr. Allan). I shall deal with amendments Nos. 402 and 432 together, because although they make different points, they take the same direction.

The general principles in the clause, which is about matters that are to be considered on appeal, are welcome. The clause deals with appeals under section 60, which are appeals against immigration decisions. Such issues have a slightly strange distribution under the Bill, but the clause builds in the opportunity for a statement under section 92, to which the Minister referred. Perfectly reasonably, clause 63(1) says that

adjudicators should consider the matters in the statements. The Government do good things in parts of the Bill, but we argue that those things should be done elsewhere in the legislation.

Subsection (2) says that

''Subsection (1) applies to a statement under section 92 . . . whether the statement was made before or after the appeal was commenced''.

The Minister will remember our discussion about commencement. It seems that, under subsection (2), it does not matter if the statement arrived after the lodging of the appeal but before the hearing. The hon. Member for Woking (Mr. Malins) and I would both prefer ''commenced'' to be replaced by a clearer word, but the principle for which we were arguing before we suspended this morning's sitting seems to have been accepted in the clause. I hope that when the Minister considers the debates of this morning, she will decide that it would be consistent to bring the matters that we discussed up to speed with subsection (2).

Amendment No. 402, which we have signed, would remove paragraph (b) and thereby ensure that the adjudicator is not fettered in the things he can consider. Amendment No. 432, which my hon. Friend the Member for Sheffield, Hallam and I have tabled, adds what the Minister might call a clarificatory subsection (2A) to ensure that the claims of those who appeal to an adjudicator can be considered not just because they are making an asylum application, but because, as is increasingly common, they are making a human rights application. It accepts the Minister's premise that we should bring all things together. We should allow the adjudicator to consider all the different types of appeal, whether it is against an asylum refusal or on human rights grounds.

Like the hon. Gentleman, I will not press our amendment to a Division. I will reflect on what the Minister has said so far and what she may say in response to the two points that we have made. I hope that she will reflect on what we have said, but I think that we agree that the adjudicator should have the power to consider the required statements as provided for in the Bill and any other statements that come to his attention before the hearing, irrespective of when they come.

Section 60(1) is described in clause 63(3) as a right of appeal against an immigration decision. It is referred to again in subsection (4), which deals with appeals against refusal of entry clearance or refusal of a certificate of entitlement. There may be a plan to have slightly different rules for slightly different types of application. I concede that I have not entirely thought through the logic of those different approaches. However, even if the Minister does not accept our proposals at first blush, I hope that she will examine them and give us a considered answer. Perhaps she will be kind enough to write to us before Report and, depending on the Government Whips, provide enough time to enable us to table an amendment should we so wish.

Neil Gerrard (Labour, Walthamstow)

The Minister explained that the reason for the different approach to refusals of entry clearance was that there was no question of a penalty or a removal. I understand the logic of that. I hope that we can improve the current situation whereby people are refused entry clearance. I am thinking about people who have made marriage applications and been refused entry clearance and then there is a change of circumstances. There are very long queues at some of the posts that I have to deal with, and it seems unfair that people end up right at the back of the queue having to make a completely fresh application.

We should examine some of those entry clearance mechanisms and see how we can make the system easier. If there is not an appeal to deal with the updating, we should consider whether a reasonable review of people's circumstances can be carried out. I know that that will happen sometimes when MPs write, but I also recall cases in which an adjudicator has considered evidence that has been submitted. He has told the Home Office that he must refuse the application on the grounds that are covered in the clause. He has considered the decision that was made by the entry clearance officer on the evidence available to him, but has recommended that the Home Office exercise discretion. I hope that we will not cut off that route for decisions to be reviewed. If the clause prevents an adjudicator from making such recommendations, we should consider alternative mechanisms that would enable people whose circumstances have changed to get reviews quickly rather than having to return to the back of a queue for months before their case can be re-examined.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Has the hon. Gentleman also had experience of people putting in a new application when they have been turned down because that flexibility does not exist? The system does not lose work. It is better to finish one job more quickly than to force people to return to ''Go'' on the monopoly board so that they have to go through the whole process again.

Neil Gerrard (Labour, Walthamstow)

That is perfectly sensible. We are generating work by making people go through the process again when the refusal has been based on a point that could be satisfied by updating information about a change of circumstances.

Rosie Winterton (Labour, Doncaster Central)

The hon. Member for Woking argued that we should not fetter adjudicators. We need to be clear that we do not want an adjudicator to revisit a previous appeal that has already been determined. That would be nonsense, because an appellant may not have wanted to pursue the previous application. It would not be sensible or helpful for it to be revisited on every occasion.

We want people to have access to section 92 forms as early as possible in the process. Ideally, they should be given to people at induction centres and before the first immigration and nationality directorate hearing or interview. In the case of a refusal, people should be given an opportunity to explain in a statement why they wish their case to be considered. Importantly, the clause also ensures that the circumstances that apply

are those that apply at the time of the hearing, so that there is proper consideration of the circumstances at that time. Removing clause 63(2)(b) would not be helpful, not least because the appellant may not want those grounds to be considered any more.

We are sympathetic to the points made by my hon. Friend the Member for Walthamstow (Mr. Gerrard). It is important that we continue to work with our colleagues in the Foreign Office to make sure that the processes are clear and that we do whatever we can to resolve the important issues that my hon. Friend raised. The issues can be reconsidered and fresh evidence presented. That should be done in the country of origin, because doing it any other way could lead to considerable delays and adjournments, which would not be in anyone's interest. Indeed, it would put the adjudicator and the Home Office presenting officer in a difficult position if it was open to the same systems.

Points were made about the one-stop process. If we want to make the one-stop process to work properly, it is important that all matters that are relevant to an application be raised so that they can be properly considered. If those matters are not raised until the hearing before the adjudicator, it will inevitably lead to adjournments and delays. It will not be possible for an adjudicator to decide the case on the basis of the circumstances applying at the time of the hearing on asylum or human rights matters. However, if those matters were raised for the first time, it is right that the existing appeal should be determined and any new matters referred to the Secretary of State for consideration. If after consideration the Secretary of State rejects the claim, it is possible for him to treat it as further representations, generate a further right of appeal by making a fresh immigration decision or certify the claim under clause 74, thereby preventing any further right of appeal.

It is important that we do not allow the system to be abused, particularly by allowing elements of a claim to be kept up someone's sleeve until the last minute, thereby preventing proper consideration. The procedures in the Bill will ensure that there is fairness when matters arise at a later stage, but we must ensure that that is balanced with the ability to prevent the system from being abused by bringing up such matters at the last minute. The adjudicator should be able to consider only issues that can form the basis of an appeal. A question was asked about the immigration decisions, and a list of them can be found in clause 60(2).

I hope that that explains the Government's position on the points made by Opposition Members, and that in the light of that the hon. Gentlemen will feel able to withdraw their amendments.

Eric Illsley (Labour, Barnsley Central)

It is a Government amendment, so the hon. Gentlemen have nothing to withdraw.

Rosie Winterton (Labour, Doncaster Central)

Yes, sorry.

Amendment agreed to.

Amendments made: No. 345, in page 34, line 38, leave out 'and determine'.

No. 346, in page 34, line 38, at end insert

'which—

(a) constitutes a ground of appeal of a kind listed in section 62(1) against the decision appealed against, or

(b) could be the subject of an appeal by the appellant under section 60(1).'.

No. 347, in page 35, line 4, at end insert 'under section 10'.—[Ms Rosie Winterton.]

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 403, in page 35, line 6, leave out paragraph (b).

Eric Illsley (Labour, Barnsley Central)

With this, it will be convenient to take the following: Government amendment No. 348.

Amendment No. 415, in clause 80, page 40, line 23, leave out subsection (3).

Government amendment No. 364.

Humfrey Malins (Conservative, Woking)

When the Minister said that she hoped that the amendment would be withdrawn, I was hoping that you would ask whether the Committee agreed, Mr. Illsley. If you had, we would have shouted ''Aye'' loudly and the Government amendments would have fallen.

I turn now to a important and difficult matter. Amendment No. 403 would delete subsection (4)(b). We must realise that we are discussing immigration, not asylum, appeals. They are two different animals. This morning, we spent a lot of time properly challenging the Government about immigration appeals, and especially delays. A heated but good debate took place. All of us, including the Minister, agreed that there were problems of delay and administration in immigration appeals. We must be careful. The Minister constantly refers to abuse in asylum cases. There is some merit in referring occasionally to that, but the arguments do not apply with the same force in immigration appeals. They are separate matters.

For example, subsection (4) covers the refusal of entry clearance. Unless I am greatly mistaken, that involves a person perhaps in Islamabad applying at the high commission for entry clearance to visit. If members of the Committee know that high commission, they will realise that it is not an easy task for a person to undertake. There are many people. Despite the fact that it is doing its absolute best, the waiting conditions are not perfect. The people to whom I am referring are not making an application for asylum; they are not abusing the system; they are making a straightforward application. It results in an on-the-spot interview, and perhaps shortly afterwards, a refusal.

If there is an appeal, subsection (4)(b) states that

''the adjudicator may consider only evidence which was available to the person who took the decision to refuse.''

I will be corrected if I am wrong, but in the simplest of language, that means that the person who has made the decision at Islamabad on the basis of the information that he or she has, finds that, when the adjudicator here—not there—hears the appeal, he or she is stuck on the same evidence and nothing more. At present, statutory provisions do not limit the evidence

in entry clearance cases when there are appeals. There is no limit to what has been submitted to the entry clearance officer. That is not surprising, because in many cases, people go to the entry clearance officer to apply for entry clearance without their tackle being shipshape.

At present, appellants can produce evidence that relates to relevant facts at the date of decision. Extra evidence can come to light later, particularly if it was difficult to obtain—for example, when witnesses are not in the United Kingdom. The right to take such action should not be restricted.

The same applies in connection with amendment No. 415 to clause 80(3)(b), which deals with the Immigration Appeal Tribunal, which can

''consider only evidence which was available to the person who took the decision to refuse.''

What do the Government mean by that? We know from our surgeries that if people make an application for entry clearance and they are refused, the sponsor in this country contacts us. I hope that I have not completely missed the point. It is entirely possible that things may be very different by the time such people come to our surgeries. For example, some of the hurdles that the applicant failed to jump in the interview in, say, Islamabad might have been overcome.

Let us consider a specific example: an application for entry clearance for a visa to attend a wedding is refused, and there is an appeal. After the refusal, all sorts of evidence might be obtained about the wedding—not least a personal letter from the Member of Parliament stating that he knows that there is a wedding because he is going to it. A host of other material might also become available, such as the wedding invitation, and other financial material that was previously unavailable—or perhaps it was available.

