Asylum and Immigration (Treatment of Claimants, etc.) Bill

Public Bill Committee, 15 January 2004.

Standing Committee B

Clause 7 - Failed asylum seekers: withdrawal of support

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment No. 85, in

clause 7, page 7, line 11, leave out '14' and insert '21'.

David Taylor (Labour/Co-operative, North West Leicestershire)

With this it will be convenient to discuss amendment No. 90, in

clause 7, page 7, line 19, leave out 'vary' and insert 'extend'.

Mark Oaten (Liberal Democrat, Winchester)

At Tuesday's sitting, the Minister helpfully explained the process behind a decision to remove benefits, and the length of time taken to inform families of such a decision. Although I disagree on the principle behind clause 7, the Minister reassured me that the Government are giving a lot of thought to ensuring that safeguards are in place and that individuals will have plenty of time to be informed of the consequences of their decision.

These are probing amendments designed to ascertain the reasoning for allowing only 14 days from the notification of removal of a benefit to the termination of that support. It would be particularly helpful if the Minister could answer some questions about that, and clarify whether 14 days is the standard period allowed from notification to termination. The period of 14 days would apply to the proposed

''fifth class of ineligible person'',

but is it different for people in the other classes set out in the Nationality, Immigration and Asylum Act 2002?

The Immigration and Asylum Act 1999 includes the provision that support for failed asylum seekers must be terminated 21 days after receipt of the final decision on the asylum claim. Why is the period 14 days in this Bill? Given that the issue is so sensitive, it is odd that a period of 14 days has been used. I hope that the Minister will explain and clarify why this case is different.

Amendment No. 90 is designed to obtain clarification from the Minister about our concerns that clause 7 allows the Secretary of State to vary the period of 14 days. Would that be a variation below 14 days, or is the intention to allow more than 14 days? We would all hope that the intention is to allow more than 14 days in certain circumstances, and I hope that the Minister will clarify that. If it is not the intention to allow fewer than 14 days, that should be in the Bill. I hope that she will help with those simple questions.

Humfrey Malins (Conservative, Woking)

I associate myself with the remarks made by the hon. Member for Winchester (Mr. Oaten). Fourteen days might not be long enough. In many criminal proceedings, the time allowed to register an appeal is longer. As the hon. Gentleman said, to ''vary the period specified'' might be construed as meaning to vary it downwards to an impossibly tight schedule. I hope that the Minister will provide assurances that such a variation would either not be downwards, or would require approval from the House.

Beverley Hughes (Labour, Stretford and Urmston)

I support the spirit of amendment No. 85. The hon. Member for Winchester wants to ensure that the process is not precipitous and that we allow enough time for families to leave voluntarily, or for opportunities to enforce a removal before certification, as we discussed in the previous sitting. I am clear that the purpose of the amendments is to ensure that families have adequate time to leave voluntarily and I have no dispute with that principle. However, we must remember that, in the entire process that I have outlined, the period of 14 days applies only after the Secretary of State has certified that, after many attempts, the family has failed to leave or to co-operate with arrangements to enable them to leave. That makes the situation different from the other circumstances that were outlined.

I can confirm that in other legislation there is a period of 21 days for single people for whom support is withdrawn once appeal rights have been exhausted. I envisage the total process being considerably longer than 21 days. We have agreed to write to inform people formally of a notification by the tribunal that appeals have been exhausted. We have also agreed to write to give them an appointment for an interview. Clearly, we will have to give them notice of that. We have also agreed that, if people continue to fail to turn up or to co-operate, we will issue a third letter warning them that support may be withdrawn, before we finally reach the certification letter, which says, ''I'm sorry, you haven't co-operated.''

Before the 14 days, there will be a period, which we have yet to work out in detail, to allow for three letters and notice of an appointment. I imagine that we are talking about at least another fortnight in that regard, so the period is already more than 21 days.

Edward Garnier (Conservative, Harborough)

I apologise for being a little late, Mr. Taylor. I also extend to you the heartiest Leicestershire welcome.

Would not one concern that the hon. Member for Winchester no doubt has about the period in clause 7(1) be mitigated to some extent by adjustments to clause 10? Even if people arrive at a position in which they are certificated as failed asylum seekers, so long as they have been through a proper judicial process and they feel that they have been properly dealt with by a system that they understand and respect, the 14-day period will have a less damaging and hurtful effect than it might otherwise have.

Beverley Hughes (Labour, Stretford and Urmston)

When we reach clause 10, the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Tottenham (Mr. Lammy), will make it clear that the revised arrangements for a single tier of appeal will give people a fair opportunity to state their appeal and will not be a diminution of the opportunity to do so, or the quality of that. Notwithstanding that, hon. Members argue that they want to be sure, in cases involving children, that there is adequate time for families to be clear about the options and some of the consequences and that, if it comes to leaving, which it will do, one way or another, with families in this category, they can do so in a dignified way and make arrangements.

I hope that I have made it clear that the process that we envisage will, before certification, involve a period that, in addition to the 14 days required in legislation, means that the total time exceeds that in legislation at the moment for other groups.

Amendment No. 90 would ensure that there was a minimum of 14 days between receipt of the Secretary of State's decision that support is to be withdrawn and that taking effect. I am happy to state on the record that we have no plans to limit that period. I am wary, however, and it would not be sensible to limit the operation of the clause by saying that it will only ever be possible to extend the period. We do not know what may happen in future. The process may be changed quite substantially. The amendment would limit us unnecessarily. It is normal in legislation at this stage to use a term such as ''vary'', because it gives us options.

I realise that that will not be any comfort to the hon. Member for Winchester, because he wants me to close down one option, but the Government have no intention of reducing the period of 14 days. We feel that there should be a statutory minimum for the period between certification and any enforced removal. That is right in the circumstances. We do not want to reduce that, but none of us can predict what may affect consideration of these processes. It would not be good law making to constrain ourselves at this point. I hope that the hon. Gentleman can accept my assurance that I have no intention of reducing the period of 14 days and withdraw his amendment on that basis.

Mark Oaten (Liberal Democrat, Winchester)

The Minister has been extremely helpful. She says that it is not good law making to narrow down the option. I could argue that it is not good law making from the Opposition's perspective merely to have a Minister's promise or commitment in Committee about something in the Bill that is unclear. I am uneasy about that. It would be hard to envisage circumstances where one would wish to vary the time period downwards. It would go into someone's natural period of justice and I am uneasy about it. I accept the Minister's reassurances and we may want to revisit that at a later point.

On the wider issue of whether it is 14 or 21 days, I understand the Minister is saying that, in this particular fifth class, we are allowing a longer period. As there will be a generally longer period, there is an argument for saying that it should not be 21 or 14 days. She has yet to explain how long it will be. We have

some detail about the letters and the interview but we need to know whether that will all be done in a week, two weeks or four weeks. Until we have clarity about how long the process, which I think is helpful, will take, it is difficult for us to make a judgment about the 14 and 21-day point.

For the sake of a week, it would be a tidier system if the fifth class were in line with other classes. It must make sense to have the same principle in place. Not having it in place could lead to confusion. Individuals may assume, perhaps because they have been through the process before, or their advisers may assume that the period is the same as it is for other classes. It is sensible to have tidy legislation that is similar to the other processes that are in place. The Minister admitted that these cases are more complex. That is why the Government want to put these processes in place. If these cases are more complex, it is inconsistent to have a period that is much shorter than the one for less complex cases.

Finally, I may be misinterpreting some of the subsections, but in some of the other classes there might be an ability to appeal against the determination to terminate the support. My reading of the clause is that no appeal may be brought for the fifth class on the removal of support. If that is being taken away, my layman's interpretation is that another tier, another period, is being taken away for this class. That suggests that having the 21-day period rather than the 14-day period would be helpful. We will need to revisit these issues. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment No. 88, in

clause 7, page 7, leave out lines 13 and 14.

I was simply going to ask the Minister to explain what subsection (2) means, because there is some confusion about that. I have tried to speak to some of the charities and the various bodies that have lobbied us on the Bill. Subsection (2) reads:

''Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).''

Is the purpose of the subsection to exclude the possibility that benefit or support could be given to children? As the Government's intention is to remove the support for the parents, do they want to avoid a loophole that would mean that support could be given directly to children? The family would therefore not suffer because of losing their benefits as the support could be targeted on the children. Is it the intention of the subsection to remove that possibility? I should be grateful if the Minister clarified that point.

Beverley Hughes (Labour, Stretford and Urmston)

The effect of subsection (2) is that the support normally available through the asylum system would be withdrawn from all the dependants of the principal claimant, so National Asylum Support Service support would cease for everyone, contingent on a principal applicant's claim, which would include the children. Hon. Members have alluded to the extent to which withdrawal of NASS support puts children at risk. If it got to that stage, the children would come within the province of legislation that applies to children generally—the Children Act 1989.

I appreciate that this is a probing amendment but I cannot accept it because it would frustrate the intention of the clause, which is to try to get people to leave voluntarily and to accept that, if they do not, support will end, if the family could continue in part to carry on getting support through the asylum system. That is why the whole family—all the dependants contingent on a claim—would come within the remit of clause 7.

The amendment would send a muddy message, when we want to send a clear message that people should return home, that we will help them to do so together and that if they do not co-operate with us we will not support them as a family indefinitely. For example, we cannot remove a family who should leave the UK but have not done so because they have not co-operated with attempts at redocumenting them, and there is no redocumentation. We want to ensure that prior to that point being reached we get the co-operation of those families to enable us to return them.

I could say more, but the hon. Gentleman asked a specific question. I have tried to explain that I cannot accept the amendment because it would cut through the intention of the clause significantly.

Mark Oaten (Liberal Democrat, Winchester)

It was a probing amendment. My intention was to obtain clarification of what the subsection meant and for the Minister to put on the record that it is the Government's intention not only to remove benefits directly from the parents involved but specifically to ensure that in doing so mechanisms are in place to remove benefits that could go to individual children. The Minister has been clear about that. She wants not only to target the parents but to ensure that individual benefits could not go just to the children, even if they have been removed from the parents. We disagree with that, but at least I am clear what the Government's intentions are. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 35, in

clause 7, page 7, line 15, leave out from '(1)(d)' to end of line 18 and insert

'the Secretary of State shall cause a copy of the certificate to be handed personally to the person and the person shall be treated as receiving the copy at the moment it is handed to him.'.

David Taylor (Labour/Co-operative, North West Leicestershire)

With this it will be convenient to discuss amendment No. 89, in

clause 7, page 7, line 17, after 'address', insert

'and to the person's representative'.

Humfrey Malins (Conservative, Woking)

This is a probing amendment, on which we shall not vote. It relates to the method of the certificate's delivery to the person concerned.

On the face of it, there is no valid objection to the Government's proposal to deliver that certificate by first class post. However, there are one or two different issues in relation to asylum seekers that make the amendment worth discussing. Unlike much of the population, the asylum seeker might not have a permanent or fixed address, or an address where post

is readily received. There are many types of address in this country, and the delivery of a letter can be difficult—particularly in blocks of flats, as I know from my judicial experience—and is often not completed satisfactorily because of the nature of the building. Furthermore, asylum seekers might be more on the move, more of a floating population.

In the vast majority of cases, the Government's proposals will work out satisfactorily. However, the Minister should be aware that the receipt of a document that has been merely posted to an asylum seeker may not be as guaranteed as it would be if posted to more permanent members of the population with more permanent addresses.

Tom Harris (Labour, Glasgow Cathcart)

Does the hon. Gentleman agree that a benefits agency officer delivering a letter by hand might not be able to identify the person to whom he must give it? To give an example, the Mitchelhill flats in my constituency are occupied by hundreds of asylum seekers, and it would be possible for an officer to misidentify a person. Has the hon. Gentleman considered that?

Humfrey Malins (Conservative, Woking)

The hon. Gentleman makes a good point, in a sense about the same kind of difficulty that I have mentioned. In the type of blocks of flats that he refers to—he will have much experience of this—the delivery of the post can be difficult, as well as the one-to-one dealings. I put that to the Minister so that she can respond. There may be an argument for recorded delivery.

There is an argument, which the hon. Member for Winchester will advance with his amendment, for the duplication of the certificate and for that duplicate to be sent to the person's representative. For example, if one is a solicitor on the record, a court document is always properly served. My probing amendment points out that there are one or two handling difficulties, which I hope the Minister will address.

Edward Garnier (Conservative, Harborough)

I wanted to ask the Minister one or two brief questions on the subsection, and my hon. Friend's amendment gives me that opportunity. I want to be assured that the normal rules applying to the service of documents would not be excluded by the words that begin on line 15 of page 7 of the Bill, and that that would not be the only means by which the service of a document could be proceeded with. For example, personal service of the certificate or sending it to the representative of the person will do, but I assume that the Government are trying to ensure that, if all else fails, they could post the certificate and that that would be deemed good service.

I accept that there will be practical difficulties, as has been suggested by my hon. Friend the Member for Woking (Mr. Malins) and the hon. Member for Glasgow, Cathcart (Mr. Harris), because of what has been explained, and not least because of language problems. I would have thought that the ideal—of course, the best is often the enemy of the good—would be to ensure that the certificate be handed personally to the individual. That will not always be possible, but as long as I am assured that we are not limiting ourselves to serving by post, and that all other methods

are sensibly available, I would be happy to join my hon. Friend in not pressing the amendment to a Division.

Tom Harris (Labour, Glasgow Cathcart)

Notwithstanding the other comments that have been addressed to the hon. Member for Woking, I do not have too much difficulty with the clause as it stands. However, I have one or two reservations that I hope the Minister will deal with. There is the problem of language, about which the hon. and learned Member for Harborough (Mr. Garnier) spoke. Many asylum seekers have come to me for advice and help without even being entirely clear about their own address. Such people have often given me information that has subsequently turned out to be incorrect. Occasionally, I have to give them the benefit of the doubt and assume that that is not a deliberate attempt to mislead me, or delay the appeals process. Nevertheless, there is sometimes some confusion in the minds of some asylum seekers about their exact status in local authority housing.

Can the Minister answer a question about a specific matter? I have been in touch with her Department and the immigration and nationality directorate on a number of occasions when the Home Office, or IND does not have the correct address for asylum seekers. For example, if a letter is addressed to an individual in a block of flats, it is sometimes easy to get the flat and block number reversed and often a number of communications do not reach the intended person. I am sure that it is the same in your constituency, Mr. Taylor. On various occasions it has turned out that my constituents have not attempted to give the wrong information about an address, or to avoid detection by the authorities. Instead, there has been an administrative error and the Home Office, and occasionally an individual's lawyer, has sent many communications to a particular address, only to find out weeks later that, simply because two numbers were reversed, those have not reached them. That problem has affected both the Home Office and individuals' solicitors.

