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Extract
from House of Commons Hansard, Debates for 17th December 2003
Asylum and Immigration (Treatment of Claimants,
etc.) Bill
Mr.
Neil Gerrard (Walthamstow):
This is
the fifth time that I have taken part in a Second Reading debate on an
asylum and immigration Bill since entering this House in 1992. It is also
the fifth time that I have been told that such legislation was going to
solve all the problems with the asylum and immigration system; and, of
course, it is only a year since the last such Bill was debated.
When I first
looked at the Bill before us, I could not see too much of a problem with clause
28—the short title—but I have some difficulty with more or less every other
clause. I then realised that I was perhaps being a bit harsh. Some clauses deal
with trafficking and the powers of the Office of the Immigration Services
Commissioner. With some minor changes, they will be welcome, but there is not
much else in the Bill that I welcome. It has been presented to some extent as a
tidying-up exercise that deals with some of the remaining problems in the
system, but it is not just that. The effects of some clauses, particularly
clause 10, are far more fundamental.
Of course,
clause 7 does not introduce an entirely new power. Schedule 3 to the
Nationality, Immigration and Asylum Act 2002 contains the power to allow support
to be withdrawn from a family who do not co-operate with removal directions—so
the Government already have that power, which can be applied to a family with a
dependant. It was introduced in 2002 at a very late stage in the legislation's
passage, and we had virtually no time to debate it. In fact, the total time
spent debating some of the later clauses was very short indeed.
The proposal in
clause 7, however, is of a different nature. Under the clause, we will use
destitution, or the threat of destitution, to get families to leave the country
voluntarily, rather than using the Home Office's existing powers to remove
people whose asylum claims have been rejected. We all understand that removals
must take place, and that removal is not a pleasant thing. Indeed, it can be a
very unpleasant exercise, especially when families with children are involved.
Time and again, I see failures arising from the complete dislocation in the Home
Office system. There is no real connection between decision making and
enforcement, as completely different groups of people are undertaking the two
processes. As a result, huge time lags occur between a decision being taken and
something being done to enforce it. It is not surprising when that happens, and
it has nothing to do with appeals. Appeals can all be finished, but nothing
happens, so it is not surprising that people then assume that they will be
allowed to stay, and do not take the removal directions seriously.
I am not
entirely comfortable with the Select Committee's recommendation that we should
just wait for assurances on that matter. I referred earlier, as did my hon.
Friend the Member for Hammersmith and Fulham (Mr. Coleman), to assurances that
we were given last year on section 55 of the 2002 Act—another part of that Act
that was debated for a grand total of, I think, 15 minutes in this Chamber—which
cut off support to people who applied late. We were then told clearly that the
section was intended to deal not with people who had been in the country for
only a short time, but with people who had been in the country for weeks and
months, and it would not be used to deal with people who had been here a matter
of days. None the less, people have had support cut off when they have been in
the country for a day or less. The first time that I have heard the period of 24
hours cited as a norm has been in today's debate, when the Home Secretary cited
it at the beginning, and then said that he would generously extend it to three
days. That is still completely different from what we were told when the
provision was introduced. When one has had such assurances in the past, one
becomes a little wary of accepting them over the operation of new legislation.
Ms Abbott:
May I take my hon. Friend even further back in time, to the introduction of the
voucher system and totally cashless support? When some of us complained that
that would only drive people further into destitution, we were told that we were
wrong, and that that system would be an engine and a lever to discourage abuse
of the asylum system. What happened? People were forced further into
destitution. A punitive approach to asylum control demonstrably does not work.
Mr. Gerrard:
That argument has been put many times in this Chamber over the past few years,
and it has been proved right. Punitive approaches simply do not work.
I have one last
comment on clause 7, which is on the practical implications of how it will
operate. Some of us have seen a flow chart produced to illustrate how the
process will run through stages involving up to four different letters from the
Home Office to the family, depending on whether a family attends an interview,
fails to attend without reasonable excuse and so on, through to either their
leaving the country or support ending. When I looked at it, I found that there
were chunks missing. I could not find any box that said "Home Office sends
letter to wrong address because it doesn't have a record of a person's change of
address", or "Home Office sends letter cutting off support to someone else of
the same name", or "Home Office has lost the reply from the person who sent it".
Believe me, all those things will happen. That is precisely what happens time
and again now. I can tell hon. Members that distressed families will turn up in
our surgeries time and again because of the operation of the system, and we will
have the nasty job of telling them what is going to happen to them.