It is common ground that all such matters are at large when there is an appeal. That is certainly the case with regard to the criminal justice system: in criminal appeals, such matters are, effectively, at the discretion of the judiciary. If decisions—and especially tough ones—are to be made, I am keen that they should be made by someone in a judicial position, rather than, effectively, by the Secretary of State. We must recognise that immigration appeals are different from asylum appeals. In the past, delays were often caused by Government bodies, and in a huge number of cases there is not the abuse that the Minister would have us believe exists in asylum cases.

The clause states:

''in relation to an appeal under section 60(1) against refusal of entry clearance . . . the adjudicator may consider only evidence which was available to the person who took the decision to refuse.''

That means that he cannot consider evidence that was unavailable in Islamabad but has subsequently become available. That is a departure from the current law, and it is unfair and unnecessary.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Government amendment No. 348 proposes that, at the end of subsection (4), there should be added,

'''or which concerns a matter which was relevant to the taking of the decision'.''

I thank the Government for that, as it is a great help. Their reflection has led to an improvement.

I was going to make an equally complimentary remark about Government amendment No. 364, but I cannot find it in my notes—perhaps the Minister will help me on that later on. That leaves us with amendments Nos. 403 and 415, which go in the same direction, so I hope that she will accept their general point.

As the hon. Member for Woking suggested, entry clearance officers—like Customs and immigration officers—are civil servants who act at ports of entry, where they make initial front-line decisions. They make them as carefully as possible. I have watched them and seen how they approach their work. However, they make one decision after another; that is all they do every day. There comes a time when that cannot be what they dream about doing; instead, they probably wish that they were somewhere else. They may dream that they are on the beach around the corner, but they certainly do not dream that they wish that they had yet another queue to deal with. Their work is hard—it is relentless, and they have to concentrate. In many of these places, there are relentless queues of people applying to come on family visits, for courses and for work. An important first point of principle is that an adjudicator is not a civil servant but is outwith the system. It is important that someone can stand back and examine how the system has dealt with a case.

As the hon. Member for Walthamstow (Mr. Gerrard) said, it must be in everyone's interests to keep one application going that deals with everything, rather than to keep recycling an application. If new evidence comes to light between the decision and the adjudicator's hearing, it must be brought into play, as it will change the nature of the beast. I will give an example. I believe that I represent more council house occupants than any other English Member of Parliament. Some two thirds of my electorate live in council property—it used to be 80 per cent. Immigration officers in the front line are often not satisfied that someone has accommodation or funds sufficient to be able to look after themselves.

The truth is that although a family in a two-bedroom flat on the Rockingham estate at the Elephant and Castle may not be living in the lap of luxury, if they need to, they will move someone into the living room and put the two kids into the bedroom. The accommodation may not be grandiose, but it is sufficient, and there is no extra cost. In any event, the local authority quite properly would not consider an application for larger accommodation until the people are here. It will not offer someone a bigger flat, even if it has one, on the basis of a prospective arrival. The Ministers will know that from their own constituencies.

Often, only that sort of further assessment can resolve those issues. The accommodation may be small and appear to be insufficient, but on review we can see that it is reasonable. The same is true of funding. It may not appear at first blush from the documents

presented in Islamabad or elsewhere that the funds are available to look after someone. For example, it can take a while to obtain bank statements. People queue to put their case, and may be turned down because there is no opportunity to go away and get other documents. Having waited for a day, or even two days, someone is not going to give up their place in the queue, because someone six places ahead of them says that it may be helpful to produce another statement. People often persist in their application in the hope that their documents are sufficient. They may then be told that they are not, but the evidence may exist and it is just a matter of getting hold of it, whether it is evidence of an Abbey National account or other money transactions. I hope that the argument put by the hon. Member for Woking and me is persuasive. In cases of refusal of entry clearance and refusal of certificate of entitlement, we must be allowed to put the same case with all the evidence.

Although the Government amendment is helpful and a welcome improvement, it does not meet the objective. Even if the adjudicator can consider matters relevant to taking the decision, that does not go as far as we would want.

I cannot understand why the processes for appeal to the adjudicator and beyond are different if the decision is taken by an immigration officer at Gatwick or someone behind a desk at the high commission in Nigeria, Sierra Leone, Ghana, Australia or anywhere else. The amendments are designed to secure a common system, irrespective of whether the decision is taken here or overseas.

Rosie Winterton (Labour, Doncaster Central)

May I first apologise for the earlier confusion, which was wholly my fault? Thank you for your assistance, Mr. Illsley. The hon. Member for Southwark, North and Bermondsey (Simon Hughes) acknowledged that Government amendment No. 348 goes some way towards addressing his concerns. I shall return to it in a moment.

Several views have been expressed about entry clearance decisions and appeals. The Government restored the right of appeal for family visits and we deserve some credit for that. Furthermore, some Opposition Members removed those appeal rights. The Opposition amendments would increase the number of appeals, but we are trying to streamline the appeal system to make it simpler for everyone and serve the best interests of people who are genuinely seeking and are deserving of refugee status. We need a system that will allow us to deliver decisions as quickly as possible.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I think that the Minister means immigration, not refugee, status.

Rosie Winterton (Labour, Doncaster Central)

Yes, I do.

To return to Government amendment No. 348, appeals made in the United Kingdom are subject to the one-stop process where, in response to a requirement made under clause 92, the applicant is required to disclose any reasons for staying in the United Kingdom that had not been raised before. That makes

it possible for the Home Office to consider anything new that arises, so that the adjudicator can review our decision rather than take a new one.

We cannot expect an applicant for entry clearance to know, perhaps months in advance, all the reasons for remaining in the UK once he arrives. It would be unreasonable in those circumstances to issue a notice under clause 92, but if we do not issue such a notice, we cannot ask the adjudicator to consider any new grounds that may arise between the decision and the appeal hearing. That would mean that the adjudicator could be expected to take a completely new decision, which is an administrative rather than a judicial function.

We accept, however, that clause 63 is too restrictive. Under section 77 of the 1999 Act, the adjudicator currently has jurisdiction to consider matters that relate to relevant facts as they stand on the date of decision. If a person claims at interview that they are in a relationship with someone and marries that person a week after the date of decision, the adjudicator will be able to take the marriage into account as evidence of the relationship on the day of the decision. We believe that that situation should continue, which is why we tabled amendment No. 348.

Humfrey Malins (Conservative, Woking)

In that case, why did the Government draft something entirely different?

Rosie Winterton (Labour, Doncaster Central)

As I said, having examined the clause, we believed that it was too restrictive and took this opportunity to make an adjustment. I would hope that the Opposition would welcome that, not churlishly but with open arms.

Amendment No. 403 would not help, because it would take us backwards from the current position. It would leave the jurisdiction of the adjudicator unclear in entry clearance cases and take us back to the pre-1999 Act position, when case law governed the matter. We believe that it is better to have a clear statutory provision so that there is no doubt about the test.

Government amendment No. 364 concerns clause 80(3) and appeals against refusal of entry clearance or certificate of entitlement applications made abroad. Subsection (3)(b) concerns overseas cases, which are not one-stop cases and in which subsequent applications can be made without penalty. There has been much discussion about how such cases are treated, but in such situations people already have a right of recourse through a review with the entry clearance officer. It is much better to approach the decision maker with new evidence, because any new evidence put before an adjudicator and Home Office presenting officer would create a difficult position. As I said earlier, either the hearing would have to be adjourned, or evidence would be considered without full scrutiny. However, if the evidence is put to the entry clearance officer, there is not that kind of pressure.

We must examine closely how we can improve the system and give clearer advice to people who make applications abroad. That is important, so that people

can put forward as much evidence as possible at the initial stage. Nevertheless, it is far better in those cases for evidence to be presented to the entry clearance officer because there is no reason why fresh applications cannot be made or new evidence cannot be presented at that time. In addition to the fact that there is no threat of removal, that is why those cases should be treated differently.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand the Minister's arguments, but will she reflect on the fact that there will be difficulties and cost implications if people have to travel to make the application and have an interview, and then go back with more evidence? I should know the answer to this question, but I do not: am I right in believing that some applications involve a fee? A person whose application is refused might be told that they can make another, but that would be a more expensive option than an appeal, which does not involve a fee. Some people have very little income. There is also the usual suspicion that if the case is to go back to the person who made the first decision, it might not go much further. People will often opt for appeal, especially if no cost and a different person are involved.

Rosie Winterton (Labour, Doncaster Central)

I understand the hon. Gentleman's point, but we must balance that against our objective of ensuring that current appeals processes can deal with current circumstances. We are talking about the effect that removal has on individuals. We must balance the penalties involved in such circumstances. It is important to ensure that at the earliest point people are made aware of the information that they need to provide to, for example, entry clearance officers.

In reaching a decision, the tribunal may consider evidence about any matter that it believes to be relevant to the adjudicator's decision, including evidence that relates to a matter that arises after that decision. However, that will not apply in cases in which the appeal is against refusal of entry clearance or of a certificate of entitlement. If clause 80(3) were removed, as proposed in amendment No. 415, people appealing against refusal of entry clearance or of a certificate of entitlement would be able to introduce new evidence on appeal. That would cause unnecessary expense, an increase in adjournments, and additional complications. I hope that that explains why I hope that the Committee will accept the Government amendments and reject the Opposition's.

Humfrey Malins (Conservative, Woking)

The Minister replied in a most courteous and kindly fashion. I apologise for having forgotten to say earlier that Government amendment No. 348 seems to reflect some movement on their part. However, if I am expected to be confident in the Government machinery, the news that they now believe that what they thought was terrific on 27 April, and must have thought was terrific in the weeks leading up to that point, is not terrific makes me shudder, because it means that we cannot rely on them to have a consistent view.

Amendment No. 348 is not well drafted. The English is appalling—it would not score much out of 10 in an exam. If it were accepted, clause 63(4)(b) would read in full:

''the adjudicator may consider only evidence which was available to the person who took the decision to refuse or which concerns a matter which was relevant to the taking of the decision.''

That is not good English. Many people will scratch their head and ask what it means. I hope that the hon. Member for Southwark, North and Bermondsey agrees that the adjudicator should consider whatever they want to consider and whatever they think is relevant. If the Minister is arguing that the Bill states that, I am intrigued to learn how.