I would be happy with the clause, provided that my right hon. Friend reassured me that every measure will be taken to ensure that such an important communication is delivered to the correct address. Where asylum seekers have not been entirely truthful about their last address—and that does happen—it is their responsibility and the Government should take no responsibility for any confusion arising from that. However, I am concerned that processes in IND have led it to hold out-of-date, and occasionally inaccurate, information about asylum seekers' addresses—but that is not their fault.

Mark Oaten (Liberal Democrat, Winchester)

I support the amendment tabled by the hon. Member for Woking. The point was well made about the need to ensure that the certificate is handed to the individual concerned. That is important. The hon. Member for Glasgow, Cathcart explained clearly why that could be difficult, particularly because trying to gain entry to some tower blocks is complex. It is

critical that this measure is accurately administered, and that there is a sign-off when somebody has received the certificate, so that there is an assurance that they have got it.

I commend to the Committee and the Minister our suggestion that a copy of that certificate go to a nominated representative. It is not inconsistent with the Conservative amendment and runs alongside a system of registering and ensuring that the individual's certificate has gone to them. That may lead to work being duplicated, but on such sensitive matters it would be worth putting in place the safeguard that another copy has gone to somebody who is in contact with the asylum seeker, particularly if there are language or interpretation issues around what the certificate means. It would be helpful if we made sure that a representative had a copy.

Can the Minister comment on the merit not only of the suggestions about the certificate, but of having a similar system in place for the letters and, in particular, the opportunity and offer of an interview? That is important, as the Government will interpret a failure to respond to the letter or to the interview as non-co-operation. What sometimes could seem to be non- co-operation could be a failure to receive the letter or the request for the interview. The argument in respect of the certificate is well made, but the case for a similar system for other parts of the process that lead up to the certificate is also important.

Beverley Hughes (Labour, Stretford and Urmston)

Amendment No. 35 would require a certificate issued under clause 7 to be served personally on the applicant whose asylum claim has failed. The amendment is a probing amendment and I hope to assure the hon. Member for Woking about our proposals. The purpose is to ensure that the applicant is fully aware of the consequences of his actions and that there is no slippage in the process, which means that someone is in doubt or is ignorant of the fact that support could cease 14 days after the certificate is issued. I agree entirely that the family must understand what could happen if the view were reached that they can leave voluntarily but they have not done so and not co-operated.

I have made it clear that the process will involve an interview with the family and a warning letter prior to the issue of the certificate. That will give us the opportunity to make it clear at the interview the consequences of failure to leave. We can explain clearly each stage of the process from that point, including how, if necessary, a certificate will be issued if the family remain here. There is not much difference between the hon. Gentleman and the Government on that point.

To require in law that the certificate must always be served personally could have consequences that I suspect the hon. Gentleman may not have intended. For example, I have said that we will invite the family to an interview as part of the process. If the family did not attend the interview and did not contact us to explain why, we would issue a further letter explaining that support could be withdrawn. If the family still did not co-operate, we could certify that they failed to take the necessary steps. In addition to the special

milestones in the process that I have outlined, because their claims had failed, the families would be required to report to us regularly, usually on a weekly basis.

Tom Harris (Labour, Glasgow Cathcart)

My right hon. Friend said that amendment No. 35 would oblige the Secretary of State in each case to have the letter hand delivered to the family. Can she confirm that the unamended subsection would give flexibility, so that not only a first class delivery would be considered?

Beverley Hughes (Labour, Stretford and Urmston)

I was about to come to that point. It was raised by the hon. and learned Member for Harborough. As I explained, families will be reporting to us during the period, usually on a weekly basis. In most cases, we would want to use that reporting opportunity to serve the certificate. It would be a personal service, although not necessarily at the point of issuing the certificate, but at an earlier stage in the process.

We want to pursue the potential for personal service because personal contact would be more effective in getting people not only to understand but to co-operate. We have already experimented with personal service in certain circumstances with other applicants and found that to be the case. I confirm that the clause, as drafted, contains a bottom line, which is a first class letter and that will be deemed to have been received two days after posting. It does not preclude other forms of notification, including personal service. When possible, particularly when we can combine that notification with the family's next date for reporting, we will use that opportunity to serve the documentation personally and then explain. However, if the family did not attend the milestone interviews in the process—if they were trying to frustrate the process by not appearing—and the Bill required us to serve the documents personally, being unable to take the process further because we could not find the family would allow those intent on frustrating the process to do so.

We will look closely at the best way of issuing certificates. The most appropriate time may be on people's reporting date. I hope that I have assured hon. Members that, although we will try to use personal service when possible, we must include a provision in the Bill that gives us a bottom line. That is the purpose of the subsection.

Amendment No. 89 would make it obligatory for us to contact the applicant and the legal representative at the same time. In some instances, we will already have been in direct contact with a representative who is acting on someone's behalf. If there was a representative, we would not exclude that person from the interviews earlier in the process, because it is in our interests to have a representative to ensure that the applicant fully understands the process that he or she is going through and its consequences. I have said to officials that, as a matter of policy and practice, if the certificate is served by letter, at the same time as the first-class letter is sent out to the applicant, a letter will also be sent to the legal representative, if we know that there is one.

I hope that that may reassure my hon. Friend the Member for Glasgow, Cathcart on his point about problems with an address—although I emphasise again that certification comes at the end of the process, so we would have obtained information about that at an earlier stage. However, if there was an error in the address, there would be some safeguard in sending the letter simultaneously to the failed claimant and to the legal representative. Although that does not give a cast-iron guarantee, I hope it reassures my hon. Friend that if there was a problem it would be likely to be spotted.

Edward Garnier (Conservative, Harborough)

On Tuesday, the hon. Member for Winchester moved another amendment, on which I intervened and spoke in anticipation about this subsection and these amendments. I asked whether he was convinced that the subsection that we are now discussing created an irrefutable presumption of service.

I want to be sure that the Minister accepts that simply to assert that a first-class letter containing the document has been sent does not mean that the asylum seeker or his representative cannot, on the production of cogent evidence, demonstrate that that could not have happened. The service should not be irrefutably presumed to have taken place simply because someone says that they posted it by first-class post. A failed asylum seeker should not be prevented from saying, ''Well, as a matter of fact you are wrong, because . . .''

Beverley Hughes (Labour, Stretford and Urmston)

That is correct, but I hope that, in practice, the measures that I have outlined give some assurance to hon. Members on both sides of the Committee that when we can we will serve the documentation personally, particularly where that fits in with reporting, and when we have to send a letter we will send another at the same time to the legal representative. Although, sadly, none of us can guarantee that if a letter is put in the post box it will reach the recipient, I hope that on the balance of proportionality, we are doing what we can in practice to ensure that there is no slippage between posting and receipt, and that people are informed. If someone can show any evidence that they have not received a letter that was posted and that the legal representative also did not receive it, they can present that evidence for consideration.

Tom Harris (Labour, Glasgow Cathcart)

In the light of recent industrial disputes in the postal service, it may be possible that a family seeking asylum might not receive that notification for many days. Can the Minister give an assurance that the Home Secretary will take that into account when notices are sent out?

Beverley Hughes (Labour, Stretford and Urmston)

As I was speaking, that example went through my mind too: it shows that we are thinking along the same lines. Where there is clear evidence that there was disruption in mail services, it will be taken into account. We do not want to catch people out unfairly. I hope that I have assured the Committee that we think the measure is necessary. In applying it, we intend not only to treat people fairly

but to give them every opportunity to avail themselves of the possibility of return without getting to this stage in the process.

Mark Oaten (Liberal Democrat, Winchester)

The Minister has reassured me enormously, particularly on the point about a certificate going to a legal representative. However, everything that she said leads me to think that it is important to have an interview at the earliest possible stage. Can she give some thought as to when she envisages that the interview will take place? Is it after the second or the third letter? If it is after the third, I suggest that it would be better to have the interview at an earlier stage, so that many of the issues that we are discussing can be clarified, As she says, there should be good personal contact early on.

Beverley Hughes (Labour, Stretford and Urmston)

I should like to put some caveats on what I am about to say, because we are still thinking about the detail. I currently envisage that when we receive notification from the tribunal that all appeal rights have been exhausted, the asylum seeker will receive a letter setting that out formally. It will say that they should return home, and will outline all their options. That will be the formal statement of their position. We will advise them that we shall write to them to arrange an interview. They will then receive a second letter, with an appointment for an interview. It is only if they do not turn up and fail to co-operate that they receive a third letter and potential certification. We envisage the interview at an early stage. That is a crucial point that the hon. Gentleman has made: the more drift in the system, the more difficult it becomes. Equally, between each stage, we must give people sufficient notice of an interview. We cannot write to them and say, ''You've got an interview tomorrow.'' We shall be reasonable throughout the process, but we must get the balance right. There should be reasonable notice within a reasonable process, without drift. I hope that, after those assurances, hon. Members will not press their amendments, and I hope that I have answered their questions satisfactorily.

Humfrey Malins (Conservative, Woking)

Like the hon. Member for Winchester, I am reassured by the Minister. It has been a useful debate, because the hon. Member for Glasgow, Cathcart, my hon. and learned Friend the Member for Harborough and the hon. Member for Winchester have all raised points of detail that the Minister has addressed very helpfully. I do not doubt the Government's good faith on the issue at all. I am sure that their objective is to do the job properly, with humanity and efficiency. The Government are clearly aware that there are potential difficulties that they must overcome. I was reassured, as was the hon. Member for Winchester, by the Minister's comment that, in practice, the certificate would be served on the asylum seeker's legal representative. Almost the first thing that a solicitor in a normal civil process would do is to write to the opposition solicitors to say, ''I am authorised to accept service on behalf of my client.'' It is deemed at law to be good when such documentation is served on the solicitor or representative and the

courts. The Minister's reassurance was helpful, and I infer from it that service could be not only on the solicitor if instructed, but on a non-governmental organisation, such as the Immigration Advisory Service, that was on the record as representing.

Beverley Hughes indicated assent.

Humfrey Malins (Conservative, Woking)

I see the Minister nodding, and that is helpful.

This has been a useful and good short debate. I am grateful to the Minister for her comments, and in the spirit of co-operation that increasingly engulfs us as the week draws to a close, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 36, in

clause 7, page 7, line 24, leave out subsection (3).

Subsection (3) provides that an asylum applicant will have no right of appeal when the Secretary of State makes a decision on certification and serves the document. I was intrigued during our last debate when the Minister, in response to a point about postal strikes, effectively said that if a person could prove that he did not receive the document for whatever reason, it would be open to him to make representations. I thought that she might say that it would be open to him to appeal, but she did not use that word. However, it is because things go wrong in life that rights to appeal are important and should be protected.

It is an important principle that any administrative act, particularly one that is to the detriment of the person concerned, should be open to some challenge. I find it difficult to think of any administrative act in life that is not subject to some independent or judicial oversight. However, as I understand it, there will be no judicial oversight on the decisions referred to in subsection (3).

This is a probing amendment. Will the Minister say what has happened hitherto in such cases? There have been previous cases in which support has been withdrawn, and it is stating the obvious to say that they have been subject to a form of challenge. It would be helpful for her to set out not only what has been the exact form of challenge, but how it has been undertaken. How many challenges to such administrative decisions have been made in the past, and to whom have they been made? How many have been successful, and on what grounds? What justification does she have for removing that right of appeal?

We are dealing with a sensitive situation. I do not want to stray too far into any stand part debate, but my point relates to the appeal. Unless I am mistaken, the cessation of support and/or benefit has hitherto operated at the stage in proceedings when removal directions are given. That is a late stage, when the Government are ready to remove. The purpose of clause 7 is to bring the certification forward to a point in the proceedings before removal directions are given. As we shall probably debate on clause stand part, there is a limbo period between the appeal being dismissed and the removal directions being given. That is quite

an important period, because I assume that during that time the Government are deciding whether they can in practice give removal directions.

As we know, in many cases the Government will not choose to give removal directions at all. For example, removals to Zimbabwe have now been suspended for many months. The Government are simply not issuing removals to that country, for obvious reasons. There are other areas of the world to which it is difficult to remove people. The Minister alluded the other day to countries that simply refuse to take back failed asylum seekers, or who make the process very difficult. There are countries where the flights and/or airports are difficult to reach. I hope that my point is becoming clear.

Those are cases in which I imagine the Minister would not in normal circumstances serve removal directions on the person concerned, for reasons that she would regard as right and fair. Now the procedure includes the ability to take away benefits. That could bite in cases where she has not considered whether removal directions should be given or has not reached a conclusion—or, in the case of a Government whose motives were not the highest, and I do not say that of this Government, it could bite against a person to whom removal directions would never be given, for the reasons that I outlined.

We must consider providing some check against the Executive in such cases by way of appeal. I am certain that there are Government Members who will take a view on the matter, and will want to advance some thoughts on the issue. My amendment—and I repeat that it is a probing amendment—is designed to ask the Government whether we are dealing with an administrative act that, as a result of the clause, cannot be challenged anywhere. If so, do the Government think that a happy state of affairs?

Annabelle Ewing (Scottish National Party, Perth)

I agree with what the hon. Gentleman said. I would have thought that the importance of appeal is particularly pertinent here, because in my experience it is difficult to prove a negative. As a lawyer, I am trying to think of how someone could prove that they did not receive a letter, except when there has been a postal strike. The norm when intimating important decisions is to forward the document or letter by recorded delivery, because then there is proof of receipt. I would have thought that a sensible way to proceed in any case. For those reasons, the issue of appeal is important, and I am pleased that this probing amendment has been moved.

Humfrey Malins (Conservative, Woking)

The hon. Lady makes a fair point. She and other Committee members may want to come in on this debate and raise their arguments in their own way, as she has done. I merely point out that we are talking about an administrative act that, as far as I can see, is not subject to any judicial oversight. Many people, both here and outside, might resent that, and many might ask why it is necessary to take that step. Is the history of the matter so difficult, complex and full of abuses that it was felt justified to remove what has hitherto, as I understand it, been an important right,

and one that many would argue should remain in force? I hope that the Committee is open to a debate on the issue of appeal, and that there will be many contributions.

Tom Harris (Labour, Glasgow Cathcart)

I have some questions for my right hon. Friend the Minister, although I may be revealing my ignorance of English, and probably Scots, law. I am sure that the hon. Member for Perth (Annabelle Ewing) will be quick to put me right if I make a mistake. We have to be clear about the reason why this subsection is included. As I understand it, if the appeal was allowed, it would be against the withdrawal of benefits, and nothing to do with the decision of the Home Office on whether to grant refugee status to an asylum seeker. On that basis, theoretically there should be a fairly clear-cut decision: benefit will be withdrawn if a family in that position has not co-operated with the Home Office by not turning up to meetings and ignoring appointments and letters.