Clause 7 is
bad, but it is not the worst part of the Bill. The most serious part of the
Bill, by some way, is clause 10, which seems to be based partly on the view that
the use of appeals is just deliberate delay, and that the judicial system is not
there to be used. We put the Human Rights Act 1998 in place, but we complain
when someone uses it.
As has been
pointed out, clause 10 removes all judicial oversight of decisions. That is not
just for asylum cases but for many immigration cases as well, which at the
moment can go through that process. It will be impossible to challenge decisions
on a point of law. The only person who will be able to decide whether a point of
law is involved will be the president of the new tribunal. That is justified on
the basis that people waste time and that the number of successful appeals is
tiny—3 per cent. has been cited. I have looked at the statistics, and I think
that I know where the 3 per cent. comes from, although I am not absolutely sure.
The only place that I can find anything that looks like 3 per cent. is where the
number of decisions made by the immigration appeal tribunal on leave to appeal
is compared with the number of appeals allowed. That works out at about 3 per
cent., but it is a completely spurious statistic.
Let us examine
what happens on the basis of the latest figures. Nearly 23,000 people applied
for leave to go to the IAT. We heard that there were 6,900 appeals. The tribunal
knows how to filter out cases that do not have much merit. It allowed 620
appeals—only 11 per cent.—but sent another 48 per cent. back to the
adjudicators, so almost 60 per cent. of cases were recognised as worth looking
at. That is not 60 per cent. of initial decisions, but 60 per cent. of cases
that go before the IAT.
The same
applies to judicial review. Many applications are made, but the courts reject
most of them and do not allow them to go much further. In 2002, there were 2,980
decisions on applications, of which only 260 were granted leave. The court gets
rid of cases pretty smartly when it does not believe that there is much merit.
Of those that were determined, however, 30 per cent. of people seeking judicial
review won their case.
Those are not
insignificant figures, but are we playing a numbers game? I am not defending the
IAT as such, or saying that I have a fundamental objection to a simplified
appeals system with one tier of appeal, provided that people can still apply to
the appellate courts or the higher courts, if necessary. The decision must not
be made solely by the president of a tribunal.
The Select
Committee is wrong in saying that we should wait until we have an improved
number of decisions, because it is playing the numbers game rather than
examining the principles involved.
The purpose of
the higher courts such as the House of Lords is to deal not with large numbers
of cases, but with important cases. They should set case law, but no case law
will be established under the new system. Case law, when established, affects
many people, so it is not the numbers that matter, but the principle of how a
system operates. If the principle under discussion applies here, where else will
it apply? We could find out how many civil or criminal cases go to the highest
court in the House of Lords and express that as a percentage of all appeals. It
would be tiny, so let us get rid of that. That would be just as logical as what
is proposed.
Mr. Russell
Brown (Dumfries): My hon. Friend is right that we must have a decent appeals
system, but I ask him to examine it from the other side as well. Individuals and
families going through an appeals system, usually represented by legal aid, are
dragged through a process in the belief that there is justice and a positive
answer at the end. I mention the Ay family, who were dragged through the system
in Scotland, when, quite honestly, the decisions taken at an early stage were
the right decisions, but someone—their legal representatives—saw fit to drag
them through a system with no decent outcome at the end. Some people use the
appeals system for all the wrong reasons.
Mr. Gerrard:
I am aware of cases where lawyers have given extremely poor advice about the
chances of winning on appeal and dragged people through the system without
helping them in the slightest, but the higher courts are not unskilled at quite
quickly filtering out the cases with no merit at all. As I said earlier, I do
not object to a basic one-tier system, provided that there is judicial oversight
that allows cases that really matter to be looked at by the appellate courts—up
to the House of Lords, if necessary.
Mr. Heath
rose—
Mr. Gerrard:
If the hon. Gentleman will forgive me, I must finish.
The Bill goes
further than any that I have ever seen in removing judicial oversight of the
asylum system. I cannot help wondering what we would have said if this Bill had
been introduced by a Tory Government. I recall what was said by the then hon.
Member for Sedgefield (Mr. Blair) when the Tories were removing certain rights
to appeal in 1992:
"It
is a novel, bizarre and misguided principle of the legal system that if the
exercise of legal rights is causing administrative inconvenience, the solution
is to remove the right."—[Official Report, 2 November 1992; Vol. 213, c.
43.]
Now that he is
Prime Minister, he should remember those words.
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