There is an interesting parallel in criminal law—I am not digressing. If the defendant had a defence that was not used, it is up to the judge when summing up to direct the jury that it is open to it to find according to that defence. That is certainly a case of bending over backwards to help. What is the specific difference between what is proposed and giving the adjudicator in the appeal absolute discretion to hear whatever they want and assess it however they want?

The hon. Member for Southwark, North and Bermondsey made an interesting point about an issue that recently arose in my constituency. I am now scratching my head about whether I did the right thing. Someone's entry clearance application was turned down; I thought that that was ridiculous, as it was a top case, so I decided to back the person 100 per cent. They asked whether they should appeal, and I said, ''No, it would take years to get an appeal. I'll give you a letter signed by two notable persons in the constituency, plus me. Fax it to Colin Mulcahy, the boss at the Islamabad embassy. Once he sees my imprint on it and that of my Labour opponent at the last general election, Sabir Hussain—a great man, who represents the community in Woking very well—you should make a fresh application. I bet my bottom dollar it succeeds.'' At the time, I was thinking of speed for the applicant, but it might cost them money, so in a way I slightly regret what I have done—but I digress.

The Minister should realise that the abuse talked about in the press and being considered by the Committee and Parliament is the so-called abuse in some asylum applications. The world of immigration appeals is completely different. The clause is not satisfactory. What is the specific difference between its provisions and giving the adjudicator a totally free hand to take into account whatever they want?

Rosie Winterton (Labour, Doncaster Central)

I am sorry that the hon. Gentleman does not welcome our decision to make an amendment. That is what parliamentary scrutiny is about. We have on occasion accepted the points made in debate, and I hoped that he would be more welcoming of the points reflected in amendment No. 348. We have tried to ensure that an adjudicator does not rehear cases that have already been heard and determined. I gave the example of someone who applied for variation of leave as a student, their case

was determined, but they then made another application. Hearing previously made claims all over again would not be a sensible way to proceed.

Humfrey Malins (Conservative, Woking)

I do not want to oblige the adjudicator to hear anything. That is the point. I am saying that the adjudicator, a judicial person, should have discretion. They would not have to hear matters that had been previously determined.

Rosie Winterton (Labour, Doncaster Central)

But if we are to create a system in which there is clarity, not confusion, it is important to state what it is appropriate for adjudicators to consider at the various stages, otherwise the adjudicator's position could be unclear. The difference that we are introducing is that the appellant would be able to raise matters that the entry clearance officer had not considered. That is important and I hope that, on reflection, the hon. Gentleman will see that we are trying to create a system that is easily understood and that makes clear what adjudicators are expected to examine when hearing appeals. Otherwise, the position becomes confused, which helps neither appellants nor those who represent them. I hope that the hon. Gentleman accepts that the changes made by Government amendment No. 348 meet several of his concerns.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister will excuse me for not being grateful for the small mercy that she offered. She heard me say that the point has not been addressed, which is a concern that the hon. Member for Woking and I share. May I make two points before I leave him to decide what to do with the amendment?

It is important that the British—in this case, English—judicial system has a reputation for doing its job well. Doing a job well does not mean making nit-picking decisions that preclude people from looking at reality; it means allowing those who are appointed to review the case in the round. One of the reasons why asylum seekers want to come to this country is that we have a good reputation for fairness, honouring human rights and upholding the law, whereas the countries they come from do not have that good reputation. A system that works—one in which a civil servant makes a decision that is reviewed by an independent person—is good for Britain, to use a phrase that Prime Ministers have used over the years. Such a system would mean that we were seen to be doing the job properly.

If for some reason—to use the colourful phrase of the hon. Member for Woking—the tackle is not in order at the time a case is presented at the desk at a British mission overseas, it is sensible that if the case enters the appeal system, there is a chance, based on any evidence, for it to be reviewed in the round. If a person comes to this country as a student or a spouse or to work, upholding a decision taken on the basis of three quarters of the relevant facts is not important; what is important is to make the right decision so that a person who tries to come here as a nurse can do that.

I understand the arguments about stopping rogues stringing out appeals and about ensuring that there is one hearing, not six. I do not understand the point about allowing the adjudicator to say, ''Right, this is

all the case. I understand why the entry clearance officer made his decision, but I now know that the flat is big enough, or the money is sufficient, or the course has been agreed to.'' I hope that the Ministers will think about that and that they will table an amendment that is in line with amendment No. 403, whether or not that amendment is pressed to a vote.

I neglected to say earlier that Government amendment No. 364 and amendment No. 415 relate to the second stage of the process—the Immigration Appeal Tribunal. That is the next step up at which it is even more logical and important to consider everything; to do otherwise is to defend a limited view that might be all that the entry clearance officer had to go on. Both stages of the appeal—the adjudicator and the tribunal—are important, so I hope that Ministers will be persuaded to make changes.

The Government chide Conservative spokesmen for the wicked asylum and immigration policies that were introduced when the Tories were in power, but, as we have discovered, the 1999 Act is no model of perfection. Ministers can fairly argue that the 1999 Act brought changes, but no one believes that it should be regarded as the bible of wonderful immigration and asylum policies. Much has been changed, thank goodness, but valid reasons remain to change more.

Humfrey Malins (Conservative, Woking)

A principle is at stake here and we parliamentarians should keep an eye on it. The principle is that judicial discretion should not be fettered. An appeal from an entry clearance officer to an adjudicator is not based on a point of law; it is an appeal against a decision. It is wrong to say to the adjudicator anything other than, ''This is the appeal; you hear it''. No one should say, ''You have to hear this. You have to hear that. You have to listen to an argument on spurious subjects for 28 days.'' That is the point. What we should be saying is, ''Decide what you want to hear. Reject some parts of the appeal. Feel free to refuse to hear arguments about a particular subject. Feel free to demand hearing a particular argument.'' That gives the adjudicator discretion.

That problem, which involves the state, also applies to other parts of the Bill. The state is effectively saying to the adjudicator, ''Yes, hear the appeal, but do it our way.'' I exaggerate to make the point, but the state is placing constraints on the judiciary. The hon. Member for Southwark, North and Bermondsey is right that this country's judiciary has a good reputation for being wholly independent of the Executive. It must stay that way. Any measure that ties in the judiciary with the Executive is not only bad per se, but sends a bad signal to other places about a link between them. We must keep an eye on such developments generally.

I shall not ask hon. Members to join me in a Division on the amendment. The Government have made a concession, for which I am grateful—clearly, they are listening. We have had an important debate. The adjudicator should be a free agent, able to decide

to hear whatever he or she wants and to attach to it whatever weight he or she wants to attach. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 348, in page 35, line 7, at end insert

'or which concerns a matter which was relevant to the taking of the decision'.—[Ms Rosie Winterton.]

Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to flag up the fact that the hon. Member for Woking and I are unhappy about aspects of the clause. We have made the point, but will not reject the clause as a whole. We hope that the Government will try to improve it on Report.

As soon as practicable, will the Parliamentary Secretary provide the Committee with a list of current initial charges for immigration services, so we can assess costs effectively? We will come later to the improved position on appeals, for which we are grateful.

Rosie Winterton (Labour, Doncaster Central)

I am happy to do that.

Clause 63, as amended, ordered to stand part of the Bill.

Clause 64 - Consolidation of appeals

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to take Government amendment No. 368.

Angela Eagle (Labour, Wallasey)

If an appellant raises additional reasons for staying in the UK in the course of an appeal, they can be argued as part of a one-stop appeal and incorporated into that, rather than treated as a separate decision with a separate right of appeal. If, unusually, a further decision attracts a separate right of appeal, it should be possible for them to be linked pursuant to rules made under clause 84.

The clause is unnecessary, and consequently clause 84 should be amended, as it refers to the clause. We are therefore in the odd position of asking members of the Committee to vote for the amendment, and then to oppose that the clause stand part of the Bill.

Eric Illsley (Labour, Barnsley Central)

For the benefit of members of the Committee, let me point out that the decision on amendment No. 368 will be taken when we discuss the clause to which it is relevant.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I was not confused, but I am now.

I make this comment and the next in a non-confrontational manner. Clause 84 relates to the rules that the Lord Chancellor may make. Amendment No. 368 amends subsection (2)(m) on page 42, which I marked in anticipation. I believe that the Minister is

saying that all the things that were to be covered in the clause will be shipped into the rule-making powers in clause 84. I am happy with that if that is correct.

The Bill as a whole would benefit from consideration at the end of the Committee stage to ensure that we separate immigration and asylum where that is possible. I always try to make the point to the great public outside, as well as to the Committee, that the two are different. We are obliged to grant asylum, but not to allow someone in as an immigrant. One is governed by international law, the other by domestic law. The public need to understand that, as they often get confused.

Part 5 is entitled ''Immigration and asylum appeals''. Clause 61 is headed ''Appeal: claim for asylum''. Clause 62 is headed ''Grounds for appeal'', which I believe relates only to immigration and should therefore be headed ''Grounds for appeal: immigration''. I believe that clause 63, ''Matters to be considered'', relates only to immigration, not to asylum. The title of clause 64, ''Consolidation of appeals'', also relates only to immigration appeals. Under the clauses, therefore, one could not consolidate an asylum application in an immigration case, although both bounce around in theory at the same time, as the Minister knows. Will the Ministers consider reordering this part of the Bill with advice from colleagues, so that we can separate the asylum and immigration processes?

We should separate immigration appeals, not consolidate them. I do not think that it is technically possible to consolidate asylum appeals, because only one of them can be alive at any given time. If we are talking about consolidation of Home Office matters about status, at the end of this clause it would be logical to pull those together. I am merely making a request. We are trying to get clear clauses and clear headings to clauses, so that everyone can find what they are looking for.

Part 1 is about nationality and citizenship. It is entitled ''Nationality'', but when we went through it, we agreed that it is about citizenship and nationality—that some bits of the clause deal with the one subject, and other bits with the other. We argued for different names, but the Government took a contrary position. However, we should try to ensure that there is consistent language throughout the Bill, so that people following it can find their way through it more easily. I am sure that that could be done if people were to apply their minds to the task.

Angela Eagle (Labour, Wallasey)

I confirm the hon. Gentleman's view that clause 84 effectively subsumes the need to have clause 64. I hope that we can move on to discuss clause 84 before today's deliberations come to an end, so that he can talk about that.