Presumably, the hon. Member for Woking has in mind the grounds for appeal and considers it purely a matter of communication, assuming that the family had every intention of co-operating with the authorities and turned up for appointments. In such circumstances, the decision to withdraw benefits at that stage would be unfair. I imagine that that is the basis on which any appeal would be accepted, were his amendment agreed. If we allowed an appeal process under this clause, it would be used by applicants as a way of delaying their inevitable removal from the country. Because of provisions that we will consider later, there is a slimmed down appeals process—especially under clause 10. Under the amendment, many failed asylum seekers would attempt to use clause 7 to delay their removal, rather than using the current system of an almost never-ending appeal process, followed by judicial review.

Annabelle Ewing (Scottish National Party, Perth)

The hon. Gentleman referred to the slimmed down appeals process. Surely, that should be the non-existent appeals process.

Tom Harris (Labour, Glasgow Cathcart)

I will not tempt you into calling me to order, Mr. Taylor, by intruding on that part of the Bill. I am sure that we will have a full discussion when we get there.

Richard Bacon (Conservative, South Norfolk)

Does the hon. Gentleman agree that the main issue is not whether the result of not having an appeal is that somebody is removed, or loses benefit? Does he understand that that is not the principal matter at stake? As my hon. Friend the Member for Woking suggested, the main issue is whether the action of an Administration should not be subject to judicial review. Does he believe that there should be acts committed by an Administration that are not capable of being subject to judicial review?

Tom Harris (Labour, Glasgow Cathcart)

I am glad that the hon. Gentleman raised that point. I was just about to ask the Minister about that. Going back to what I originally said about my complete ignorance of English law, I wanted to ask her to clarify something. In the Bill as it stands, no appeal is provided for if benefit is withdrawn. Does

that include judicial review, as the hon. Gentleman has just said? If no appeal under the withdrawal of benefit is allowed, but judicial review is allowed, I can see that causing more problems than an appeals process, if every case of withdrawal of benefit from a failed asylum seeker family ends up going to court. It would surely be better to have an appeals process. In fact, because I support the spirit of what the Government intend, I would rather that the Bill contained provisions not only to prevent appeals against benefit withdrawals but to prevent judicial review.

I understand what the Government are trying to do and the problems that have led them to the position where we are not allowing an appeal against the withdrawal of benefit. I hope that my right hon. Friend will be able to address that matter. It may be—not for the first time—that I have misinterpreted English law, but it seems that because judicial review is not explicitly mentioned, unless I have misread the provision, it would in certain circumstances be allowed.

Humfrey Malins (Conservative, Woking)

I do not think so. We could be in danger of moving on to clause 10, but one of its provisions relates to the absence of any supervisory jurisdiction by any court over certain decisions, which include a decision in connection with a decision to remove a person. The hon. Gentleman makes a fair point and we will obviously develop these points as the Committee proceeds towards that clause.

Tom Harris (Labour, Glasgow Cathcart)

I am grateful for that intervention. I simply leave the question hanging. It is clear that the right to judicial review is curtailed later in the Bill, but I am not addressing that point. Is it the Government's intention that judicial review as well as all appeals will be prevented by this clause?

Mark Oaten (Liberal Democrat, Winchester)

The hon. Member for Woking raised an important point about a right of appeal on this process. In our debate on the previous amendments on how complex it could be to get the information across to a failed asylum seeker, we heard that the Government are keen to ensure that information is put across properly. We have had a discussion about where there could be shortfalls in that information coming through. It will be clear to all hon. Members that within that process things could go wrong. If there are occasions where things go wrong, there could be genuine reasons and there should be an opportunity for an individual at the end of that process to have a last chance to explain on factual grounds where something has gone wrong. It is a shame that the Government appear to be taking away that right.

Will the Minister help me? I am still not clear whether there is a difference between the proposals set out in subsection (3) to remove the right of appeal for those in the fifth class and those for other classes, or whether it is the Government's intention, by placing this subsection here, that what stands here should also read across to other classes. That is an important question. Are we saying that we will take away the right of appeal against the removal of benefits for all

classes? Are we bringing this group in line with other classes or are we making different rules for families with children, in that they will not have the same rights of appeal for removal of benefit that others such as single individuals would have? It would be helpful if the Minister would clarify that point. If differences are being made here from the other categories, my concerns would be increased.

Finally, if an individual's circumstances changed—say, they had reached the point where the certificate had been issued, and a child became ill and had to go into hospital, or a circumstance changed in the country where it was the Government's intention that they should return—are there other systems in place that would allow them to appeal and change the decision? I hope that the answer will be that other systems would kick in. If not, I would be extremely concerned about taking away the ability to appeal a decision in such circumstances. I hope that the Minister will help clarify those points.

Edward Garnier (Conservative, Harborough)

I share the concerns of the hon. Member for Winchester about the potential distinction between this class and other classes of person dealt with under the Nationality, Immigration and Asylum Act 2002—but there is another potential distinction between the people to whom the measures apply and the ordinary round of people receiving benefit. I ask the question out of ignorance: is there a similarly restrictive regime for the denial of benefit to British citizens? Do they have a right of appeal beyond that allowed to failed asylum seekers?

The points raised by the hon. Member for Glasgow, Cathcart were well made, but he may be getting too tied up over the distinction between an appeal and a judicial review. I hope that I have not misunderstood him and that he will not misunderstand my remarks. I am not interested in the technical difference between appealing and judicially reviewing. I merely want to be assured that when an administrator, a civil servant or somebody in a benefits office—[Interruption.] Does the hon. Gentleman want to intervene?

Neil Gerrard (Labour, Walthamstow)

I was listening to the hon. Gentleman with interest as he advanced the case for what should happen to failed asylum seekers. How did he vote in 1996, when the Conservative Government proposed removing all benefits, not from failed asylum seekers but from people making applications in country and whose applications had not been considered?

Mr. Garnier rose—

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. That is a bit wide of today's debate.

Edward Garnier (Conservative, Harborough)

I entirely agree with you, Mr. Taylor. The hon. Gentleman knows more about the subject than I do, but I suspect—I may be right or wrong—that the Bill for which he criticised me did not remove the right of appeal. This Government probably have another 18 months to run, and he can persuade Ministers to repeal that monstrous piece of legislation

in due course. Government Back Benchers have increasing influence over what the Government do, and current Front Benchers may soon be Back Benchers, or vice versa.

I shall continue reassuring the hon. Member for Glasgow, Cathcart that I am not bothered about the technicalities of the distinction between a judicial review and an appeal. We are not shutting out the right to review a decision made by a civil servant or an administrator. Those decisions are no doubt made on behalf of the Secretary of State, but I can assure you, Mr. Taylor, that the Secretary of State will never come to know about them. There is a story—I do not know whether it is true, but perhaps the Minister can help us—that when one receives a letter from a Minister saying, ''the Minister has seen your correspondence and has made the following decision'', that means that a trolley containing files of correspondence is pushed past the Minister's desk and out the other door. In that case, yes, the Minister has seen the correspondence. However, I am sure that that cannot be true of this Minister, and I can see that she is itching to refute it and say that she looks at every one of my and my constituents' letters.

Beverley Hughes (Labour, Stretford and Urmston)

I do, actually.

Edward Garnier (Conservative, Harborough)

She must have seen some of them, because she signs some. However, I am being diverted from—

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. Could we return to the topic of the debate and move away from the current style of conversation?

Edward Garnier (Conservative, Harborough)

I think that I have made my short point on that subject, and I hope that we will have a longer opportunity to deal with that problem when we examine clause 10. My hon. Friend the Member for Woking was right. Clause 10(7), and especially new section 108A(2)(e) within it, provides fertile ground for a debate, which he may enjoy participating in.

There is something not quite right with a country that allows an unelected person to make a decision that has a fundamental effect on someone's life, without allowing anyone else to review it. Such final decisions are unattractive. We want to ensure that the asylum system properly makes a distinction between those who ought and those who ought not to be here. Those who should not be here should not have recourse to public funds and should be removed. I see that there is a problem that public moneys will be spent while the decision is being made and implemented, but as soon as it is decided that someone should not be here, their speediest removal should be provided for.

The problem under clause 7 arises because a decision made on the asylum seeker's wrongness in being here can take many months to be implemented. Such people then hang around for months in receipt of benefit. I am beginning to waffle, so I shall try to be brief. The problem arises through being incompetent in removing those who have failed the test on asylum, and we should look more at that end, rather than the benefits end, of the telescope. If the Government could

get that right, we would not have to deal with the problems related to the withdrawal of support thrown up by clause 7.

As I said, it is wrong to allow a civil servant to make a decision that is unchallengeable. However, it is equally wrong that a Government should permit a system to continue that allows those who have been denied the right to remain in this country to remain, whether or not they are in receipt of benefits.

Beverley Hughes (Labour, Stretford and Urmston)

I shall start by answering some of the questions raised by the hon. Member for Woking before setting out my intentions.

The hon. Gentleman asked specific questions about the redress for the other people encompassed in schedule 3, which covers similar categories of people to which clause 7 adds a fifth class. There have been only a few judicial reviews—about three or four—in cases concerning people in those groups. Not all related to asylum seekers, as some covered overstayers or people here illegally, but all the reviews were against local authorities, with the Secretary of State as an interested party.

The hon. Gentleman also asked whether the removal of the right of appeal in clause 7 will apply to everybody covered by schedule 3 as well as the new class that we are adding. It will, but that will mean very few people in practice. The main class of people affected will be the one that the clause adds. However, I should make it clear that I have already been considering whether it would not only accommodate the arguments made by hon. Members today but be better in itself to include an appeal stage on the certification for the withdrawal of support only.

Having said that, I want to make it clear that the people affected by the clause will be those who have been rejected after going through the asylum process, with the decision having been upheld on appeal, assuming that the right was exercised. As I have said many times, we want people to depart voluntarily. The principle at the heart of the clause is that when people have gone through a process and the claim has not been accepted, we will not support them indefinitely at taxpayers' expense. In order to withdraw support, the Bill is clear that we must decide whether people have failed, without a reasonable excuse, to take steps to leave the United Kingdom voluntarily, or to place themselves in a position that allows them to leave voluntarily.

We will make clear to families the steps that need to be taken. For example, they must attend an interview when requested and co-operate with attempts to redocument them. We want people to know what they have to do. We want to encourage them to leave voluntarily, and when we have to certify, as a last resort, that should come as no surprise. My hon. Friend the Member for Glasgow, Cathcart, the hon. and learned Member for Harborough and the hon. Member for Woking asked what avenue of redress there is against a decision to certify. Under the Bill, it will be open to a family to challenge certification through judicial review. A remedy already exists under the clause. Initially, we believed that to be both sufficient and an appropriate legal redress.

I have reached the view, however, that there is an argument, in the interests of the appellants and of an efficient process, to allow an appeal to an asylum support adjudicator. That would be the appropriate forum, and might be a better solution. It may be a more appropriate avenue than the judicial review route. Furthermore, we must recognise that, by allowing that opportunity, there may be a greater number of challenges than would be the case if judicial review was the only remedy.

We must try to strike a proper balance between a process with clear milestones that we take people through, so that they know what is going on, and not allowing that process to drift, because our intention is for people to return home. If we are to introduce an appeal stage, I want a little more time to consider in detail the practicalities, and in particular the time taken for an appeal to be resolved. It is important to ensure that there is no scope for the failed asylum seeker to reopen the arguments about the validity of his asylum claim. The appeal must be restricted to the decision to certify on the withdrawal of support.

Mark Oaten (Liberal Democrat, Winchester)

This is a very interesting debate. I understand that the Minister wants the appeal to be based on technical grounds. I agree with that, but what about changed circumstances, such as an ill child? Can she reassure me that there would be another route of appeal if circumstances changed after the certificate had been issued?

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Gentleman gave two scenarios when he spoke earlier about the circumstances that he thought could arise that might warrant another look at a case. As for a child going into hospital, we must consider that in terms of an appeal against withdrawal of support. However, the changed circumstance in the country is germane not to withdrawal of support, but to the asylum claim. The human rights avenue would exist for that person to try to open up his asylum claim again on the basis of the changed circumstance argument. There are different scenarios in relation to withdrawal of support.

I want to make it clear that, should we consider a right of appeal to the asylum support adjudicator appropriate, and should an appeal be lodged, that could not mean that the compulsory removal of a family designated for such removal would be delayed. That is because the appeal would be against certification of withdrawal of support. It does not relate to the validity of the judgment already made about the asylum claim.

If an enforced removal is open to us, the lodging of an appeal to the adjudicator about certification cannot and must not delay that, because it is an entirely separate issue. I stress that, because hon. Members must be clear about it. If we go down this route, there may be cases in which someone lodges an appeal against certification but we continue with an enforced removal. I hope that hon. Members feel that we have made some progress.

Richard Bacon (Conservative, South Norfolk)

The Minister says that there would not be scope to reopen the arguments about the validity of the asylum claim. However, if the way in which the decision was reached about its validity was in question, because of, for example, an alleged breach of the rules of natural justice, would an appeal be allowed to take account of that breach? I am thinking of a constituent of mine, whose case involved not asylum but disability living allowance. The case went before a tribunal, and it was plain that the tribunal reached a decision that it should not have, because my constituent was denied the right to a fair hearing. The tribunal's decision was later quashed. When—

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. This is a rather long intervention.

Beverley Hughes (Labour, Stretford and Urmston)

I repeat the point that I made on the scenario suggested by the hon. Member for Winchester of a change of circumstance in the country to which people are to be returned. Clearly, quite outside what we are talking about, there is provision under general human rights legislation for a legal representative or asylum claimant to try to persuade a court, usually through the judicial review process, that there are new circumstances or that the consequences of the failure to grant asylum will contravene an article of human rights legislation.

Richard Bacon (Conservative, South Norfolk)

Or common law.

Beverley Hughes (Labour, Stretford and Urmston)

Perhaps, but usually these cases are brought on human rights grounds. If that process took place and a court accepted those arguments and allowed a hearing, clearly that would have implications. We would then be at a stage at which appeal rights, having once been exhausted, were not necessarily exhausted, because another judicial process was going on that was germane to the claim itself and the removability of the people involved.

Andrew Turner (Conservative, Isle of Wight)

I understand that the more the Minister explains, the more questions hon. Members tend to think up, but is it the case, first, that a Minister can de-certificate off his own bat under the clause? Secondly, if an appeal that was lodged against certification would not slow down the removal process, what is the argument against having an appeal against certification?

Beverley Hughes (Labour, Stretford and Urmston)

To answer the first question, the decision is, as a result of the way in which the clause is written, an Executive decision, so if a change of circumstance changed the basis on which the certificate was given, as in the examples outlined by hon. Members, it would be possible to reconsider the certification. However, it would have to be a complete change in circumstances. On the second question, I had already concluded, for two reasons—not least a smooth administrative process—that it might be preferable to have an appeal mechanism. However, there would be constraints on that appeal, in that it would have to relate only to certification of withdrawal of support. All other things being equal and remaining

the same, the adjudicator would not allow a reopening of the asylum claim, and enforced removal could not be prevented, because of the claimant's removability.