The hon. Gentleman asks for everything to be separated, but at the same time he wants us to consolidate. We are trying to consolidate. It is not always possible both to separate and to consolidate; he can use both words in the same sentence, but it is not always possible to achieve that. We are doing what we can about how the Bill is ordered, but, as he said—to borrow the memorable phrase of the hon. Member for

Woking, who made the same point—the tackle sometimes gets mixed up. That is certainly the case in some of these areas, where people have immigration cases, appeals and asylum cases running at the same time. In such circumstances, those cases will be considered together. Therefore, there is some consolidation, but there is also some separation. We will make that as neat as possible, but it will never be perfect.

I will move that amendment No. 368 be incorporated into clause 84, but I ask the Committee to disagree to clause 64 standing part of the Bill.

Clause 64 disagreed to.

Clause 65 - Successful appeal: discretion

Angela Eagle (Labour, Wallasey)

I beg to move amendment. No. 350, in page 35, line 15, after '60', insert 'or 61'.

The amendment widens the scope of the clause and gives the adjudicator the power to give directions by including provision for the power to be used in appeals against a rejection by the Secretary of State of a claim for asylum in circumstances in which the appellant has been granted leave to enter or remain in the UK for a period exceeding one year. That ensures consistency across appeal types, so it is a kind of consolidation, but it is also a simplification. As the clause stands, adjudicators have the power to give a direction to give effect in some decisions, but not in others. This merely makes that consistent across the piece.

Amendment agreed to.

Clause 65, as amended, ordered to stand part of the Bill.

Clause 66 - Ineligibility

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 404, in page 35, line 37, leave out paragraph (c).

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to take amendment No. 405, in page 35, line 39, leave out paragraph (d).

Humfrey Malins (Conservative, Woking)

The clause sets out the categories of persons who are to be denied a right to appeal. It is criticised as extremely vague. For example, the Immigration Advisory Service is worried about the meaning of

''seeking to be in the United Kingdom''.

Will the Minister explain whether that includes people who are appealing from within the UK as well as those who are outside the country? Why is the language different from that used in subsection (2)(d), which refers to a person

''seeking to enter or remain''?

It could just be sloppy drafting or there may be a reason for the different wording.

Amendment No. 405 would remove the prohibition on appeal against a decision that a person is

''seeking to enter or remain in the United Kingdom for a purpose other than . . . in accordance with immigration rules.''

That is a technical point under the law, and I am advised that the provision would remove an appeal right from people who make applications under important concessions outside the immigration rules. Such people include women who have been victims of violence in marriage and want to take advantage of the domestic violence concession; the families of children who have lived for seven or more of their formative years in the United Kingdom; and those who would benefit from the 14-year and the 10-year concessions because of their long residence here.

As subsection (2)(d) precludes such refused applicants from appealing a decision to an adjudicator, they have no option but to appeal via judicial review, which is a slow and costly remedy. It seems more appropriate to allow those who come within the ambit of such concessions a statutory right of appeal under the Bill. The Immigration Advisory Service is another body that regards the category of persons to be denied a right to appeal as being too broad. Can the Minister give an assurance that the Bill as drafted does not exclude asylum seekers who are claming that to remove them would be contrary to the United Kingdom's obligations under the refugee convention in part 2 of the current immigration rules that deal with asylum seekers? Among the people who may lose out under the clause will be those relying on existing policies to enable them to bring in family members to join them, when they have exceptional leave to remain for what may be compassionate reasons. The probing amendments were drafted by persons more skilled than me to tease out answers from the Government to some important questions.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Member for Woking and I have the same worries, and those with whom we have discussed the matter have pointed out certain defects that would be dealt with by the removal of subsection (2)(c) and (d).

As the hon. Gentleman said, we have now reached the clauses that deal with exceptions and limitations. There are 12 such clauses, compared with seven clauses that deal with substantive proposals. It is sad that it is not the other way round. Furthermore, we are all suffering from the disadvantage of the absence of a Special Standing Committee. The previous Immigration and Asylum Bill was not perfect, even after deliberations by a Special Standing Committee. However, as my hon. Friend the Member for Sheffield, Hallam said—he is at present discussing a statutory instrument on Home Office business down the Corridor, but will be back here shortly—it was an extremely valuable exercise. Advice could have been taken and proposals tested through such a proceeding. I make a plea that, whenever possible, unless there is an overriding reason why not, we must have a White Paper, a draft Bill and a Special Standing Committee to deal with technical matters before the final version of the Bill is discussed.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman and I strongly agree on that point. Does he further agree that such Bills will be considered properly and carefully only if, as well as Special Standing Committee, a Select Committee can spend time considering the clauses and hearing evidence in the informal way that Select Committees do?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I agree. I think that I have already said that some EU countries do just that. Their Governments produce Bills that get a formal First Reading, and are then passed to an inquiry body made up of parliamentarians who take evidence. It is only when all parties involved have certified that the Bills have gone through that process adequately that they come back to the Floor of the House for parliamentary scrutiny. I am sure that we can learn from such systems when it comes to modernising our Parliament.

Rosie Winterton (Labour, Doncaster Central)

I shall be brief, as I am sure that hon. Members want to move on to other parts of the Bill. I assure them that the clause and those that follow it are largely equivalent to the sections in the Immigration and Asylum Act 1999 that restrict rights of appeal. The clauses, however, are arranged differently to suit the revised layout of immigration decisions and grounds for appeal.

The only further restriction is in respect of cases in which the application is for a purpose that is not permitted under the immigration rules. In those cases, the adjudicator would have very limited jurisdiction. The vast majority of applicants can hope for nothing but a recommendation, which is not even binding on the decision maker.

Let me give some examples of the effects of the amendment. It would remove subsection (2)(c), which removes the right of appeal for persons applying to remain

''in the United Kingdom for a period greater than that permitted... by immigration rules''.

I shall give the example of a working holidaymaker who applied under that scheme to come to the UK for two years, and knew that limit before applying. There is no appeal against not extending that time because the working holidaymaker scheme had finished.

Different circumstances might apply: suppose that the person became engaged and wanted to apply under the fiancee application in the UK, although the proper thing to do would be to go back and apply from abroad. If that person then wanted to become a student, he or she could apply under that category but not under the working holidaymaker scheme, because there is no way that the appeal could be heard under that scheme.

Amendment No. 405 would remove subsection (2)(d), which removes the right of appeal for persons who apply for leave to

''enter or remain in the United Kingdom for a purpose''

that is not covered by the immigration rules. That could apply to a case in which someone wanted to come and supervise a relative who was studying here but was having difficulty completing their studies.

Under the immigration rules, the relative would not be able to do that, but they might be granted permission by the immigration and nationality directorate at the Secretary of State's discretion. In those circumstances, we would not want an adjudicator to review that discretion, but the decision could be judicially reviewed.

We are talking about cases in which appeals will not be allowed because they, effectively, do not come within the immigration laws. There is nothing sinister about the provision. I accept that the amendments are probing, and I hope that my explanation persuades the hon. Member for Woking to withdraw the amendment.

Neil Gerrard (Labour, Walthamstow)

I understand the logic of saying that it is difficult to have appeals on matters that are discretionary and outside the rules. The answer to some of those problems and to some of the issues raised by the hon. Member for Woking is to start to consolidate within the immigration rules those established concessions that the Home Office has stated would apply. In cases where the concessions were not applied to someone, they would fall within the category of appealable decisions. That is the way to simplify this area, rather than to build complex appeal arrangements around discretionary decisions.

Humfrey Malins (Conservative, Woking)

I raised one little language point in my comments on amendment No. 404. I asked whether the phrase

''seeking to be in the United Kingdom''

includes people appealing from within the UK as well as those who do so from outside. Furthermore, what is the difference between that and the phrase

''seeking to enter or remain''?

The choice of language is odd. Perhaps I have missed a drafting point, but I should be grateful if the Minister let me know what it means.

Rosie Winterton (Labour, Doncaster Central)

It is covered by the examples that I used of the working holidaymaker who wanted to be in the United Kingdom for a longer period than permitted by immigration rules, or someone from outside who was applying to enter to look after a relative, or even someone who was in the UK on a visitor's permit for six months and wanted to extend the permit because her daughter had had a baby and she wanted to help look after it. Such a case would fall outside the current rules. The Government agree with the points made by my hon. Friend the Member for Walthamstow, and we intend to take steps to consolidate the concessions.

Humfrey Malins (Conservative, Woking)

In the circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 351, in page 36, line 8, at end insert—

'( ) Subsection (2) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to take Government amendments Nos. 352 to 354 and 360.

Rosie Winterton (Labour, Doncaster Central)

The amendments ensure the integrity of the immigration appeals process in terms of our obligations under the Human Rights Act 1998 and the Race Relations Act 1976 by providing a right of appeal on race and human rights grounds where appeal rights are otherwise restricted. The clauses covered by the amendments deny rights of appeal essentially in cases in which the appeal cannot succeed or the matter under appeal cannot be regarded as sufficiently important to the applicant to justify the use of the appeal resources involved.

Except in the case of applications to be made for a purpose not covered by the immigration rules, these provisions reproduce existing provisions in the Immigration and Asylum Act 1999. Indeed, most such cases have not attracted rights of appeal since the enactment of the Asylum and Immigration Appeals Act 1993. However, it is clearly inappropriate to apply such arguments against providing a right of appeal if human rights or a complaint of racial discrimination are involved. The amendments make the necessary exceptions for such cases. The exceptions are already provided for in the Immigration and Asylum Act 1999 and the Race Relations Act. As now, we shall not invite an appeal on race or human rights grounds unless the application was made on those grounds. It is obviously not for us to solicit new applications in that way.

Amendment No. 360 covers clause 76. The case is different, as it relates to people whose presence in the UK the Secretary of State in person considers contrary to the public good. Obviously, we need to ensure that a person who is refused leave to enter and who falls under that clause can make an asylum appeal. If necessary, we shall table a further amendment to do that. I hope that the Committee will agree to the amendments.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The amendments seem to be helpful and in the right direction. I shall not oppose them now, although I shall take advice on the Minister comments. The amendments appear to be sensible extensions of the legislation for the categories involved.

Amendment agreed to.

Clause 66, as amended, ordered to stand part of the Bill.

Clause 67 - Compliance with procedure

Humfrey Malins (Conservative, Woking)

The clause restates provisions in the 1999 Act, so we should not be surprised to find it here. Concerns have been expressed by the UNHCR, among others. The UNHCR recognises the need for an official procedure in the interests of both asylum seekers and the proper functioning of an asylum system. It is worried that the clause might hamper

asylum seekers' access to protection, and believes that the removal of appeal rights for non-compliance with procedural requirements is an overly restrictive approach that could result in the substantive elements of a claim not even being examined.

Common experience suggests that asylum systems benefit from some flexibility for time limits and other procedural parameters, as, indeed, does much of life. The UNHCR is anxious that strict parameters for appeals should not be implemented in a way that prejudices asylum seekers and impedes the effective review of an asylum claim at the appeal stage. I make those points on behalf of the UNHCR.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It seems important to have what in other legal contexts is called a slip rule—something that allows a failure to carry out a procedure not to bar someone from having the substance of their case examined. The example that I cite is a parallel, rather than a case that relates directly to immigration. I dealt with a housing application to my local housing office in Southwark—I mischievously add that this happened under the old regime rather than the new regime that is about to take over under new political colours next week—

Humfrey Malins (Conservative, Woking)

A Tory gain.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

No, not a Tory gain.

The homeless applicant did not have his homelessness application considered because he had failed to fill in one box in the form, and no one told him for weeks. That is the nonsense that we are trying to avoid.

I have two equally relevant but slightly different questions about the procedures. The clause relates to procedures in this country. I have never understood why if someone makes an application in, say, Harare, to come to this country, their appeal has to be lodged in Harare, even if it is to be dealt with here. Why can it not be lodged here instead of Harare? I think that the deadline for lodging an appeal is normally 28 days.

Often, the decision is given and, as the hon. Member for Woking said, there is consultation with the sponsor in this country as to whether the next step should be appeal or a new application. The appeal form is filled out in this country—I have regularly done this myself—and must be returned to the initial place of application to be lodged, only for it then to return to London. That is a nonsensical system. Has any thought been given to allowing the appeal to be lodged in Harare by the applicant or in London by their sponsor or someone else nominated by them? That would save on bureaucracy. It is not just a notional question: I once had terrible trouble getting a form back to Ethiopia to be lodged in time, simply because sending something to Addis Ababa at that time was very difficult.

I do not know whether my next point arises only under clause 67 or more widely. We have been discussing decisions made here, as some are, and

decisions made at foreign missions by entry clearance officers. Perhaps because I am a simple individual, I have never understood why some decisions are taken by Foreign and Commonwealth Office personnel and some by Home Office personnel—why all immigration and asylum decisions are not taken within one Department.

There may be a wonderfully persuasive argument why that is the case, perhaps to do with history. There may be a simple answer that has eluded me and many others. I have no more disparaging or more complimentary views about people in either Department. I have met many of them, and they do an extremely good job, for which I am grateful. In addition, Ministers in both Departments have been courteous when I have raised matters with them. However, it would help all concerned if we had to deal with only one Department.

Have the Government ever reviewed whether all immigration and asylum matters could reasonably be dealt with by one Department? The Foreign Office would no doubt say, ''No, that would be empire building by the Home Office'', and the Home Office would say the same about the Foreign Office. Departmental rivalry might well be involved, but I cannot understand why people's applications to come to the UK as asylum seekers or immigrants cannot be dealt with by one group of people. That is relevant because it would result in less complication and fewer procedural problems for applicants. As it is, they do not know whether officials or employees are from the FCO or the Home Office. Why cannot one Department deal with these matters?

Neil Gerrard (Labour, Walthamstow)

I just want to be clear about something that I hope I have got wrong. One aspect of the asylum process about which there has been much concern is the number of people whose claims have been rejected because of failure to return the statement of evidence form. There have been significant numbers of refusals relating to return of the SEF, and it has been argued that the period should be longer. I want to be clear that nothing in the clause will affect anyone in that position.

Rosie Winterton (Labour, Doncaster Central)

I hope to be able to provide reassurance. There is no connection with SEFs.

It is important for the IND to have streamlined procedures so that it is able to deliver faster, improved decision making and to save money. If applications are made in a standard form and in accordance with standard procedures, that is obviously helpful, and I refer again to a previous debate in which Opposition Members said that it was important to get the administration right. This is part of that procedure. We therefore need the power to lay down how those procedures should be followed, and the power to refuse an application that is not properly made. That would be a fundamental ground of refusal, and an appeal in that scenario would therefore be a waste of time and would clog up the process.

I assure hon. Members that we have no plans to prescribe any forms or processes for asylum and human rights applications in that scenario. We do not

intend people who make such claims to have no right of appeal. However, we have noted the points made by hon. Members. If the effect of a failure to comply is that no application is made, the clause is an unnecessary elaboration. We are considering the matter further, and may introduce changes on Report. I hope that that reassures the Committee.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

May I prompt the Parliamentary Secretary on the two less technical issues that I raised about the ability to lodge appeals here rather than in the country of the initial application, and about FCO and Home Office officials and whether we can move to a final, single Department structure?

Rosie Winterton (Labour, Doncaster Central)

Departmental changes are for the Prime Minister to decide. I point the hon. Gentleman to the success of UK visas, on which the FCO and the Home Office have worked closely and successfully together, but I take his points on board.

As for the Harare case the hon. Gentleman set out, the entry clearance officer needs to know the grounds of appeal, therefore it would not be appropriate for the case to be lodged in this country. That is a rather procedural issue. Procedural restructuring goes wider than the appeals process.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On the appeals process, I understand that the ECO would need to know the reason for the appeal. However, that does not mean that the appeal could not be lodged here, but that the notification would be sent so that any liaison about the papers could be done subsequently. That may be easier for the applicant and the appellant. On the wider issue, I should be grateful if the Prime Minister or the Minister in the Committee would let us know the justification for two different sets of civil servants from two Departments dealing in the same process, as I am intrigued. Will the Minister explain why, in 2002, two Departments are in this slightly odd marriage? They may work wonderfully and increasingly well together, but as with health and social services, the time has come to change two into one. Why has that not happened? I would be most grateful if the Minister explained it in a letter.

Question put and agreed to.

Clause 67 ordered to stand part of the Bill.

Clause 68 - Visitor or student without entry clearance

Clause 69 - Non-family visitor

Angela Eagle (Labour, Wallasey)

I beg to move amendment No. 292, in page 36, line 35, leave out from 'family' to end of line 36.

Eric Illsley (Labour, Barnsley Central)

With this we may take amendment No. 406, in page 36, line 36, leave out paragraph (b).

Angela Eagle (Labour, Wallasey)

I am pleased to see general support for removing the power to charge a fee for appealing. New regulations abolishing the fee came into effect on 15 May, and we see no need to retain the power to reintroduce it. The effect of both amendments would be to remove paragraph (b), but the Government amendment is the more technically correct. We should all welcome agreement to abolish not just the fee itself, but the power to reinstate it.

Humfrey Malins (Conservative, Woking)

I welcome the Government amendment. I accept the gentle rebuke that my amendment was less brilliantly drafted. I agree with the Government and thank them for tabling the amendment. These fees were strongly opposed by several bodies from the outset. I pay tribute to the Immigration Advisory Service for leading the campaign for abolition. It is indeed pleasing to see it in the Bill. I would have had a speech to make if the Government had not tabled their own amendment: I see no great enthusiasm around the Committee for that prospect, so I shall desist, but I have a question. The clause deals with family visitor appeals, so why is it headed ''Non-family visitor''?

Angela Eagle (Labour, Wallasey)

I thought that the hon. Gentleman might ask such a question. The answer, apparently, is plain English. The clause lists those people who do not have access to appeals. That is why it is headed ''Non-family visitor'' when it is, in fact, about family visitors. I have provided the parliamentary draftsmen's view of plain English and I make no further comment. I hope that I have at least explained why the clause is thus headed.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister does us all a service. It is a pity that my late constituent who appeared in ''Yes Minister'' and ''Yes, Prime Minister'' is not present to update us on the latest episode.

The amendment is welcome. The previous Conservative Government were wicked and evil for introducing charges for appeals. That is not the fault of the hon. Member for Woking, although I cannot remember how he voted and I have not been wicked enough to look.

Humfrey Malins (Conservative, Woking)

It is absolutely typical of the hon. Gentleman's generosity to me that he has not checked how I voted, and I am most grateful to him. I have no idea how I voted because it happened a long time ago. It is typical of the hon. Gentleman's spirit that he has not taken me to task.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It was 1992, and if a week is a long time in politics, 10 years is certainly a long time.

The system had unsatisfactory mechanisms and operated discriminatory processes that caused great grief, hardship and difficulties. I was pleased that Liberal Democrat Members, with significant support from Labour Back Benchers and much quieter support from hon. Members of other parties, held a late-night debate on the subject before the last election. Forcing a debate on behalf of my party to challenge the appeal system was one of the most useful things that I have done in the House. Shortly after the debate, a significant Opposition vote, which was supported by Government Back Benchers who rebelled against the Government, led to a reduction of the fees. I am grateful that the Home Secretary was clear and reached the view that it was administrative nonsense to keep a system going using a lower fee, given the impractical and discriminatory nature of the system. Charging a fee at even a lower level might harm people. There was strong and widespread opposition to the system. I shall not trouble the Committee with the details, but the number of appeals reduced significantly when the system was in place. Many people who wanted to attend weddings, funerals, christenings and religious ceremonies were not able to do that, and the review was beneficial.

We are grateful for the regulations. I think that I am right in saying that they came into force over the past seven days—

Angela Eagle (Labour, Wallasey)

On 15 May.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is the first opportunity that the House has had to recognise that, and I unreservedly pay tribute to the current Administration for completing the work that was begun under the previous Administration. I am sorry that we had the battle that we had, but it sometimes takes time for the penny to drop. I hope that many people will benefit from the delay.

The amendment is welcome and the clause is very positive.

Humfrey Malins (Conservative, Woking)

This is entirely my fault, but will the Minister repeat slowly—so that I can either listen to her or write down her words—the reason why a clause that relates to family visits is headed ''Non-family visitor''? If she gives me the answer in Latin, I might understand that more than if it were given in English.

Angela Eagle (Labour, Wallasey)

First, I thank the hon. Member for Southwark, North and Bermondsey for his comments. Many representations—including a large number from Labour Members—were made about the issue, which focused a lot of minds. The hon. Gentleman should not underestimate quiet opposition. It can be extremely effective, and I am glad that all members of the Committee have welcomed the reintroduction of the appeal, which was part of Labour's 1997 manifesto, and the subsequent final abolition of the charges.

My Latin is not as good as it used to be, and I know that we are not allowed to use foreign languages—whether alive or dead—in parliamentary Committees. I think that I only got as far as O level Latin, and I am not sure whether that would do the job. I shall explain to the hon. Member for Woking why the clause heading is ''Non-family visitor''. This group of clauses lists those who are exceptions from rights of appeal. Family visitors have a right of appeal, and therefore they are not exceptions. The clause is for non-family visitors, even though we all know that it is about family visitors. I hope that that is absolutely crystal clear to the hon. Gentleman.