We must be able to proceed to an enforced removal, notwithstanding the appeal against certification, if that course is open to us. I hope that hon. Members will allow me to take this away and continue the work that we have been doing. I want to come back to the Committee with something that will enable an appeal to the adjudicator. I do not want the process to be elongated too much, or to allow further drift—to which I referred in my earlier remarks about 14 days, and our general discussion about time periods.

With those remarks, I hope that the hon. Gentleman will withdraw the amendment, and allow me to come back on Report with something that will accommodate my aspirations to build a fair and robust process that allows us to remove more families, but also meets the Committee's objectives.

Humfrey Malins (Conservative, Woking)

We have raised with the Government what we have described many times as the failing in their removal system. I agree with the Minister's last remarks, that any right of appeal introduced under this clause must be a separate matter from removal directions. I speak for my colleagues in saying that we wholeheartedly support her when she outlines the general principle that delaying tactics against lawful removals are not to be admired in any way whatever.

I have found this debate helpful. The Minister has listened very carefully to what has been said. She may have formed a view before today that she would consider an appeal mechanism on the issue of benefit that does not interfere with other due processes. Perhaps she will come back to us on Report. I speak for Conservative Members and, I hope, for the hon. Member for Winchester and others in welcoming what the Minister said today. It has been a most useful debate.

I conclude by thanking my hon. and learned Friend the Member for Harborough for his observation about ministerial correspondence and how Ministers used to say, ''I have seen your correspondence.'' I hope, Mr. Taylor, that you will allow me to tell a brief, true story, because it is such a good one. I shall cut all my speeches down in future—I really will. The Minister was depressed that all he was saying was, ''I have seen your correspondence,'' so he decided to treat his letter-writers better. Every morning the trolley was wheeled through his office, and he said, ''I have seen that correspondence, and I have noted it with some interest.'' That was reported to every other letter-writer, who noted it with interest. I said that I was going to be brief, and I was.

I thank the Minister, who has helped us today, and I think she will come back on Report with something that will fit her purposes, and I am sure that it will fit ours. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment No. 91, in

clause 7, page 7, line 33, at end add—

'(5) The Secretary of State shall publish regular statistics on the operation of this section, with specific reference to its impact on children.'.

The Minister has been so incredibly helpful this morning that I suspect that I shall probably be pushing my luck in attempting to get much more support from her. The intention behind this probing amendment is to seek some reassurance that the system that is being introduced will not have the impact that many of us fear. The idea is to have a system to monitor the impact of what the Government are suggesting.

This morning and on Tuesday, the Minister went to great lengths to assure us that everything would be done to protect the rights of children. On Second Reading, she said that she did not believe that what the Government were doing would lead to hardship, and that the intention was for the clause to act as a deterrent. She found it hard to envisage a situation in which people's children would have to go into care, because the deterrent would be enough to prevent it.

That may or may not be the case, but the Government have used the same argument in the past. For example, on section 55 of the Nationality, Immigration and Asylum Act 2002, the Government argued that threatening to remove benefit from late claimants would speed up the process, act as a deterrent and prevent late claims. The Government envisaged that it would be unlikely that people would lose their benefits. However, those hopes have not materialised, and about 7,000 people have had their benefits removed under those provisions. There have been judicial reviews of that process, and the Home Secretary announced changes to it on Second Reading.

The point of the amendment is to say that it would be sensible to have a system of review, so that we do not get into the same difficulties with the removals of benefits proposed in the clause as we have done under section 55. We suggest publishing regular statistics on how the system is operating. If, as the Minister says, parents regard the legislation as a deterrent and do not reach the point where they lose benefits, the quarterly results will show a nil figure. However, if, as we fear, human nature does not operate as we in the Committee think it should, we will be able to see what the problem is from the statistics. I hope that she will consider publishing the figures.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

The point of the clause is to withdraw benefit. However, benefit might be withdrawn without the children being threatened with removal, because the family has access to other income that has not been declared and can therefore provide adequate care. The statistics would not be able to reveal such circumstances, so people might draw conclusions that would lead to false assumptions.

Mark Oaten (Liberal Democrat, Winchester)

The hon. Gentleman makes a valid point about the misinterpretation of statistics, but I would rather at least have some statistics to misinterpret in the first place. It would be helpful to have two sets of figures. The first would show how many individuals had had their benefit removed as a result of the clause; the second would contain information from local authority associations on how many children from

that category had been taken into care. We could learn something useful from that information, so I hope that the Minister will give us some comfort and explain what system will be introduced to monitor the impact of the clause.

Annabelle Ewing (Scottish National Party, Perth)

As I stated at the beginning of the debate, I believe that the clause is beyond the pale because of its possible negative impact on children. If the clause remains part of the Bill—I sincerely hope it will not—the Minister should at the very least consider a reporting and monitoring requirement along those lines. I look forward to hearing her views on the probing amendment. If she is in favour of some ongoing monitoring of the clause, I shall be particularly interested to know what arrangements will be made to monitor the situation in Scotland.

We have already had a brief discussion about the different legislation that applies in Scotland with respect to social work issues. I wait to hear from the Minister the position regarding the Social Work (Scotland) Act 1968. I am sure that I will hear about that in due course. It would be important in any monitoring requirement to take into account the differing legislation in Scotland and to look in particular at what is to happen to children in the more extreme cases. How long will they be kept in care? If their parents ultimately go back to their country, what is to happen to them? Will they stay in care until they reach the age of majority? These issues are extremely important. I therefore support the basic thrust of the amendment. I look forward to hearing the Minister's comments.

Beverley Hughes (Labour, Stretford and Urmston)

Clearly, monitoring the implementation of the clause is extremely important. We need to be clear how it is working and that it is being applied consistently and fairly. I have said repeatedly that we do not want people to become destitute; we want those with no right to remain to leave voluntarily. We need to understand what is happening on the ground and assess how the clause is working, so we will collect information and evaluate its effect. I am quite sure that the issue will also feature in my regular discussions with both the NGOs and the Local Government Association. As I told the Committee, that process has already started.

We do not expect many, if any, children to end up in the care of local authorities, whether in England, Wales or Scotland. We want to monitor the numbers and to engage with local authorities on how exactly they will discharge their duties in those cases where, unfortunately, the parents have chosen not to leave the UK and that choice has resulted in some detriment to the children, but I do not think it sensible to introduce a statutory requirement for statistics to be published. I would rather assure hon. Members that the mechanisms already exist in legislation for that information to be provided to us from local authorities and we will produce those figures in our quarterly statistics on asylum.

It is important to note the contribution of my hon. Friend the Member for Cardiff, Central (Mr. Jones). We would not necessarily be talking about statistics on all those cases in which support was certified as being withdrawn, but on those cases, if there were any, in which a local authority had intervened. Hon. Members may wish to know that it is already an obligation on local authorities to inform the Secretary of State if a person has approached them for support.

I hope that hon. Members will be reassured that we intend to monitor the situation carefully. Certainly, in so far as there is an impact on the local authorities in terms of intervening in certain families as a consequence of parents' decisions, those authorities will be obliged to provide us with that information. The Government have agreed to fund the local authority costs in those circumstances, so the authorities will clearly come to us with the information, which we will produce with our normal quarterly returns.

I hope that the hon. Gentleman is assured that there is no need for the amendment, as the mechanisms already exist, and I have assured him that the information that we collect through those mechanisms will be published.

Mark Oaten (Liberal Democrat, Winchester)

The Minister has been very helpful. I understand that the subject of the removal of benefits is to be added into the quarterly statistics that the Government already publish. However, one matter was not entirely clear. I assume that different organisations, such as local authority associations, would collect any data on children going into care. I suspect that it would be quite hard to transfer that information to the quarterly statistics, because of the involvement of another organisation. Will she give a commitment that the information on children in care will be put in the public domain in some form, albeit that it might not be via her Department?

Beverley Hughes (Labour, Stretford and Urmston)

As I explained, local authorities are now required to notify us should people in such categories approach them for support. They have to give us that information. If such rare circumstances arise, they will apply to us for the payment of costs. We will therefore have that information and those notifications; we will be prepared to produce the statistics on that.

Mark Oaten (Liberal Democrat, Winchester)

I am grateful to the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Annabelle Ewing (Scottish National Party, Perth)

I am against the clause, although I am unsure of the procedure for opposing it. I have made it clear why I do not believe that the clause should stand part of the Bill, and I do not want to detain the Committee unduly.

Humfrey Malins (Conservative, Woking)

I heard what the hon. Lady said, and no doubt when the Question is put she will vote accordingly. My remarks will be brief, as I have found it a helpful debate, and I thank the Minister for that.

I wholeheartedly agree with the proposition that people who should not be here and who have exhausted the legal process should not be entitled to support from the state, as do all Conservative Members.

The debate has been useful, as we have been able to discuss different aspects of the clause. We discussed the timing and the service of the notice, the matter of children, statistics, hardship cases and difficult areas of judgment. We also had a fruitful discussion on the issue of appeals. I speak for my hon. Friends when I say how grateful we are to the Minister for her observations on the subject of appeals, and we look forward to hearing what she has to say on Report. Committee members have been able to raise their concerns, and by and large she has dealt with them well and courteously.

The debate has made us wiser about the contents of the clause. That is important, because decisions will be made, principally by officials, that will have a serious impact on people's lives. We would all agree that everyone under our jurisdiction should have the same fair treatment so far as the courts and the Government are concerned, whether or not they are our own nationals. With that, I conclude my remarks on clause stand part, and I repeat my gratitude to the Minister for the helpful way in which she responded to many of the concerns expressed.

Mark Oaten (Liberal Democrat, Winchester)

This has been a good, positive debate, and there is much to welcome in the approach taken by the Minister. It is particularly important to have a greater understanding of how the process of notification will work. The discussions that are taking place with the local authorities are welcome , and as we draw to a conclusion during the coming weeks I hope that the Minister will be in a position to give us more information on how those discussions with local authorities are going.

It would be helpful if, during the proceedings, we have as early an indication as possible about the time scale involved in the letter and interview process, but I welcome the Minister's assurances that the interview will take place at an early stage. That is important, and I am pleased that she has picked up on suggestions concerning copying in the certificate to legal representatives. That gives me great reassurance. Although I do not necessarily agree with the Government's approach, they clearly intend to implement it with care, thought and some element of compassion.

I am unhappy that the Minister has confirmed this morning that it is the Government's intention not only to take away benefit from parents but to take it away specifically from children. The Government could have argued that the taking away of benefit from parents was the deterrent, while retaining benefit for the children would have been the compassionate part

of the policy, but the Minister clearly believes that benefit has to be taken away from the whole family. I am unhappy about that.

I strongly welcome the suggested draft changes to the appeal procedure. I was unhappy that there would be a different appeal procedure for the class in question than for others. Perhaps the Minister would clarify how she would examine the appeal system in relation to the narrow issue of the mechanics by which the certificate was issued. I wonder whether there are any lessons that can be learned from the changes in the operation of the system of removing benefit in other classes, and whether she envisages making changes for those classes as well as the fifth class.

I entirely understand, and agree with, the Minister's point that the appeal on the issue of the certificate should not be used as a delaying tactic, and should be a different issue from the enforced removal. I favour forced removal as the best route, so I am entirely agree that the issue should be separate. I want there to be a right to appeal on the mechanics of the certificate, but accept the point that the removal process should continue, and that the one should not interfere with the other. I hope that she will come back to me on that at some point.

I gave two examples of where a difficulty could lie. One concerned an appeal because of circumstances changing in the country of return. The Minister satisfied me on that, and said that there would still be a route of appeal through other mechanisms. On the question of the child in hospital, the Minister needs to demonstrate under which procedure there would be an element of appeal.

That said, we have long felt that the new provisions are not the most sensible route to go down. However hard, we feel that the knock on the door at four o'clock, which the Minister said was horrible and nasty, is still a better route than the any of the ones the Government are now exploring. On that basis, we have a major problem with the clause. I do not know how the Conservatives will vote on it. I suspect that they will vote against it, because their leader made such an enormous fuss on the issue. [Interruption.] I am sure that he has asked them to vote against the clause. It will be interesting to see how they vote, but we shall certainly vote against the clause.

Neil Gerrard (Labour, Walthamstow)

I accept and understand a lot of what the Minister has said about the clause. The intention is that we shall rarely get to the point where support is withdrawn from families with children. Information will be made available at an early stage of the process to families who might be affected. I am glad that she heard what was said to her recently about providing information in a variety of languages early in the process. It is important that people clearly understand what might happen to them, and that there is an interview at an early stage. I thought that what she said this morning about the possibility of an appeals process was interesting, although such an appeal would be extremely limited in scope. I understand why she said that that would not reopen the asylum process itself. I suspect that the appeal will be entirely to do with process. Even so, it is important that there should

be safeguards against the processes going wrong—people not having been sent letters, not receiving letters and so on—so that is welcome.

It has always been my view that the power to withdraw support would end up being used sparingly. Under the 2002 Act, there is the power to withdraw support if removal directions are not complied with. I have not seen any evidence of how much that power is used. I have tabled a parliamentary question on the matter and I am waiting for the answer. My suspicion is that the power has been used sparingly. I cannot recall a case of someone who has had support withdrawn because they have not complied with removal directions.

There is therefore a question about that power. Is it not working, and if not why not? Is it used, and if not why not? If the power is not used or not working, that ought to be justification for putting such a power into operation earlier in the process. That is what the clause does. I hope that we see evidence about the existing powers and the problems with using them before we have to make the final decisions on the Bill. Not complying with directions seems a clear-cut point, with absolute evidence.

I understand that the Home Office has difficulties when people whose asylum claims have failed do not comply with removal directions. As has been mentioned, frequently nothing happens to enforce such directions. There is a complete dislocation between Home Office decision making and its enforcement. That applies not only to families with children, who are affected by the clause, but more widely. That is part of the problem: if nothing happens when a decision is made—an asylum claim has been refused, an appeal lost and the end of the line reached—people will think that nothing will happen. It is then highly unlikely that they will return home voluntarily or co-operate with removal directions.

I suspect that there are many people who know someone else who has been in their position—of losing their claim and their appeals—and who know that the norm is that nothing happens. If we want to address the problems with process, that has to be dealt with.

Some of us are seen as defenders of the rights of asylum seekers and critical of the Home Office, but we have to be prepared, as the hon. Member for Winchester was, to answer the question about what we would do. It has to be clear that something happens at the end of the process, particularly if one is satisfied that an efficient and fair decision has been made. The decision must be enforced. I have no problem whatever in accepting that. Enforced removal is an unpleasant and nasty business—the Minister spelled out on Tuesday just what it could imply—but we must face and accept the fact that nasty things may occur. The question is whether enforced removal is worse than what is being proposed.

The view of the United Nations High Commissioner for Refugees on removal is that, if people have to be returned, it should be done in as humane a manner as

possible, and specifically with the best interests of the children as the primary consideration, and that returns are likely to be durable and sustainable if they follow genuinely voluntary decisions that occur under safe conditions, especially if there has been some material support in the country of origin.