Amendment agreed to.

Amendment made: No. 353, in page 36, line 40, at end insert—

'( ) Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'. —[Angela Eagle.]

Clause 69, as amended, ordered to stand part of the Bill.

Clause 70 - Student

Humfrey Malins (Conservative, Woking)

I wonder whether the Minister can explain why the clause, which patently concerns students, is not headed ''Non-Students''.

Angela Eagle (Labour, Wallasey)

Because it deals with those denied a right of appeal against refusal of entry clearance. The clause is about students—or potential students, who would, I suppose, be non-students. I think that it is all perfectly clear.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There is a logic competition going on. The Minister may not have done Latin beyond O-level as did the rest of us, but this is a logic test for us to pass.

I shall not repeat the hon. Gentleman's question, which posed itself, but I should like to ask a linked question, drawn from constituency experience, about applications made by students. I appreciate that it may be a matter for the Department for Education and Skills rather than the Home Office. We have all heard complaints about dud immigration advisers, and about dud institutions that purport to teach properly and give valid certificates but do not. There are far too many of them around. I have occasionally had cause to deal with such institutions in my constituency, some of which even pretended to be universities and offered exams for certificates and qualifications that did not exist.

I should be grateful if Ministers, in consultation with colleagues from the Department for Education and Skills, would consider requiring institutions that want to take students from another country to register. People come to this country with very little money and pay such institutions, which fleece them and leave them completely stranded with no qualifications. They often provide lousy teaching, and deal with any disciplinary or administrative matters badly.

I have heard of some really unsatisfactory experiences in which people were denied the teaching that they had been offered and courses did not live up to their expectations. That is a bit like the hotel industry in the bad old days, when people went to a resort only to find that the hotel had not been built. This problem is in that league. For me, this is the important issue in relation to students coming to the UK. We have some of the best institutions in the world and offer some of the best courses. Our reputation is among the best, but it is undermined by the rogues and fraudsters. I should be grateful if we could consider how we could deal with that.

Angela Eagle (Labour, Wallasey)

The Home Office works closely with the DFES in identifying bogus colleges, but the hon. Gentleman is quite right to identify registration or any other action to deal with such colleges as matters for that Department. However, I shall certainly draw his remarks to its attention.

Clause 70, as amended, ordered to stand part of the Bill.

Clause 71 - Appeal from within United Kingdom: general

Clause 72 - Appeal from within United Kingdom: ''third country'' removal

Angela Eagle (Labour, Wallasey)

I beg to move amendment No. 357, in page 37, line 43, leave out from 'appellant' to 'and' in line 45 and insert

'has claimed that his removal from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.42) as being incompatible with his Convention rights,'.

The amendment will enable the Secretary of State to certify a human rights claim at any stage in safe third country asylum cases. Current drafting means that the certificate can be issued only after the appellant has

already appealed against the asylum decision, which defeats the object of the certificate. The amendment puts that right.

Amendment agreed to.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 434, in page 38, line 1, leave out 'in his opinion'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to consider amendment No. 407, in page 38, line 2, leave out 'clearly' and insert 'manifestly'.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Amendment No. 434 concerns a matter that we have addressed before in another guise. Subsection (1) sets out when people cannot appeal about third country removal, which is another provision in the league of negatives rather than positives. At least it is not a double negative, which I suppose is a consolation.

Angela Eagle (Labour, Wallasey)

The vast majority of people can appeal, and the logic behind the drafting is that the definitions are the few exceptions to the general right to appeal.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am with the Minister, but there is also subsection (2), in which the negative does not apply and we have the exceptions to the exceptions.

The Minister amended subsection (2)(a), which defines the first part of the conditions in which subsection (1)—the ''cannot apply'' provision—does not apply. Subsection (2)(b) defines the other conditions, and says that subsection (1) does not apply when

''the Secretary of State has not certified that in his opinion the claim mentioned in paragraph (a) is clearly unfounded.''

Amendment No. 434 would remove the phrase ''his opinion'' and take away the Secretary of State's right to be subjective. Of course, a Secretary of State, who is subject to judicial review, cannot come to an unreasonable opinion. The courts would not interfere if it were an opinion to which a reasonable Secretary of State could have come--that is the usual test. However, many parallel pieces of legislation do not have that additional phrase. Indeed, the sufficient and more usual basis for the decision is that ''the Secretary of State has not certified that the claim is unfounded''. I do not see why we need the additional subjective test.

Amendment No. 407 tries to make the definitions as consistent as possible, not just for the lawyers but for us all. The end of the phrase as drafted describes the claim as ''clearly unfounded'', and the amendment would change that to ''manifestly unfounded'', which is again based on previous experience. That is a better option, first because it would retain the current wording for third country certification. In particular, there is plenty of case law for the description ''manifestly unfounded''. Therefore, there are plenty of ways in which adjudicators, tribunals and, ultimately, present and future Secretaries of State can make such a decision. Secondly, I understand that

''manifestly unfounded'' also has a European Union or European Community law basis. It is used regularly in that context and recognised in UK courts.

Perhaps the Under-Secretary can explain. I and those to whom I have talked might have failed to spot something, but the provision seems to give wider executive power to the Secretary of State and less opportunity to appeal. I am sure that the hon. Lady accepts that there is no general review power for a decision made at such a level, because the Secretary of State's decision obviously falls outwith review by the adjudicators or the tribunal.

I think that I am right to say that review by an adjudicator has existed in the past, when under previous legislation the Secretary of State has been given similar powers to certify cases that were manifestly unfounded. If that has always been so, it is clear that for the first time we are taking away one level of review. However, there may be a more innocent explanation, and I would be happy to hear it. We tabled a probing amendment, but it is based on our concern about the provision.

Humfrey Malins (Conservative, Woking)

I rise to speak briefly to amendment No. 407. I am glad to have the support of the hon. Member for Southwark, North and Bermondsey. He has deployed the relevant arguments and I shall not repeat them all. ''Manifestly unfounded'' has a legal meaning under European Community law and it is recognised by our courts. It is comforting to find a legal precedent.

''Manifestly unfounded'' has been used over the years, and we have become used to judges interpreting it in a certain way, so why are the Government departing from it to use ''clearly unfounded''? I am not sure whether there is a clear difference between ''manifestly'' and ''clearly''. If there is, I should be pleased to know what it is. I should also be pleased to know why ''clearly'' is used rather the more obvious word ''manifestly''.

Concern has been expressed about the phrase, especially if the Bill contains no provision for an independent review by an adjudicator of the Secretary of State's decision that a claim is unfounded. Provision has been made for review by an adjudicator when previous legislation has given the Secretary of State powers to certify cases as manifestly unfounded. If such a power was good enough then, why is it not good enough now? Why is ''clearly'' better than ''manifestly''?

Angela Eagle (Labour, Wallasey)

I hope that I can reassure Opposition Members that there is no difference between ''manifestly'' and ''clearly''. Both words have the same meaning. There is no difference in their effect, nor is a change in the policy implied by use of the word ''clearly''. ''Manifestly'' is not really in common use. There is an increasing feeling that statute should avoid words that have ceased to be part of everyday speech.

The debate on the clause reflects some of our earlier debates, in which a great deal of suspicion was expressed about the switch from ''is satisfied'' to

''thinks''. The change of words does not signify an intention to change policy, nor is there a different legal meaning. ''Manifestly unfounded'' in the EU context applies to asylum claims, not human rights claims. There is no direct crossover or implication in the readover from that.

To answer the question from the hon. Member for Woking about what might have happened in the past, there has been no previous provision for safe third country cases to be heard by an adjudicator where the human rights claim is clearly unfounded. The cases he mentioned are entirely different; therefore the arrangements are different and they have a different effect.

In respect of amendment No. 407, I hope that I have reassured Committee members that the Government are not trying to achieve a narrowing effect by using ''clearly'' rather than ''manifestly''. Anyone who cares to look in a dictionary will see that there is no difference between the meaning of those words.

I am not attracted to the idea of leaving out ''in his opinion'', as proposed in amendment No. 434. The Secretary of State cannot make an application ''clearly unfounded'' merely by certifying it. He can say that ''in his opinion'' it is unfounded. Like all administrative actions, the issuing of such a certificate based on the Secretary of State's opinion is the subject of judicial oversight in the courts. That remains the case in respect of the matter under discussion.

I hope that those reassurances will enable the hon. Member for Southwark, North and Bermondsey to feel confident enough to withdraw the amendment.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am reassured by the Minister's answer about ''clearly'' and ''manifestly''. I have not checked my thesaurus, but it is clear that those words have the same meaning. I accept the Minister's point that ''clearly'' is the more commonly used word, although many Committee members may consider that it would be nice to have a more consistent application of that principle, and that ''commences'' is another word that could be removed as part of that process. I will take further advice on the point, but it sounds fine, and it is helpful that the Minister has put those comments on the record because the courts can take guidance from them in future.

I will not press the amendment to a Division. I think that we agree about judicial review, but I want to take advice about the ''in his opinion'' issue. The provision appears to provide a greater opportunity for the Secretary of State to exercise flexibility or wider discretion, although that is as much a technical legal question as it is a lay reading question. However, we will want to return to those matters.

Humfrey Malins (Conservative, Woking)

I wish to press the matter a little further. The hon. Member for Southwark, North and Bermondsey appears to have concluded that he wants to withdraw his amendment, and I understand why he might decide to do that, but I have a couple of remarks that I want to put to the Minister. She asserts that ''manifestly'' is not in common use in this country, but that proposition is manifestly untrue—and I have just established that by using the word. She has said that it

is better English to use a word such as ''clearly'', but earlier today our debate was dominated by whether ''begins'' was preferable to ''commences'', yet commences is all over the Bill. Therefore, her argument is not strong.

The phrase ''manifestly unfounded'' is recognised by our courts, which is more than can be said for ''clearly unfounded''. The Minister also made it absolutely plain that there is not a scintilla of difference between the two phrases. Therefore, as ''manifestly'' is exactly the same as ''clearly'', there can be no principled objection to accepting amendment No. 407. I think that the Minister is about to be passed a piece of paper that says that there is an objection, but there cannot be an objection, given that our courts know so well the phrase ''manifestly unfounded''.

Angela Eagle (Labour, Wallasey)

It is manifestly true that the word ''manifestly'' can be used in parlance. My assertion is that, in general, it is not used as much as ''clearly''. Therefore, in the drive to make legislation more understandable—clause 69 provided an excellent example of the arguments in that respect—''manifestly'' has been replaced by ''clearly''.

The courts have already said that ''manifestly'' means ''clearly'' and ''clearly'' means ''manifestly'', so we are dancing on the head of an even smaller pin than we managed to get ourselves to dance on earlier today. I have assured the Committee that there is no policy difference, and no difference in policy intent, between the phrases ''manifestly unfounded'' and ''clearly unfounded''. That is what Committee members should be concerned about.

With that reassurance, I hope that the hon. Gentlemen will see that the point is one of style, not substance, and that the wording will not bear upon whether appeals will be heard. The phrase does not narrow or change the conditions in any way.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I reflect that it is happy hour in many pubs up and down the country, not that many of us get to them. The Minister is right that in the league table of matters that should divide us, this one of wording should not be near the top. I do not think that I am softer, less cynical or a bigger pushover than the hon. Member for Woking, but I was persuaded by the Minister's comments. If we can start to use clear English and this is the beginning of a process, I welcome progress and look forward to the wind of change blowing through the rest of legislation.

Angela Eagle (Labour, Wallasey)

I accept that, but as it has given me such trouble on this Bill, I am not sure that I am still in favour of that.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am sure that, in her moments of calmer reflection, the Minister will realise that progress has been made.

In the interests of happy hour agreement and conscious of the fact that there is a rather more controversial and important matter coming up that may divide the Committee, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72, as amended, ordered to stand part of the Bill.

Clause 73 - Appeal from outside United Kingdom: removal

Humfrey Malins (Conservative, Woking)

Although one of the shortest clauses in the Bill, clause 73 is significant. It states:

''A person who is outside the United Kingdom may not appeal under section 60(1) on the ground specified in section 62(1)(g).''

That sounds harmless, but several outside bodies including the UNHCR have expressed concern. As we all know, the UNHCR is greatly respected in the field of asylum and immigration. It would not express concern unless it was felt genuinely and strongly.

In short, the UNHCR finds much cause for concern in the clause and calls for its deletion. It says that the clause could potentially bar an applicant from appealing on the basis of events that occur after his removal from the UK, and that it is possible that an expression of a well-founded fear of persecution may gain further evidentiary weight from events occurring after removal from the UK. Clause 73 would prohibit applicants in such cases from relying on that to appeal on the ground in clause 62(1)(g). That fear should be addressed and, accordingly, I should like some guidance from Ministers on whether the fears so ably expressed by the UNHCR have merit before I decide how to vote on the clause.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Conscious of the time, I will give an example that puts the same question in a different way. In the past, I have made representations on behalf of constituents who have been put on to planes and sent home in error. The authorities have accepted that it was a mistake that the decision was not changed and the message that the people should be kept in this country did not pass down the line. Clause 73 will mean that such people would not be able to appeal at all, whether they started their appeal here and were incorrectly sent abroad during the process, or whether they had a right of appeal that they should have been entitled to exercise when they were here, but were sent away through an administrative error and were therefore barred from exercising it.

I have practical experience of that. There have been three cases in 20 years—three cases too many—in which people have been wrongly sent back. It is nonsense that people who desperately need their appeal to be heard can be deprived of rights that they need more than anyone else.

Angela Eagle (Labour, Wallasey)

I hope that I can reassure—

Sitting suspended.

On resuming--

Angela Eagle (Labour, Wallasey)

Before we were so rudely interrupted, I was about to say that the clause is very simple. It refers to appeals against removal from outside the United Kingdom. People can appeal against removal only if they are about to be removed. If they have already left the country and their asylum claim has been through all its stages and failed, it makes no sense to allow an appeal against removal from outside the country.

The hon. Member for Southwark, North and Bermondsey referred to three cases of unlawful removal and I have come across one or two. If someone is removed unlawfully, they can return to the United Kingdom and the appeal can be heard in the under the original process. However, we cannot have a surreal situation in which we allow people who have been removed or who are not in the UK to appeal against removal. That would not make sense. I hope that hon. Members accept that and will allow the clause to stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand the logic of the Minister's argument, but I recollect that certainly in one case and perhaps in two there was no option to return. It might be necessary to ensure that an appeal is dealt with even if the appellant is not within the jurisdiction.

Angela Eagle (Labour, Wallasey)

No.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

If people cannot physically return—if they were unlawfully kicked out and cannot return—they should not lose their right to appeal because, through no fault of their own, they are outside the jurisdiction.

The Government are properly engaged in conversation with the new French Interior Minister--I heard the Under-Secretary elaborating on that on ''The World Tonight'' recently--about Sangatte and the channel tunnel. We hope that there will be progress. The hon. Lady has heard me say that there is a logical argument for people having their cases dealt with without entering the jurisdiction in the first place. If we move to a situation in which British officials at Lille, Paris, Brussels, Calais or elsewhere, in addition to those on channel tunnel trains, can deal with asylum seekers who are not yet within the UK because they are on the other side of the channel, presumably the law would have to be changed. I am alerting the Government to the fact that if the Government are considering extra-territorial applications--I think they should and I believe that Europe is moving in that direction--the clause would appear to fly in the face of that policy.

Angela Eagle (Labour, Wallasey)

Under the Geneva convention, an asylum seeker must be in the country in which they seek protection to claim asylum. The appeal under clause 73 is an appeal against removal. The hon.

Gentleman is arguing that people who are outside the jurisdiction of the country in which they are claiming asylum should be able to appeal against being removed from a country that they are not in. That simply does not make sense.

If someone has been removed unlawfully after an appeal has been heard and turned down, or the time limit on making an appeal has expired, or they have decided not to appeal, they can return and continue their appeal from within the jurisdiction. Clause 73 covers all those eventualities and I see no reason to change it. We must not allow people to appeal against being removed from a country that they are not in.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall reflect and take advice on the Minister's comments. There appears to be a difference of opinion, but for now it is sufficient to leave the matter. I am conscious that we have yet to deal with a few more clauses.

Question put and agreed to.

Clause 73 ordered to stand part of the Bill.

Clause 74 - Earlier right of appeal

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 408, in page 38, line 7, leave out subsection (1).

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to take the following: Government amendment No. 358

Amendment No. 409, in page 38, line 17, leave out subsections (2), (3) and (4).

Government amendment No. 359.

Humfrey Malins (Conservative, Woking)

The clause raises a principle that I have alluded to on several occasions earlier in our debates. Many of us have a fundamental feeling about parts of the Bill that the Secretary of State is taking upon himself, his officials and immigration officers powers that ought properly to belong to the judiciary. Never is that more true than in clause 74, which states plainly in subsections (1)(a), (b) and (c) that the Secretary of State or an immigration officer can make a certification that appears to be final. It seems to say that if the Secretary of State—perhaps I would have a bit more confidence if it were just the Secretary of State—or any of his officials or immigration officers simply certify that, in their opinion, the person is seeking an appeal in order to delay his removal, that is the end of it. The person who should decide that is the adjudicator, who is a judicial authority.

I have lost count of the respected NGOs who have briefed me at length on the subject. The clause is worth a day's debate, because hon. Members from all parties would want to contribute at length from their own experience. I look at the hon. Member for Walthamstow, for example. I know well that his experience and expertise in the field are significant, and if I may say so, his reputation is very high. He is one of many on the Committee who would have something to say on the fundamental issue raised by the amendment, which is that we are moving to a situation in which we shall give the Secretary of State, his junior

officials and the immigration service powers that we know should be exercised by the judiciary. The IAS wrote strongly to me on the subject, saying that subsections (1)(a), (b) and (c) raise serious concerns on the grounds of natural justice and threaten basic principles of fairness.

The IAS says that the provisions make the Secretary of State judge and jury in his own cause and that it should be for an independent adjudicator and not the Secretary of State to decide whether there is a legitimate purpose for an appeal under the law. The powers are draconian and give the Executive extensive powers to deny rights of appeal against their own immigration decisions to a broad range of people, who may not have access to an independent adjudicator. The grounds on which the Bill provides the Secretary of State power to deny rights of appeal go to substantive issues that are at the heart of the appeal.

The Government's position is already protected against unmeritorious appeals by the fact that appellants have to pass a merits test before they are entitled to controlled legal representation to pursue their rights of appeal. Look at subsection (1)(a), which allows the Executive to certify a claim to prevent a right of appeal on the basis

''that the person was notified of a right to appeal''

on the immigration decision currently at issue at the time of another immigration decision.

The IAS and others submit that notification of rights to appeal on matters that were not at issue at the time of a previous immigration decision, especially when those matters may not have been contemplated, is extremely unfair. Any number of factors could affect a person's circumstances from one immigration decision to another, including the availability of additional evidence, changing family circumstances and the development of compassionate circumstances. The comments that apply to paragraph (a) apply also to paragraphs (b) and (c), which are the subjects of the amendment. Amendment No. 409 would delete subsections (2), (3) and (4) because similar concerns arise in relation to them as arise in relation to subsection (1).

In addition, the provision that the Secretary of State will decide what a person should have included in a previous statement made for a different purpose is alarming. In effect, he is empowered to decide that a person should have included all matters affecting any potential immigration decision in any circumstances at any time. That is likely to lead to statements being drafted in omnibus form, which will have further implications in terms of time and money.

I beg the Committee to realise that both the amendment and the whole subject are important. We all know that our asylum system in this country is in need of some reform. The papers tell us of some of the problems in the asylum world, but let it not be thought that the abuse of the system, if there is abuse of the system, is limited to or mainly concerns spurious appeals. People say that judicial review is the great devil, but is it? It is worth pondering that in the past couple of years there have been only about 300 or so

judicial review cases per year—we will come on to that—and that more than 50 per cent. of those were allowed.

One problem in our asylum system is the Government's inability to enforce their removal decisions, a matter on which we have previously dwelled. One problem is the Government's inability to keep track of asylum seekers. The problems that we see in the newspapers exist further away from the appeal system. By going flat out to restrict appeals and give itself powers, the state is not looking at the problem from the right end of the telescope. In clause 74, the Government are saying, ''We, the Executive, propose to reserve unto ourselves the power to say that a person can or cannot appeal. We are effectively not open to challenge.'' That effectively ties the arms of the judiciary, who are the right people to decide those matters. At the end of the day, is it not right that a free, independent judiciary is utterly to be trusted?