I had the experience some years ago of visiting families in Pristina who had returned voluntarily after being accommodated in Leeds as part of the humanitarian evacuation programme from Kosovo. At the end of the programme, they had been given counselling and some support, and it was possible for a member of the family to go back to see what was actually happening in their country. That was done in some cases in Kosovo and in Afghanistan, and it still happens on some occasions. We ought to pay more attention to beefing up the process of helping people to return and getting them to understand how they might be helped to do that.

Various children's organisations have concerns about the consequences of clause 7; for example, whether children will be abandoned. I suspect that people who reach a point where they are faced with the choice of their children going into care in the UK may well take it if they believe that it would give their child a better chance in the future. Some evidence from the unaccompanied minors who come into the country, particularly from certain parts of the world such as the former Yugoslavia, supports that argument. Children are coming from Kosovo, Albania, Bosnia and Serbia because their parents believe that they will have a better future in the UK than in their country of origin. If we know that that is happening, we should not be surprised if people who are faced with their child being taken into care at the end of the process feel that that might be the best thing for them. That will happen in some cases.

It is also likely that some people will simply disappear, and that some families will end up on the street. As I said, I fully accept that the Minister's intention is to use the power sparingly. I believe that, because of the evidence of what has happened with the existing power in the 2002 Act. The fundamental question is what sort of system we want to operate. Should we be aiming for systems whereby decisions are made fairly and efficiently, and are then enforced—whether they are positive or negative—or systems that rely on deterrence? That is what we are getting into: we are creating a power that could have significant effects on the family and the children, and using that as a deterrent.

I listened to the Minister's comments. She has said some positive things about how that power is intended to operate, and in particular about what she will examine before Report, such as safeguards and appeal rights. When we get to Report, I will examine the clause carefully and assess whether it has changed into a form that can be supported. That is something that I will still have to be convinced about at that stage.

Edward Garnier (Conservative, Harborough)

I listened with great care and attention to the hon. Gentleman's remarks, and I largely agree with him in the detail of what he said, and the general thrust of it.

Having listened to this part of the debate, I have reached the conclusion that the Government have moved some distance. However, I do not want them to become complacent; I want them kept under the cosh. The threat of a vote against the Government from one Conservative Back Bencher on this Committee will probably not terrify the Home Secretary. He has been rude enough about me in public, and I dare say that he is even ruder about me in private. I do not think that he is too bothered about what I think. Indeed, on one occasion on the Floor of the House he said that he did not ''give a toss'' about what I said. That seemed to me to demonstrate the level of thinking that he occasionally brings to such matters.

That said, I think that there are two ways of trying to persuade even this Government. One way is to stand on their lawn and chuck bricks through their front windows, and to enjoy the sound of the tinkling glass and the consternation of those inside. The other is to try to get inside the building to have a civilised discussion with them about how to make progress.

On some issues—I suspect that we will come to those later—it may be that only the demolition of the building will do the trick. However, on others—what I would term the ''clause 7 issues''—it is still open to me to remain on the lawn and to shout through the window, ''Can I come in?''

John Heppell (Labour, Nottingham East)

No.

Edward Garnier (Conservative, Harborough)

If the Government Whip wants me to vote against him, he is going the right way about it. If he wants me to suspend my judgment for the moment, I will hold my fire: I am prepared to do that while the Government listen carefully to the representations made not only in Committee but between now and Report. I see that my rocket Friend wants to talk.

Andrew Turner (Conservative, Isle of Wight)

The fire and the rocket fit well together, do they not? I wondered whether my hon. and learned Friend might care to speculate on who had been shouting from inside the building. We have heard the Minister being very reasonable today, but I have speculated in the past that perhaps it was No. 10 that spread the rumours that every child was going to be taken into care. Does he concur that it was No. 10, or does he have another view as to who has been shouting from inside the building and got that message over, which the Minister assures us is so misunderstood?

Edward Garnier (Conservative, Harborough)

The Prime Minister is in enough trouble without my adding to his problems by speculating about what he thinks, if he thinks, what he said, and when he said it. I will leave that to others. Despite the tempting siren voices of the Liberal Democrats on this Committee, I shall not vote against the Government on this occasion—although I shall certainly not vote for them. I shall behave like a true Liberal and wait to see what happens.

Tom Harris (Labour, Glasgow Cathcart)

I am disappointed that the hon. Member for Perth, who tabled amendment No. 75—which was not selected today—was not able to speak to it. I am sure that her thoughts would have been illuminating. Her comments at the beginning of the

debate opposing the clause stand part were brief, and it would have been useful to have that contribution from the Scottish National party.

Annabelle Ewing (Scottish National Party, Perth)

My views on clause 7, and the reasons why I hold them, are clear to every member of this Committee. If the hon. Gentleman does not understand those views, that is a matter for him. I recall that he was absent at the beginning of the debate on clause 7, and that might partly explain his lack of understanding of my position.

Tom Harris (Labour, Glasgow Cathcart)

There has indeed been a lack of understanding. I fully understand the view that the hon. Lady and her party take. I am under no illusions and know exactly what the SNP's position is: to say whatever it thinks the public want to hear. That is a perfectly acceptable position for an opportunistic party. When it comes to opposing clause 7, there is her personal view, expressed many times before—she has been consistent—that asylum and immigration policy should be devolved to the Scottish Parliament. You have heard so many funny stories this morning, Mr. Taylor, that I will not pursue that one. The idea of devolving asylum and immigration is bizarre. It—

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. There is nothing in the clause that relates to devolution. Will the hon. Gentleman return to the stand part debate?

Tom Harris (Labour, Glasgow Cathcart)

I accept your strictures, Mr. Taylor.

One of the objections that the SNP has—[Interruption.] I am not talking about devolution; the hon. Member for Perth did speak against clause stand part.

Annabelle Ewing (Scottish National Party, Perth)

The hon. Gentleman is very defensive about the SNP.

Tom Harris (Labour, Glasgow Cathcart)

We must consider the title of the clause, which refers to ''Failed asylum seekers''. There is another name for failed asylum seekers: illegal immigrants. Let us consider the technical definition. If someone comes into this country as an asylum seeker, makes a claim, and that claim is rejected, they are in the country illegally. Presumably, the hon. Lady believes, as she has said before, that any illegal immigrant in this country must be able to claim benefits in perpetuity, regardless of circumstances and the amount of co-operation that the family gives to the authorities. Since she has not intervened, we can assume that that is the case.

Annabelle Ewing (Scottish National Party, Perth)

I am interested in the thrust of the hon. Gentleman's comments. I thought that we were supposed to be talking about clause 7. Whether the diatribe against the Scottish National party in the context of clause 7 is in order is a matter for the Chair.

The key issue in relation to clause 7, as I have stated on many occasions in this debate, is that, ultimately, in some cases—the hon. Member for Walthamstow (Mr. Gerrard) discussed this extremely well—it will mean that children will be taken into care. The children, who

are innocent, will be punished for the actions of their parents. Does the hon. Member for Glasgow, Cathcart support that position?

Tom Harris (Labour, Glasgow Cathcart)

The hon. Lady knows that, despite the hysteria of the newspapers and the Leader of the Opposition, there is no provision for taking the children of asylum seekers—sorry, illegal immigrants—into care. That is a red herring, and she knows it. She accused me earlier of being defensive about the SNP. My comments about the SNP are not based on defensiveness. I just have a taste for shooting fish in barrel-shaped objects.

I expect that the hon. Member for Woking will lead his party colleagues in supporting the Government on clause stand part, on the basis that the reservations that his leader had about the Bill when he first raised the matter in the debate on the Queen's Speech were based entirely on newspaper reports, which suggested that the Bill would contain provisions for taking children into care.

Humfrey Malins (Conservative, Woking)

The sensible reservations that the leader of my party had were in response to briefings that were coming out of Downing street and other parts of the Government machine to the effect that children would be used as a weapon. He rightly took great exception to that. I am grateful to the hon. Gentleman for his guidance on which way we should vote. We have expressed our reservations, but I wanted to put the record straight on that point. I know that the matter is not referred to in the Bill.

Tom Harris (Labour, Glasgow Cathcart)

I assume from that that the hon. Gentleman will be voting against the clause. I am happy to wait and see. I hope that the vote takes place this morning, because I must apologise for my absence this afternoon. If—[Interruption.]

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. Mr. Harris must be heard.

Tom Harris (Labour, Glasgow Cathcart)

Thank-you, Mr. Taylor.

The hon. Member for Perth raised an objection to the idea that the actions of parents should have consequences. The point of opposing clause 7, which has caused a great deal of debate in the press, is that no matter how parents behave, it should have no consequences on the children. I find that absolutely objectionable. I am a parent and know that I have certain responsibilities to look after my child—and, in a few months, children. I do not see why we should step back from expecting the same standards of everyone in this country, regardless of their position. We are talking about people who have claimed asylum but have been told that their asylum claim is not justified and that there is no legal reason for them to remain in the country, yet the position of the hon. Member for Perth is that no consequence should derive from that irresponsible behaviour.

The Government are saying to such families, ''We will make it easy for you to be removed from the country. We will even supply money to help you to relocate back to your own country. We have looked at

your asylum claim. We don't believe that it is valid, but we will arrange for you to be taken home.'' The family says, ''No, we refuse to co-operate, even though our asylum claim is not founded. We demand that the benefits that we have been claiming be continued in perpetuity.'' That is not a reasonable position, and because it is not reasonable, I am not at all surprised that the hon. Lady and her party support it.

Richard Bacon (Conservative, South Norfolk)

I find this debate illuminating. A friend of mine in the Scottish National party said to me some time ago that the relationship between the Labour party and the SNP in Scotland was similar to that between the two major parties in England and the Liberal Democrats. I had not really understood what he meant until this morning. There was some illuminating bitching on both sides. I feel that I have had quite a political education.

Annabelle Ewing (Scottish National Party, Perth)

The hon. Gentleman will be aware that the Labour and Conservative parties have a very cosy relationship in my constituency, where they sit happily in coalition on the local council.

Richard Bacon (Conservative, South Norfolk)

I was not aware of that.

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. Could we return to the stand part debate?

Richard Bacon (Conservative, South Norfolk)

Thank you, Mr. Taylor. I shall observe your strictures and make no further mention of the Scottish National party, and in particular, no mention of the hon. Member for Moray (Angus Robertson) who invited me to his constituency where 50 per cent. of all Scotch whisky is produced. I will not digress further but return to clause 7.

We had a number of interesting invitations from the hon. Member for Glasgow, Cathcart and the hon. Member for Winchester about how Conservative Members should vote on the clause. I have not served on that many Standing Committees, but my understanding of voting for a clause to stand part is that one wants a clause to be part of the Bill as it stands.

I listened with great interest to what the Minister said and thought that she made constructive comments. If legislation could generally be discussed in the civilised and reasonable tone that she used today, we would do a lot better. One of the depressing things that I read over the Christmas break about the way in which Ministers often react to Bills in Standing Committees is that they want their Bill and nothing but their Bill. It does not sound to me that the Minister is doing that at all—quite the contrary.

Subsection (3) says:

''No appeal may be brought under section 103 of the Immigration and Asylum Act 1999...(asylum support appeal) against a decision —

(a) that by virtue of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 a person is not qualified to receive support, or

(b) on the grounds of the application of a provision of that Schedule, to stop providing support to a person.''

The Minister said that she is thinking of changing that position. That is interesting. It requires reflection by all sides. I think that I would be reflecting the view of all of my hon. Friends if I said that—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half past Two o'clock.

Taylor, David (

Chairman

Bacon, Mr.

Blizzard, Mr.

Ewing, Annabelle

Gardiner, Mr.

Garnier, Mr.

Gerrard, Mr.

Harris, Mr. Tom

Heath, Mr.

Heppell, Mr.

Hughes, Beverley

Jones, Mr. Jon Owen

Lammy, Mr.

Malins, Mr.

Oaten, Mr.

Prosser, Mr.

Turner, Mr. Andrew

Watkinson, Angela

Williams, Mrs. Betty

Standing Committee B

Clause 7 - Failed asylum seekers: withdrawal of support

Beverley Hughes (Labour, Stretford and Urmston)

We have had a useful debate on the clause and have covered a lot of ground and important detail on the implementation of the measure. I want to say at the outset that this is difficult territory for us all. We face the competing imperatives of wanting a fair system that treats all applicants in the same way and having to attend to the possible consequences for the families affected by the measure. I appreciate the spirit in which hon. Members have tried with me to strike the best possible balance between those competing imperatives.

As hon. Members will know, the current position is that failed asylum seekers with dependent children receive asylum support, both cash and accommodation, until they leave the United Kingdom, or fail to comply with a removal direction. In parenthesis, I should respond to my hon. Friend the Member for Walthamstow (Mr. Gerrard). He is right that a power to remove support at that stage already exists. It has not been used, and one reason for that is the difficulty relating to families destroying their documents. Without their assistance in the process of redocumentation, it has been difficult to use the power. Part of our intention with clause 7 is to encourage people not only to return but to help us to redocument them when they are in that position.

Under the clause, if the Secretary of State certifies that such people have failed without reasonable excuse to take steps to leave the United Kingdom voluntarily or to place themselves in a position in which they can do so—for example, by helping us to obtain a travel document on their behalf—asylum support for the family will cease.

In deliberations leading up to this Committee, the proposal was scrutinised by the Select Committee on Home Affairs. It is interesting that the members of that Committee accepted the principle underlying the clause that it is absurd and unreasonable to continue to support failed asylum-seeking families indefinitely. The present removal directions system is both resource intensive and, necessarily for that reason, slow in effecting the increase in the number of departures that

we want to achieve and that members on both sides of the Committee, notwithstanding how they vote today, have said is reasonable for the Government to pursue.

It is constructive that all members of the Committee have accepted that the objective is reasonable and that it must be pursued. Not to pursue it would undermine a fair system and allow those who want to avoid a return home the possibility of doing so, which would be unfair to those who return voluntarily. It is also constructive that all members but one accept that our intention is not to render families destitute or to take children into care and that the Bill says nothing about doing that.

At this point, I must put on record my concern, which was outlined by my hon. Friend the Member for Glasgow, Cathcart (Mr. Harris), about the information put out by the hon. Member for Perth (Annabelle Ewing) and her colleagues in the Scottish National party. The party website carries two claims, both of which are absolutely wrong. The first is:

''David Blunkett plans to punish refugees seeking asylum by taking their children away from them.''

It is wrong to claim that we intend to punish asylum seekers by taking their children into care, and every Committee member apart from the hon. Member for Perth understands how such children could go into care only in the event of a deliberate choice by their parents not to return home or to help us to return them.

''Scots' law won't let that happen. His writ will not run north of the border.''

It is wrong to say that powers and obligations for children, whatever their circumstances and however those circumstances arise, are different in Scotland from those in England and Wales. The Children (Scotland) Act 1995 gives authorities the same powers and obligations in the event of children being in difficulties, as the Children Act 1989 gives to authorities in England and Wales.

Annabelle Ewing (Scottish National Party, Perth)

In the first few minutes of the Minister's statement, she has already attacked the SNP. That is a feature of new Labour, especially Scottish MPs, who I assume must be feeling defensive about their position. It is instructive that she did not exclude the possibility of a child being taken into care as a result of the clause. That is the issue that we have been debating, and she.

The Minister will also recall that I raised the question of the interaction between the Social Work (Scotland) Act 1968 and clause 7. I had already raised that matter in December with the Advocate-General for Scotland. The Minister promised to examine that and to reply to me but I have not yet received a response.

Beverley Hughes (Labour, Stretford and Urmston)

Let me make it clear that I do not intend to criticise the SNP. I want merely to put on record an absolute refutation and rebuttal of the claim published on the SNP website that we intend to punish people by taking children into care. Every other member of the Committee fully understands that there are no powers in the Bill to take children into care. The repercussions felt by children of any implementation

of the measures of the Bill will be as a direct consequence of the parents' failure to make the choices available to them. In every situation, the parents will have the possibility of accepting the offer of an assisted return home together as a family unit. Returning home is an available remedy for every family to whom the measure might apply.

Several hon. Members rose—

Beverley Hughes (Labour, Stretford and Urmston)

I give way first to the hon. Member for Winchester (Mr. Oaten).

Mark Oaten (Liberal Democrat, Winchester)

I want to be responsible and to say the right things on websites. I would be irresponsible if I said that the Home Secretary will take children into care. However, would I be irresponsible in saying that a consequence of the measures is that, if parents ignore them, children could be taken into care? Would I be acting responsibly in publishing that on a website?

Beverley Hughes (Labour, Stretford and Urmston)

That would be misleading because the same thing could be said of the Children Act, or the Children (Scotland) Act. If parents behave in a certain way and ignore their parental obligations, a consequence of the Government's child protection legislation could be to take children into care. The hon. Gentleman's statement removes from the exposition the role and responsibilities that parents have. It is incomplete and therefore misleading.

Andrew Turner (Conservative, Isle of Wight)

I am grateful to the Minister for allowing the hon. Member for Winchester to intervene before I did. He illustrated exactly what the hon. Member for Perth was demonstrating under her breath, which is that there has been a tendency to blame the Government for decisions taken by parents. I accept that the legislation allows a certain consequence, but that consequence is not that children be taken into care but that parents have less money than expected. That is entirely welcome in the eyes of most of my constituents, if those parents should not be in the country.

Beverley Hughes (Labour, Stretford and Urmston)

I do not want to fall into the trap of expressing pejorative views about the motives of parents or others who I do not know. I take the neutral and very reasonable line that, when people come to the end of the process and have had every opportunity in the process, it is entirely unreasonable, when there is a remedy open to parents, for support to continue indefinitely in the face of lack of co-operation in respect of returning home. I make no other judgment about people and their motives or intentions. I simply say that the current practice is unreasonable, we must act to end it and that is what the clause is about.

The hon. Member for Winchester and my hon. Friend the Member for Walthamstow mentioned enforced removals, which is an important point. I do not necessarily share the hon. Gentleman's view that enforced removals are okay or preferable. I would prefer people to go home voluntarily. I can only say to him again, without labouring the point, that if he had been with me on a visit with an arrest team at 4 in the

morning and seen what that involves, he might have changed his view. All hon. Members need to appreciate how difficult and demanding enforced removals are in terms of resources, process and procedure. I shall give an example, and if hon. Members think it through, they will understand the point.

On the morning last year when I went out with an arrest team, there were eight or nine immigration officers, two cars and a people carrier. That number of staff is required because, if someone is apprehended, we need enough people to take that person to the nearest police station to be processed, as well as enough people to go to the next address safely. The safety of the officers and the people involved is paramount.

The team that I accompanied was out from 4 am until about 9.30. Teams go out at huge cost and are sometimes not very productive. People may not be at the address at that time or may have moved, and it is not always possible to know where people have moved. We do not get a good return on every outing on the resources that we have invested in trying to apprehend people. Let us face it—most people, for reasons that we can understand, do not want to go. They do not want to return home. The situation is very difficult.

The clause is the only way, or certainly the best way, to attempt to bring the realisation that support will not go on indefinitely to the forefront of people's minds at the point at which they exhaust their appeal rights in this country. They must take seriously the fact that support will or could be removed if they do not co-operate. However, while being robust and unapologetic about that objective, we are trying to ensure that we institute a fair and systematic process. I want to ensure, for my benefit as much as anyone else's, that the process gives people both opportunities and clear milestones, so that they are very clear about the consequences if they do not co-operate.

Mark Oaten (Liberal Democrat, Winchester)

On the issue of removals, I understand, of course, the practical difficulties that the Minister has outlined, but will she say whether, in parallel to these new recommendations, there are plans to consider how the removals procedure works and particularly to speed it up, so that there is not such a long delay between a decision and a removal taking place?

Beverley Hughes (Labour, Stretford and Urmston)

Yes, although I think that the hon. Gentleman's point is slightly unclear. Not so long ago, he asked me to extend the process to 21 days.

Mark Oaten (Liberal Democrat, Winchester)

Not the removals.

Beverley Hughes (Labour, Stretford and Urmston)

But removals are part of the process. That is what we are trying to achieve. I am trying to strike a balance between a process that does not drift, and in which there is clarity about how long people will have from one milestone to another, and one that is not elongated. Once that process of drift starts, people begin to think, ''Well, they haven't knocked on my door yet. They may not come, so we

might as well dig in.'' We need to avoid that happening. People need to know that there is a process and that it will happen with appropriate speed.

As I have said on several occasions, we will do whatever we can to ensure that the impact on any child affected will be kept to a minimum. However, that depends in large measure on the decisions and attitudes of the parents concerned. We must accept that duality: the Home Office has a role, but the parents concerned also have a clear role and responsibilities, as some of my hon. Friends have rightly pointed out.

David Heath (Liberal Democrat, Somerton and Frome)

Does the Minister accept the point made to her by the hon. Member for Walthamstow? There is a judgment of Solomon involved. Some of the most genuine, caring and loving parents will say goodbye to their children and put them into care because they genuinely believe that that will be a better option for their children than returning to the land from which they came. Irrespective of whether their fear is well founded, they will make that judgment.

Like the hon. Member for Walthamstow, I saw children of the age of five or six in refugee camps from Kosovo, who had been sent alone by their parents into a foreign land to escape persecution. Their parents had taken that decision to preserve them from harm.

Beverley Hughes (Labour, Stretford and Urmston)

My hon. Friend the Member for Walthamstow used the fact that some young people come to the UK unaccompanied as the basis for his belief. It is true that numbers of unaccompanied young people come to the UK and claim asylum, but because of the countries from which they come, the evidence is that those young people are mostly not fleeing persecution, but seeking a better life. Most of those young people are aged 16 and 17 and, although the numbers of such young people have fallen by half over recent months in line with the numbers of asylum applications in general, none the less the numbers remain significant. However, I do not accept the conclusion that my hon. Friend drew from that: that parents already in the UK with children will necessarily abandon them. I shall develop that point further.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

I simply want to remind the Minister of the biblical reference: Solomon exercises judgment by apparently threatening the child and thereby delivering justice to the child and the mother.

Beverley Hughes (Labour, Stretford and Urmston)

I hope that my hon. Friend will forgive me if I do not get drawn into biblical analogies.

We cannot say that parents would never abandon their children in the UK. However, I believe that for a parent to do that would require a different mentality—a different attitude to his or her children from that which I would have to mine or hon. Members present would have to theirs. I cannot begin to believe that most parents would abandon their children to care and then disappear, not knowing what was happening to

those children or where they were. I cannot believe that asylum-seeking parents would approach that sort of issue with a different mindset, and with less anxiety about their children than the rest of us. However, we must entertain that possibility if we are to argue that parents would abandon their children to give them a better life.

Gwyn Prosser (Labour, Dover)

When the immigration and nationality directorate comes to the decision-making process and in the subsequent process during which the four letters go out, and the possibility arises that there might be removal of benefit and consequential separation of parents from children, is it not the case that that the immigration and nationality directorate would take every action to detain the family as a whole and send them back as a whole rather than risk the consequences? That would be the case by default or by design, as the hon. Member for Winchester said.

Beverley Hughes (Labour, Stretford and Urmston)

My hon. Friend is entirely right. Provided that we had at that time the documentation to enforce a removal, that is what would happen if a family were not co-operating with a voluntary removal.

In conclusion, I am grateful that the majority of Members, whatever their view about the principle—there is a difference there between the Liberal Democrats and the Conservatives—have approached the issue constructively.In speculating on how the hon. Member for Woking (Mr. Malins) and his colleagues are going to vote on the measure, I point out that he has said in Committee that the Conservatives support the intention and the measure itself. I do not see how they can with any face do otherwise, given the measure introduced in 1996, to which my hon. Friend the Member for Walthamstow alluded, by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), now the Leader of the Opposition. It took support away from every claimant, not when their claim had failed but at the point of claiming. Had that measure not been overturned by the courts, that would have meant large numbers of families being destitute throughout the process of their claim, and not simply, as we are proposing, the withdrawal of support at the point at which a return home is the right course of action and the family becomes returnable because their claim has failed.

Humfrey Malins (Conservative, Woking)

I intervene since the Minister has mentioned my party. She is aware that the clause contains at least two issues of principle. While we understand the Government's approach in relation to the major concept of the clause, the Minister must not forget that it was my amendment in regard to an appeal this morning, supported by my hon. Friends, which resulted in the Government saying that they would go back and consider a method of appeal. When the clause contains some such suitable measure, we will be able to give it more wholehearted support, but it is not there yet. The Minister has made a concession to me, so she will understand that we had points both for and against the measure.

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Member expounds his difficult position with his usual elegance, but I still think that it is a difficult position.

Bob Blizzard (Labour, Waveney)

Does my hon. Friend agree that the Members opposite in this Committee have another problem, which is to square the fairly sensible and level-headed approach that they have shown today with the comments of their party leader during the Queen's Speech debate? I remember intervening on the right hon. and learned Member for Folkestone and Hythe. In response, he did not, as the hon. Member for Woking said, just express reservations; he launched into a tirade against the Bill. We thought that he was going to oppose the entire Bill, but actually his comments were focused on the measure in this clause. It will be interesting to see how Members opposite square what they do today with the lead from their party leader.

Beverley Hughes (Labour, Stretford and Urmston)

I agree with my hon. Friend. I have always wondered, since the Leader of the Opposition took that view, why he took his briefing from the newspapers.

Edward Garnier (Conservative, Harborough)

We could always change it.

Beverley Hughes (Labour, Stretford and Urmston)

I do not know what role the shadow spokesperson normally plays in briefing the Leader of the Opposition on what the Government are proposing, but the Leader of the Opposition clearly took his briefing from newspapers, which, contrary to being briefed by No. 10, had simply taken a line from a question that I was asked directly by a member of the Home Affairs Committee in previous days. I had to answer it directly and honestly, but the newspapers turned it on its head and made a claim in the Sunday papers that week. It is surprising that the Leader of the Opposition simply read the Sunday papers and did not carry out any further research into what the Government were proposing.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

Since the hon. Member for Somerton and Frome has set me into a biblical frame of mind I think that redemption is to be welcomed wherever it may come. That fact that the Tory party wishes to redeem itself from the position it was in should be welcomed. We should expect of course that some parties are unredeemable.

Beverley Hughes (Labour, Stretford and Urmston)

I share my hon. Friend's general view that when people return to the fold it is always very welcome.

Mr. Malins rose—

Mr. Heath rose—

Beverley Hughes (Labour, Stretford and Urmston)

I shall take brief interventions. We have the prospect of getting through the business early today, but we must not allow ourselves the indulgence of talking rubbish.

Humfrey Malins (Conservative, Woking)

This banter is occasionally to be welcomed, but I think the Committee will accept that the Opposition are approaching the matter with a degree of seriousness. We can pull each other's legs

about what has been said elsewhere indefinitely, but the Committee does its best work when it focuses on the issues before it. The Minister has a great deal of time for some of the points that we have made today and we do not want to go home feeling that we have been beaten about the head by Government Members.

Beverley Hughes (Labour, Stretford and Urmston)

I note the hon. Gentleman's comments. The hon. Member for Somerton and Frome (Mr. Heath) no longer wishes to intervene.

I will draw my remarks to a conclusion by saying, in relation to the hon. Member for Woking's last point, that I have responded today with further considerations and I have had no difficulty in doing so. However, I want to make it clear to hon. Members that that is also because, since the Bill was published, my colleagues, officials and I have been thinking about how best to implement the measure.

It may surprise some members of the Committee that the Home Secretary and I and all our colleagues demand of ourselves that we are comfortable with what we propose in legislation and with its possible impact—the way it will work. I do not know whether the hon. and learned Member for Harborough (Mr. Garnier) set himself a different standard when he was a Minister, but that is the standard that I demand of myself, as do my colleagues. I was well prepared to respond to some of these measures because, as I made it clear, it had also occurred to me that there might be a better way of doing things in relation to the appeal. I demand that of myself, and I am satisfied that as far as possible we are getting the balance right.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 3.

Clause 8 - Immigration officer: power of arrest

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 126, in

clause 8, page 8, leave out lines 14 to 26.

Marion Roe (Conservative, Broxbourne)

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

No. 39, in

clause 8, page 8, line 16, at end insert—

'(ia) section 8 (robbery),

(ib) section 9 (burglary),'.

No. 38, in

clause 8, page 8, line 19, after 'accounting),', insert—

'(iva) section 20 (suppression of documents),'.

David Heath (Liberal Democrat, Somerton and Frome)

Thank you, Mrs. Roe. I welcome you to the Committee this afternoon. In this debate we are considering the extension of immigration officers' powers of arrest. We have already had one canter round this course and the Committee will recall that on that occasion I made a general case about the precautions that should be in place if immigration officers are to have an enhanced power of arrest. The three areas that concerned me were: first, the application of the Police and Criminal Evidence Act 1984; secondly, the training of immigration officers to perform their tasks; and thirdly, the lack of an independent complaints procedure. In her reply in the previous debate, the Minister satisfied me, at least partly, on some of those points. To take them in reverse order, she told me that an independent complaints procedure was under consideration, and that she would write to me with details. Obviously, she has not had the opportunity to do so yet, but I welcome that, and I look forward to hearing her proposals in due course.

On the training of officers, the Minister explained that only those who had received arrest training from the police, and had qualified as arrest-trained officers, could effect arrests. Although there is no statutory backing for that, that is apparently the procedure within the immigration and nationality directorate. I also welcome that, although I still have views about how immigration officers should be given a wider role, with concomitant training. I think that they should be sworn officers of the law, but that is a debate for another time in another place.