A clause that says quite plainly that an official at the Home Office or an immigration officer may make a certification that could have a profound effect on the life of an applicant is very unhealthy. The Government should take it away and think to themselves, ''While seeking a speedy system, how can we ensure the appropriate involvement of the judiciary at every stage, rather than cutting it out and taking on powers that years ago we would have been rightly reluctant to take on?''

Neil Gerrard (Labour, Walthamstow)

Subsection (1)(a) states that a person may not appeal if they have been

''notified of a right to appeal . . . against another immigration decision''.

I am sure that many of us know of a significant number of constituents who have been represented by someone unscrupulous or, more often, incompetent. They were not informed that a decision had been taken on their case in time to appeal, or they were informed but the representative neglected to submit the papers that would secure an appeal. I have seen several such cases. How will the clause affect such people? The 1999 Act contains a caveat of reasonableness in deciding whether someone should be granted a second appeal. I am worried about what will happen to people who lose their right to a first appeal through no fault of their own, but through the fault of someone incompetent who is dealing with their case.

I am not clear which circumstances subsection (1)(b) applies to. It stands to reason that people who bring appeals under section 60, which relates to decisions to remove someone from the United Kingdom and deportation orders, are seeking to delay their removal from the United Kingdom.

There is a danger that a clause that denies people the right to appeal via certification will lead to many lawyers seeking judicial review of the decisions. It would be self-defeating to end up substituting a judicial review for an appeal. I have never regarded judicial review as an adequate substitute for a properly heard appeal, as it does not deal with the same issues.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Committee has already heard from two well-respected colleagues. I want to add a comment about our grave unhappiness about the amendment, which in effect seeks to remove the first four subsections. We have properly spent much time on the structure of the process of going to an official, going above the official to an independent adjudicator, and going above the adjudicator to an independent appeal tribunal. The amendment would undermine all that at a stroke. It suddenly allows someone on high to intervene and say, ''Sorry, no more process.''

For the different reasons given by colleagues, this is one of the most oppressive and authoritarian clauses, and a change that should be resisted in Committee and on the Floor of the House. The provision has all the tell-tale signs: it talks about the opinion of the Secretary of State or, as the hon. Member for Woking said, an immigration officer, so it can be the opinion of the lowest person in the hierarchy as well as the highest.

The hon. Member for Walthamstow made the point well. The presumption is that everyone has been properly advised and represented at every stage of the process, but over the years my staff and I have spent hundreds of hours—I have no idea how many—trying to undo failures of advice. People have missed deadlines. They have paid money and been told that their case and appeal have been put in when they have not. In reality, the provision means that there is suddenly no justice for those cases at all, and we are not talking about someone's right to get into the final of ''Pop Idol''. This is about the right of people to stay in a safe country, with their family, and all the other issues.

There are various reasons why the provision is unjust. It presumes that the Secretary of State knows best, but someone could have included a case by way of an application or an appeal at a time when that might not have been in their mind or indeed appropriate. Let us consider the list in clause 60(2). There may be one application and one appeal in the pipeline. It may relate to a refusal of leave to enter the UK, because someone was stopped when they arrived at the airport.

In fact, circumstances in the place where the person has come from may have changed, and they may wish to adduce a second ground in relation to the appeal, but that is precluded. The Secretary of State or an immigration officer can intervene and say, ''No, you can't raise that. You should have raised it before.'' There is no opportunity for the person to put their case fairly or for an argument to take place. It seems to me, and to those who do this sort of work every day, that the system is suddenly tilted completely in favour of the Government and the state, and against the applicant.

We are all trying to be brief because we are unreasonably constrained by the guillotine on the Committee, but various clauses from this point onwards are serious, threatening and worrying. This clause is only the first of them. The presumption that the Secretary of State knows best allows for only a potential form of review, which might at best be

undertaken on the papers and without any opportunity for argument. However, a person might be represented by someone who is incapable of putting a case well on the papers. I have seen appalling appeal cases made that have omitted all the best points. I have seen solicitors and other representatives charge money for forms that include only the standard words and give no indication of the facts. That makes it clear that they have never read the papers or taken into account what people have said.

The poor people affected, who may speak no English and have no relatives in this country, have to rely on someone in a position of trust and confidence. I am sure that the Minister, in her heart and mind, does not believe that that is a fair system. I ask Ministers, as human beings, to imagine themselves in the position of the applicant and appellant and to realise how oppressive the system is.

I hope that the amendment will be accepted now. If it is not, I hope that the Government will return with alternative drafting. Clause 74(1) is so significantly flawed and oppressive that the only solution is to remove it and start again. It is not justified by the Government saying that they want a streamlined system. This is a streamlined, co-ordinated system with absolute power given in many circumstances to a Secretary of State and no proper recourse to someone outside the Executive. It is wrong. It should not be here and it will be resisted all the way.

Rosie Winterton (Labour, Doncaster Central)

I have listened carefully to the powerful speeches that have been made. I hope that I can give some reassurance about some of the points. The clause is an important part of setting up a process that is clear from the beginning and avoids multiple applications and the inherent delays in the system that go with them. It is not a great sea change from the present system. The one-stop system has proved successful in encouraging applicants to give their reasons for staying here at an earlier stage and enabling us to deal appropriately with those who save up grounds that cannot succeed in order to delay removal. We can certify such late applications or claims so that a refusal does not currently attract an appeal. We are now building on that system and at the same time making its operation simpler and more consistent.

Under clause 92 we will be able to require a full statement of grounds from any applicant, not just asylum and human rights claimants. We will be able to make the requirement at any stage during the application. We will try to ensure that the form is clear, easily understood and available to people at the earliest opportunity so that they are aware from the start that this approach will be taken. That will enable us to determine any person's case comprehensively and accurately, in the light of all relevant facts, in one procedure. If our determination is negative it will enable an adjudicator to consider all the relevant issues at one appeal hearing. If the appeal is dismissed it will enable us to remove the person without time-wasting and resource-wasting delays. Many late representations are made simply to delay the inevitable.

Whereas under the 1999 Act we can certify as late only an application made after a fully determined appeal has taken place, we are extending the concept to people who choose not to appeal, or choose not to comply with the disclosure requirement when had they complied they would have had a right to appeal. Those who comply will have a full opportunity to appeal on asylum or human rights grounds and have a comprehensive review of their case. Those who fail to take the opportunity will run the risk that there will be no appeal against a late claim because it will be certified under this provision.

Amendments Nos. 408 and 409 would together delete clause 74. That would render the one-stop system impotent and leave applicants to decide whether they wished to comply. That would be a retrograde step, taking us back to the position before the 1999 Act, when people were able to extend their stay in the UK by making a series of applications and appeals. Amendment No. 408 would allow a person to withdraw his appeal and then appeal on the same grounds later. We do not believe that the appeal system should be open to that kind of manipulation. Of course, an appellant has the right to a full and fair hearing, but there is a responsibility to ensure that we can prosecute the appeal promptly. It is not fair for those who comply with the requirements and ensure that they bring all the grounds of appeal in one go to be frustrated by, and subject to, delays caused by people who are evading the system by withdrawing or abandoning an appeal, or by failing to appeal at all.

Humfrey Malins (Conservative, Woking)

If the Secretary of State or his junior official made a certification, what avenue of redress would be open to the applicant?

Rosie Winterton (Labour, Doncaster Central)

Judicial review is open to the applicant. Several certifications have occurred under the current system to which there have been very few judicial challenges.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

What would the Minister's view be if the amendments replaced

''the Secretary of State or an immigration offer''

with ''the adjudicator'' or ''the tribunal'', which would mean that the independent judicial authorities would take decisions?

Rosie Winterton (Labour, Doncaster Central)

That would take up more of the adjudicator's time. The certification is discretionary and can be changed at any time. I shall give an example that might reassure the hon. Gentleman.

Humfrey Malins (Conservative, Woking)

The Minister's objection to the proposal by the hon. Member for Southwark, North and Bermondsey is that it would take up the adjudicator's time. I cannot believe that the Minister means that seriously. Of course it would take up the adjudicator's time, but that could not be a fundamental objection given that so many more adjudicators are being appointed and that time spent by an adjudicator is time saved by the court that hears judicial reviews.

Rosie Winterton (Labour, Doncaster Central)

If I can go through more of the explanation, it might become clear why I think that having the process is preferable to not having it, which the amendments would provide for.

Amendment No. 409 is even more destructive because it would allow applicants to appeal more than once on the same grounds, to ignore any notice issued under clause 92 and to hold back grounds of application and appeal until divulging them was strategically convenient.

I shall touch briefly on Government amendments Nos. 358 and 359. They provide that the Secretary of State can deny further rights of appeal if appeals have already been brought under clause 60(1). In doing that, the amendments curtail that second or subsequent appeal if issues are raised that could have been raised at an earlier appeal.

I shall address other points that were made, and I shall use an example that might paint a picture of how the measure will work. A person who was given leave to enter this country as a visitor from another country might apply for asylum toward the end of that stay. After applying for asylum, the person would be asked to state any additional grounds for the application to remain in the United Kingdom. Let us say that that person's asylum application is refused, and she appeals. At the appeal she says that she is worried about human rights, but that had not been mentioned before. However, all grounds for wanting to stay should have been given under clause 92(4). Therefore, her human rights claim could be considered by the Home Office, certified and refused. She could not appeal against that decision, but she could ask for a judicial review of the decision. If, however, during her appeal she said that circumstances had changed and her brother had been tortured, and that she wished to apply under article 3, the Home Office could reconsider the case and decide not to certify it.

If a person has to make a new application because of changing country conditions, we will not certify. The whole idea of making the certification discretionary is that it can be changed at any time during the procedure. It does not have to be seen by an adjudicator in that sense, but it can be changed if there were obviously new reasons why the person could not produce the evidence at the time.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand the argument. Clearly, there are occasions when discussion is exercised to the benefit of the applicant. That does mean that we must have a law that says that it has to have the right to act to the detriment of the applicant. Of course, people are always in favour of the exceptional circumstances test being used by Secretaries of State when they use their discretion. We are arguing that they should not have the discretion to take away rights that could reasonably be left to the independent authorities.

Rosie Winterton (Labour, Doncaster Central)

The hon. Member for Woking referred to the adjudicator. If the new circumstances that I have described were raised during the appeal, the adjudicator could consider them. If there were changing circumstances—and there were good reasons for that—the adjudicator could consider the matter.

As for someone being poorly represented, the person can appeal out of time to an adjudicator. If that person's explanation were accepted, the application would not be certified.

The rest of the debate is in Hansard.