The Minister drew my attention to the immigration codes of practice directions, which were already in place, and which she said underpinned the behaviour of immigration officers when making arrests. I should like briefly to deal with that point. First, having considered the two directions that were issued in 2000, I note that they were predicated on specific powers of arrest under specific legislation. It is clear to me that new directions should be issued in order to cope with this legislation when it is enacted. Can she confirm that the Government intend to introduce new directions in order to cover the widened powers of arrest that she proposes?

Secondly, I should like to follow up the point raised very pertinently by the hon. Member for Perth (Annabelle Ewing) in the previous debate. I hope that this is not too narrow a point, but it concerns the relationship of the Police and Criminal Evidence Act to Scotland where, of course, the Act does not have jurisdiction. We had reassurance from the Minister during the Committee's third sitting on Tuesday morning when, in response to an intervention by the hon. Member for Perth, talking about the practice of asylum and immigration matters, she said:

''that does not mean that how we require immigration officers to behave when they are executing important powers is not safeguarded in relation to how they operate in Scotland. It clearly

is, and the codes of practice that I outlined to the hon. Member for Somerton and Frome make that perfectly clear.''—[Official Report, Standing Committee B, 13 January 2003; c. 109.]

I have looked at the codes of practice that were outlined to me to see how they made that ''perfectly clear''. In the first one, the Immigration (PACE Codes of Practice) Direction 2000, article 3 makes it ''perfectly clear''. It says:

''This Direction does not apply in Scotland.''

In the second one, the Immigration (PACE Codes of Practice No. 2 and Amendment) Direction 2000, article 4 says:

''This Direction does not apply in Scotland.''

I accept that immigration officers are undoubtedly working to the same protocols in their work when they apply these terms in Scotland. However, unless there is a separate statutory instrument, of which I am not aware or have been unable to find—if there is, I should be extremely grateful if the Minister could draw my attention to it—there does not seem to be an additional statutory basis of protection for those who are arrested in Scotland by immigration officers working under reserved legislation—the various asylum and immigration Acts of the UK Parliament. There may be a lacuna. It may simply be that I am unable to find the relevant Scottish legislation, in which case she can help me and show me what is involved. It is clear that new secondary legislation is needed for England, Wales, Northern Ireland and Scotland to widen the scope of PACE to incorporate these new powers.

The amendment would remove those subsections that deal with theft, obtaining property by deception and the related offences under the Theft Act 1968. I understand the reasoning. I do not wholly oppose the view that immigration officers should have a widened power of arrest for matters that relate to immigration, including some that do not relate simply to providing false documentation at a point of entry. However, I am a little more at a loss as to why those other offences have been included as arrestable offences on the part of immigration officers rather than police officers.

There are two places where an immigration officer is likely to make an arrest, and one is at the port of entry when he first encounters the individual. Although it could happen, it is relatively unlikely that a person will have committed a crime of theft, obtaining property by deception, false accounting or handling goods between leaving a plane or ship and arriving at immigration control. If it were to happen, it is likely that it would be either directly associated with another offence against immigration law, in which case the power of arrest on the part of the immigration officer holds, or an ordinary crime such as knocking someone over the head and stealing their money. In the latter case, a constable would normally make the arrest and it would not be a matter for an immigration officer. I am not absolutely clear why the power is needed for these crimes at that point.

More worrying is the situation when the immigration officer will be called on to make the arrest in country. There is the prospect of considerable confusion between immigration officers, whose principal duties are not to apprehend people for such crimes, and police officers, whose principal duties are.

I do not want there to be that operational confusion. The hon. Member for Woking has yet to speak to his amendments, but they appear to make matters worse—the concept of robbery and burglary being investigated by immigration officers is slightly bizarre—but he will explain why he feels that that is appropriate.

Edward Garnier (Conservative, Harborough)

It is not for me to do the Government's job, and I will probably do it wrong anyway. It is not difficult to think of people presenting themselves at the first point of entry to this county who might have committed theft or obtained property by deception. There are plenty of passport scams and plenty of people travelling on stolen passports who might have stolen an official stamp and who could be caught by this part of the clause. I appreciate that there will not be a great number, as the hon. Gentleman admitted, but nevertheless to remove all these provisions would open up quite a large hole in our bulwark against illegal immigrants. Subsection (1) says:

''Where an immigration officer . . . forms a reasonable suspicion that a person has committed or attempted to commit an offence''.

That is not restricted to asylum seekers.

David Heath (Liberal Democrat, Somerton and Frome)

I understand entirely, but I am slightly mystified by the reasoning. There are other offences that would be relevant in the circumstances he described, not least in the same clause of the Bill; offences under the Forgery and Counterfeiting Act 1981 and so on.

For these circumstances to obtain for a person entering the country, either they must have committed the crime previously when they visited the country, or they took the narrow window of opportunity of stealing something between getting off the plane and arriving at the immigration desk. If they committed such an offence, it would be appropriate for an immigration officer to call a police officer, but I do not believe that that is a common occurrence. With an in-country issue, it becomes even more confusing. If immigration officers are to be given a power of arrest for all crimes, fair enough, but why for these specific crimes, so that their powers seem to overlay the responsibilities of the police?

The Minister may have a particular instance in mind that she will explain to the Committee and thus satisfy me entirely that this is a sensible provision. I will still have concerns about the environment in which arrests are made by immigration officers, but she is on her way to satisfying my concerns in that respect. Expanding the powers of arrest of immigration officers incrementally in this way without adequate explanation is not something that the Committee should encourage. We should question carefully why an immigration officer should have that specific power.

Andrew Turner (Conservative, Isle of Wight)

I agree with the hon. Gentleman's last sentence, but does he agree that the window may not be as small as he believes? If the vessel or aeroplane has British flags, an arrestable offence may be committed aboard that craft.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is right. I am not an expert in any sort of law, and certainly not in maritime law. I believe that there are already powers open to the master of a vessel to arrest a person or at least hold them on the basis of suspicion of such a crime. That matter is already dealt with and does not need the involvement of an immigration officer. It would be normal for the master or crew of a vessel to communicate ahead to the port of entry to request the support of the police authorities to deal with a person suspected of committing such a crime at the port of entry.

I think that that is the answer to the hon. Gentleman. If he was right, we should give the power of arrest for murder and manslaughter to immigration officers. It happens on ships on occasions—it normally requires a story by Agatha Christie to bring it to its denouement, but it is possible for it to happen.

Edward Garnier (Conservative, Harborough)

An immigration officer does not need a statutory power of arrest for murder any more than the hon. Gentleman and I do; it is an arrestable offence. He and I can arrest a person whom we reasonably suspect of murder, be it on a British aeroplane or on Westminster bridge. We do not need an additional statutory power.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Gentleman is absolutely right. Arguing ad absurdum, any citizen has the capacity to apprehend a person who they have grounds for believing is committing a crime, provided they can establish to the court that they had due reason for having done so.

We are here giving specific powers of arrest without warrant to immigration officers for criminal offences that are not directly related to immigration. That is the be-all and end-all of it. There has to be a reason for doing that, because they are not police officers—perhaps they should be, but they are not. We have police officers, not immigration officers, in this country to arrest people who commit crimes.

While that may be appropriate at a port of entry, about which I would need persuasion, it would not be appropriate somewhere in the country where that person happened to be and where the immigration officer happened to form a suspicion that someone may have committed an offence at some other place. Other than when a person is committing the crime at the point at which the interview is taking place, it would not be appropriate for an immigration officer, any more than an AA man, to have the statutory power to make an arrest.

If we want immigration officers to have the capacity to arrest of an omnicompetent constable, we should say so and not proceed in bits and pieces, adding criminal offences to the powers of arrest, without very clear arguments about why that should be the case. I will listen with interest to the hon. Member for Woking explaining why immigration officers should chase burglars and robbers.

Humfrey Malins (Conservative, Woking)

These are essentially probing amendments. In answer to the hon. Gentleman, I suspect that the Minister gave immigration officers the powers in the clause in respect of these offences because she and her Department believe, probably rightly, that such offences are most closely or commonly associated with the duties of an immigration officer. That is probably the answer that the Minister would give the hon. Gentleman in relation to the matter of murder, for example, which would be a rarity.

I understand broadly why the Minister is moving in that direction, and I advance the usual caveats: first, that the most vigorous training is absolutely essential for anyone who is given the power of arrest under statute, because giving someone a power over another citizen or person is an extremely serious matter.

The purpose of the amendments is to enable me to ask the Minister to explain why there is a limit in relation to offences under paragraph (g). If she is right, and she feels that a power is necessary for immigration officers in respect of the offences that they most commonly come across in connection with their duties, there is an argument that robbery and burglary should be included. Immigration officers do not necessarily operate only at a port; for example, their normal duties of work may involve conducting interviews at a property elsewhere. The similarity between robbery, burglary and theft is striking, in that all three involve dishonest acquisition of property. The only difference is that robbery is merely theft accompanied by force or the threat of force, and burglary, in real language, is theft from someone else's premises.

The mention of premises makes me wonder whether, during the course of their investigations, it would be likely that immigration officers might form a view that an offence of, say, burglary—stealing something from a property—has been committed. I am probing the Minister gently; I am sure she will have some form of answer for me.

I want to make a wider point: the Minister will have to realise that if immigration officers use these powers extensively, they will have to be trained properly in how and when to arrest, and in associated matters. They will also have to be trained in court procedures, because in cases of crime, judges will find that the arresting officer, perhaps the case officer, is an immigration officer. The immigration service will need to get on top of the fact that there is a court element.

Having done some research, I shall suggest an offence that immigration officers are likely to come across, which is a little-known offence under section 20 of the Theft Act 1968. It is so little known that I had never heard of it, and it is a miracle that I never had to try such a case. Section 20 of the Theft Act, ''Suppression, etc., of documents'', outlines the scenario of a person

''who dishonestly, with a view to gain for himself . . . destroys, defaces or conceals any valuable security . . . or any original document of or belonging to, or filed or deposited in, any court of justice or any government department''.

Have Government officials considered whether that charge should be brought in?

I shall pass briefly over the subject of bigamy. I advise the Government to proceed with caution before advising people on how to make an arrest for bigamy. I speak as the only member of the House of Commons who has tried a case of bigamy in the past 50 years. It is not easy to do, especially when trying someone whose idea of the correct number of wives is different from one's own, not least because they come from a culture where the issue is viewed differently.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Lady—

Humfrey Malins (Conservative, Woking)

Hon. Gentleman.

David Heath (Liberal Democrat, Somerton and Frome)

I am sorry, I was thinking of the occupant of the Chair, Mrs. Roe, at the same time as the hon. Gentleman.

The hon. Gentleman spoke about bigamy, but at least that has the advantage of being a crime that is bound up with identity. Therefore, a bigamous marriage could be a way of evading immigration procedures. It is right that an immigration officer should investigate that rather than the wider field of theft, robbery or burglary.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman may be right, but I urge the Government to proceed with caution, because such matters are very difficult indeed. During the passage of the Criminal Justice Act 2003, the Home Secretary offered a bottle of champagne to anyone who could draft a suitable amendment on a particular issue and nobody won it. In a similar spirit, I offer a bottle of wine to anybody on the Committee who can tell me why bigamy was regarded as extremely serious 150 years ago but is not today.

Annabelle Ewing (Scottish National Party, Perth)

I share the concerns raised by the hon. Member for Somerton and Frome as to the expansion of immigration officers' powers of arrest without a warrant. That trend must be examined closely. I naively thought that, as a general rule, we bestowed the power of arrest on police officers. That is a good general rule to maintain, and I think that the trend of expansion is worrying.

The hon. Gentleman alluded to the position in Scotland. As he rightly said, I raised the issue, during Tuesday's morning sitting, of the scope and application of PACE in Scotland, and suggested that it was not applicable and that the Minister should elucidate the position of immigration officers in Scotland. She could not say what the position in Scotland was, and I understand that she has many duties that keep her busy, but that raises the question whether the UK Government, when drafting Bills in so-called reserved areas, which none the less affect devolved areas, take any regard of what the differing legal position may be in Scotland. If full regard had been taken, the Minister would have been briefed differently, and she would have been able to respond in Tuesday's morning sitting to this important issue. This is symptomatic of the UK's Government's lack of understanding of the powers of the Scottish

Parliament. They have shown disinterest, disregard and a failure to understand what has been unleashed by the so-called devolution settlement.

Andrew Turner (Conservative, Isle of Wight)

Hear, hear.

Annabelle Ewing (Scottish National Party, Perth)

I, too, say ''Hear, hear,'' because I look forward to the day when we return to our status as a normal independent country. We could manage our immigration and asylum policy in the way that other small independent countries, such as the Republic of Ireland, seem to do very well indeed.

Finally, I should like to turn to the letter that the Minister was courteous enough to send to the Committee, addressed to you, Mrs. Roe, and your co-Chairman, dated 14 January 2004. She responded to various issues that had been raised about the burden of proof and, importantly, about immigration officers. Can she tell the Committee how many immigration officers are currently authorised to exercise powers of arrest? If she has figures for Scotland, that would be most helpful. It would be useful to know what the scale of this development is likely to be under the new powers in the clause. It would be helpful to have an idea of how many immigration officers are currently authorised to exercise a power of arrest.

Beverley Hughes (Labour, Stretford and Urmston)

Perhaps before dealing with the amendments, I can deal with some of the points that have been made about training and the safeguards with which the existing and new powers will be executed by immigration officers.

I am glad that the hon. Member for Somerton and Frome was at least partially reassured on the quality of training delivered by the police. On the specific points that he raised, in addition to those internal requirements on training and on the need for someone to be appointed by a senior officer before they can implement those powers, there are, of course, statutory obligations. May I clarify the points made by him and the hon. Member for Perth?

There is provision under the Police and Criminal Evidence Act for persons other than police officers to have regard to the relevant parts of the PACE codes. Immigration officers are required to have regard to any relevant provisions of PACE codes of practice when they are investigating an offence. In addition, section 145 of the Immigration and Asylum Act 1999 required the Home Secretary to issue a direction specifying the provisions of the PACE codes of practice to which immigration officers must have regard when exercising certain specified powers. Those powers are laid out in the Immigration (PACE Codes of Practice) Directions 2000, which we discussed earlier. The directions cover powers of entry, search and seizure that were introduced in that Act, as well as powers of arrest that have existed considerably longer. To answer the hon. Gentleman's first question, those codes of practice are under review, and the additional powers under this legislation will come under the remit of that review. We review the directions regularly, as a result of the changes to which he alluded. Further changes will have to be accommodated.

David Heath (Liberal Democrat, Somerton and Frome)

Can the Minister just confirm that there does not need to be a permissive power for the Home Secretary to issue new directions, for the purpose of this clause and the earlier clause?

Beverley Hughes (Labour, Stretford and Urmston)

No, there does not need to be a permissive power. The codes of practice are currently under review, as part of the arrangements for keeping them up to date.

Although the direction does not apply in Scotland, because PACE does not apply there, I hope that hon. Members who expressed concerns will be reassured to know that, in conjunction with the Crown Office, the immigration service has drawn up immigration arrest codes of practice for Scotland. That is why the codes of practice that were mentioned say specifically that they do not apply in Scotland. Scotland has its own codes of practice. If hon. Members read carefully the points that I made in the earlier discussion, they will see that that is what I said.

Immigration officers must operate to the same general standard, but in relation to the laws in Scotland. The codes specify that immigration officers exercising their powers of arrest in Scotland shall work within the boundaries of those powers and restrictions as described in the relevant parts of the Scottish legislation, which I am told is the Criminal Procedure (Scotland) Act 1995. Furthermore, the codes specify that, when exercising powers of search under the 1971 legislation, immigration officers must have regard to the PACE codes of practice.

I say to the hon. Member for Perth that I made those points clear at a previous sitting. So often, she seems to see and hear everything through the prism of her own detestation of the fact that there are reserved matters. Sometimes, that distorts her hearing. I presume that she knows the law in Scotland and is well aware that on these matters it is as rigorous as the law under PACE in England. The law in Scotland, as I made clear on Tuesday, applies equally—under different codes of practice, because it is different legislation—to immigration officers exercising those powers.

Annabelle Ewing (Scottish National Party, Perth)

It is correct to say that, eventually, the Minister was able to elucidate the position at least to an extent, in that there may be equivalent codes, after I perhaps helpfully suggested that that may be the case. Initially, however, in response to my intervention,

''We have had references to PACE, but what is the position of immigration officers in Scotland?'',

she said, inter alia, that

''the hon. Lady claims that PACE does not apply in Scotland''.—[Official Report, Standing Committee B, 13 January 2004; c. 108.]

On any reading, that suggests that the Minister did not believe my claims in the first place.

Beverley Hughes (Labour, Stretford and Urmston)

Not at all. I was simply making the point that there is the equivalent requirement of immigration officers, albeit under legislation that is obviously restricted to Scotland.

David Heath (Liberal Democrat, Somerton and Frome)

It is time that this part of the debate came to a close, but the Minister has now said that there is a code of conduct for immigration officers making arrests in Scotland, and it is helpful to know that. She says that it refers to the Criminal Procedure (Scotland) Act 1995. That is also helpful but, just so that I am entirely satisfied on the point, will she say whether there is statutory backing for that? Given that the codes of conduct for England and Wales are specifically predicated on the powers of arrest in a Bill that postdates the 1995 Act, and I know of no specific reference to Scotland in the 1997 legislation, is she satisfied that, although the codes are no doubt working well and giving good advice to immigration officers procedurally, they have statutory backing as well as a framework within Scottish law?

Beverley Hughes (Labour, Stretford and Urmston)

I accept the hon. Gentleman's point about the chronology of the relevant legislation in Scotland and the directions, codes of practice and so on that we have since developed. I will check that point and see whether I can reassure him in writing.

The hon. Member for Perth asked about the numbers of arrest-trained staff. There are arrest teams throughout the United Kingdom. I do not have the number of people approved in England and Wales, but I understand that one team operates in Scotland, consisting of about 10 people. Again, I am happy to confirm the figures to her in writing.

The hon. Member for Woking asked a question about the need for immigration officers to be able to be called to court by judges and to give evidence in court, if they make arrests for other offences. The specialist crime teams that we are discussing, which will be able to use those powers, already undergo a three-week training course in which they receive training in court procedures. That is in addition to their ordinary arrest training. We will examine whether they need anything further relating to those non-immigration offences.

With regard to amendment No. 126, we have tried to be cautious in selecting offences for the clause that are strictly immigration-related. I believe that the hon. Member for Somerton and Frome said that the offences are not immigration-related. We have carefully restricted the power to those offences that are immigration-related. He is right that they are not immigration offences, but they are immigration-related, in the sense that they are offences that frequently arise, or of which immigration officers frequently suspect people, when they are pursuing immigration offences.

I assume that, because the hon. Gentleman has not sought to remove other offences in clause 8, he accepts in principle that there is a need for, or a benefit from, immigration officers being empowered to deal with such matters. However, he apparently remains unpersuaded of the merits of including offences under the Theft Acts 1968 and 1978. It may therefore be helpful to him if I can briefly describe some of the thinking behind our inclusion of those offences.

Immigration officers in the immigration service crime teams routinely encounter people in possession of stolen passports or other valuable documents. Those documents may have been stolen by the people

themselves, who are therefore committing—in England and Wales—an offence under section 1 of the Theft Act 1968. They may be handling stolen goods and fall foul of section 22. Similarly, those who take passports from their rightful holder and do not return them—in cases such as those of abused domestic servants or forced prostitutes—are also committing the offence of theft.

We are all aware that stolen identity documents are of tremendous value to those who possess them. British passports, for instance, grant access to a variety of goods and services that are not available to others, and that is why we have sought to include offences under sections 15 and 16 of the 1968 Act as well as sections 1 and 2 of the Theft Act 1978.

Section 17 of the 1968 Act was selected because it covers a number of offences that immigration officers also encounter. For example, an asylum seeker supported by the National Asylum Support Service who opens a bank account in a second identity, perhaps to conceal money that they have at their disposal and that they would rather the Government did not know about for the purposes of that support, would be committing an offence of false accounting, as potentially would an employer who altered his records to avoid prosecution for employing illegal workers.

However, the two main points are that the powers will be available only when an immigration officer ''forms a reasonable suspicion'' that an offence has been committed when he or she is

''exercising a function under the Immigration Acts.''

It is not proposed that immigration officers will initiate investigations into theft, or into any of the other offences specified in clause 8. An immigration officer will be able to arrest for such an offence only when it comes to their notice in the pursuit of their ordinary duties under immigration law. An example given to me by one of our officials is that an immigration officer who, while mowing her lawn, sees her neighbour acting suspiciously cannot bound over the hedge and arrest that person. She has to call a police officer in the same way as any of us.

It is a sensible measure, which can be exercised only when the officer is pursuing an immigration matter. In the event of reasonable suspicion, a threshold that has to be satisfied, it will enable the immigration officer to arrest for those further offences without the need to call a police officer. I hope that, with those reassurances, the hon. Member for Somerton and Frome will be satisfied that this is a proportionate measure that will be of benefit in terms of the use of police immigration resources. It can be used only in constrained circumstances.

I turn to amendments Nos. 38 and 39. As I have made clear, the offences in the clause have carefully restricted to those that routinely come up, or that immigration officers suspect come up in the course of their duties. The offence in section 20 is not being provided for because, first, it is unlikely that an immigration officer would come up against a circumstance in which that offence could apply and, secondly, it is unlikely that it would ever be used in an immigration context.

Section 20 is an offence generally committed in relation to financial matters, for example, mortgage fraud. While section 20 theoretically covers—the hon. Gentleman is right in his interpretation of that little known piece of legislation—the destroying and defacing of official documents, which could include Home Office documents, in an immigration context, someone would be doing that in pursuit of another goal, such as illegal entry. It would be much more appropriate and relevant to try to prosecute someone under section 25 of the Immigration Act 1971, not under the Theft Act 1968. I hope that he will accept that that would be much less relevant, and for that reason it probably would not be appropriate to provide in these measures the immigration officer with powers to arrest.

In relation to robbery and burglary, there is a requirement that the immigration officer has a reasonable suspicion that an offence has been committed in order to be able to arrest for it in an immigration context. While it is true that, to take the example of the stolen passport and document, someone might have procured that document in a robbery, at the point of discovering that document, the immigration officer could not really have a reasonable suspicion that it had been procured in that way. All he or she might know is that the person had a stolen document. It therefore seems right to us, in circumscribing this power and requiring the threshold of reasonable suspicion, that we do not include robbery and burglary, because that is a step beyond what the immigration officer could reasonably know or suspect. I hope that with those assurances hon. Members will agree not to press their amendments.

Bigamy has been mentioned, which is an important example to include. I am given to understand that the General Register Office for England and Wales estimates that over 90 per cent. of bigamous marriages involve foreign nationals. For the Committee's information, the three most prolific polygamists who have been encountered, who have married 27, 15 and 13 times respectively, contracted all their marriages to persons from overseas, obviously as part of a wide-scale immigration abuse. As such, bigamy can be considered, as the hon. Member for Somerton and Frome identified, as a crime with a strong immigration context. It seems appropriate that an immigration officer should be able to arrest for it if called on to do so and if they have a reasonable suspicion. I hope that hon. Members are reassured.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for her careful explanation of what is proposed. I am ready to be persuaded that the codes of conduct are properly applied in Scotland. I just wanted to check that they are and that there is a statutory backing as well as simply a procedural backing to what is proposed. We need simply to check with the relevant legislation to make sure that that is the case. The Minister has gone

a long way to reassure me both about training and looking at the appropriate independent complaints procedures.

In terms of the offences to which she is extending the power of arrest, she was right to stress the connection between the list of offences under subsection (2) and the circumstances of arrest in subsection (1). That is an important qualification that needs to be emphasised: it is in the course of exercising a function under the Immigration Acts. I am still a little concerned that this confers a power of arrest on an immigration officer on one of those counts when no immigration offence, as such, has been detected or where there is no suspicion that one has been committed. In those circumstances it seems more proper that the arrest should be effected by a police constable or a Customs and Excise officer rather than an immigration officer.

I accept that there are connections of the sort that the Minister explained. The purpose of the amendment was to probe and to elicit those explanations. I do not intend to recap the discussion on bigamy. We never talk about polyandry in these circumstances. Bigamy is understood to encompass polyandrous marriages. The two must be equally a problem when it comes to immigration matters. I will digest carefully what the Minister has said and if we need to return to the issues, we will do so. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Andrew Turner (Conservative, Isle of Wight)

I beg to move amendment No. 118, in

clause 8, page 8, line 30, leave out 'and'.

Marion Roe (Conservative, Broxbourne)

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

No. 119, in

clause 8, page 8, line 37, at end insert

'and

(n) an offence under the Immigration Acts.'.

No. 122, in

clause 8, page 8, line 37, at end insert—

'(n) an offence under this section'.

New clause 6—Obstruction of immigration officer—

'It shall be an offence to obstruct an immigration officer in the course of his duties.'.

Andrew Turner (Conservative, Isle of Wight)

I will be brief. This is a probing amendment and I want to know why the Minister has not included an offence under the Immigration Acts and why it appears not to be an offence to obstruct an immigration officer. It may be that the law provides elsewhere that those are offences and it may be that she does not believe that those offences are necessary.

I take a slightly different view from the hon. Member for Somerton and Frome on the question of who should and should not have powers of arrest. I accept that not everyone can have powers of arrest for everything, but it would be a pity so to limit the powers of immigration officers that they have to telephone a policeman when they want someone to be arrested. Customs and Excise officers and RSPCA officers have powers of arrest for certain offences.

I have never quite understood why it is felt necessary so to restrict the powers of arrest that only policemen can exercise them. We all have a responsibility for upholding the law. We all have the power of arrest under common law for common law offences and so we should look at who can reasonably exercise a power of arrest rather than why such a power should not be exercised other then by a policeman, which seems to be the hon. Gentleman's approach.

Beverley Hughes (Labour, Stretford and Urmston)

I commend the hon. Gentleman on his attempts to ensure that there are no gaps in our consideration of the Bill and on his brevity. I hope that I can deal with the amendment equally briefly. The short answer to the question that the hon. Gentleman's amendments are designed to prompt is that the gaps are plugged by existing legislation.

Amendments Nos. 118 and 119 would allow immigration officers to arrest without a warrant a person suspected of an offence in the immigration Acts. However, immigration officers currently have the power to arrest without a warrant persons suspected of offences contained in the Immigration Act 1971. The Immigration and Asylum Act 1999 inserted section 28A into the 1971 Act to allow immigration officers to arrest without warrant those suspected of offences contained in several sections of the 1971 Act, including sections 24, 24A, 25, 25B and 25C. Those sections cover offences of illegal entry, overstaying, breaching conditions of stay, obtaining or seeking to obtain leave by deception, facilitating the breach of immigration law and assisting an asylum seeker to arrive for gain.

Immigration officers do not have the power of arrest without a warrant for some offences in the immigration Acts. For example, an immigration officer may not arrest someone for failing to submit to a medical examination, which is an offence under section 24(1)(d) of the 1971 Act, without first obtaining a warrant. In such cases, we believe that it is appropriate for a power of arrest under the immigration Acts to apply only with a warrant. As I have said, teams of immigration officers have received specific arrest training to allow them to operate without police assistance. Those officers have been using their powers to arrest suspected immigration offenders since 2000.

I am sure amendment No. 122 was tabled with the intention, in conjunction with another amendment, of creating a new offence in the subsection. On its own, however, amendment No. 122 would have no material effect, so I hope that the hon. Gentleman will forgive me for saying no more on it.

Andrew Turner (Conservative, Isle of Wight)

New clause 6?

Beverley Hughes (Labour, Stretford and Urmston)

On new clause 6, section 26 of the Immigration Act 1971 includes various offences in connection with the administration of the Act. Section 26(1)(g) states that a person commits an offence

''if, without reasonable excuse, he obstructs an immigration officer or other person lawfully acting in execution of this Act''.

The new clause would replicate an offence already in existence. A person convicted of an offence contained in section 26 of the 1971 Act is liable on summary conviction to a fine of not more than level 5 on the summary scale, a maximum sentence of six months' imprisonment or both.

I thank the hon. Gentleman for searching out what he thought might be loopholes that needed to be closed, but I hope that I have assured him that existing legislation covers the intention of his amendments.

Edward Garnier (Conservative, Harborough)

The Minister's closing remarks provoke me to make a brief intervention. I sympathise with the difficulty in which my hon. Friend the Member for Isle of Wight (Mr. Turner) found himself. Many people whose daily lives are not spent working their way through criminal or other statutes find our work more like trying to solve a crossword puzzle than making good law. I do not expect the Government to codify the entire criminal law but, prompted by my hon. Friend, they could codify immigration and asylum law. If they did nothing else, they could do that.

The Minister's answer was commendably brief, but she had to refer back to at least one other statute to make sense of her riposte to my hon. Friend's case. A perfectly reasonable argument could be made for codifying this discrete part of the law to prevent the problems met by my hon. Friend and others who have to administer and consider immigration and asylum law. People will continue to meet those problems until we have one volume of immigration and asylum law. It would be so large that it would have to be in separate books, but I hope that one day we will be able to codify the entire criminal law to make the lives of the legislator and practitioner a lot easier and the life of the criminal a lot harder.

Andrew Turner (Conservative, Isle of Wight)

I thank my hon. and learned Friend for that suggestion, with which I concur entirely.

The Minister's response reassured me completely. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at three minutes to Four o'clock till Tuesday 20 January at ten minutes past Nine o'clock.