§ Question again proposed, That the amendment be made.3.45 pm
§ Mr. Mark Oaten (Winchester) (LD)
I start by sharing a sentiment with the Home Secretary on the outcome of the Soham murder trial. I should add that if it does emerge in the next day or two that there were some serious record-keeping errors in the past, that will be of serious concern to parents throughout the country. After all, what is the point in having such measures in place if there has been a failure? I hope that the Home Secretary will come to the House as soon as possible to explain what will be done to examine the issues thoroughly.
If somebody had told me six years ago, when I entered Parliament, that as a Liberal Democrat I would be arguing against an immigration Bill that used children as a tool to try to remove asylum seekers, and which took away levels of natural justice, and then told me that it would be a Labour Government to whom I would be raising objections, I would not have believed that possible. However, since the Labour Government came to office, they seem persistently to want to battle it out in the right-wing press to try to outbid the Conservatives in their period of office.
If the Home Secretary, as he said, wants to try in the next few months to have some more positive leaders in The Guardian, my advice to him is that he may have to do away with some positive leaders in the Daily Mail if he is to achieve such an outcome.
I shall run through some of the measures in the Bill. Before doing so, I will place my remarks in the context of why we are having the debate in the first place. There have been discussions about the degree of the problem in relation to asylum seekers. A couple of weeks ago, the Government announced that by their own measurements, there had been a reduction in the number of asylum seekers coming into the country. It strikes me as slightly odd that against that backdrop of a clear Government target met, they want to introduce another wave of measures, I assume to try to have a further cut in place. When the Minister replies, it may be useful for him to explain whether an assessment has been made to ascertain what reduction in the number of individuals seeking to come to the UK the Government want.
Is there to he another target similar to the one that the Prime Minister announced a year ago? If not, have the Government made assessments of the impact of these changes? It strikes me that the sole purpose of the changes must be to try to reduce the number of asylum seekers entering the country. It would be helpful all round to know what the target is, or whether there is a target.
I hope that the Government will accept that one of the reasons why we are seeing a reduction in the numbers is that there has been a change, with the expansion of the European Union, which will be embedded in 2004. Some of the measures that the Government will put in place with the enactment of the Bill may not be needed if the pattern that seems to be emerging over the last year or so continues.
1623 There are three or four critical clauses and I shall raise some concerns and put my points to the Minister. First, there is clause 10, which introduces a fundamental issue. There is much talk about children and benefits, but for me the big principle rests with the changes that the Government plan to the appeal system that currently operates. It seems that the Government, despite the Home Secretary's assurances that there will still be some peculiar route to a higher court, are doing away with a level of appeal. Not only that, they are doing away with the principle of being able to go to a higher court for some form of judicial review.
Tellingly, the Law Society has said:The general principle of English law is that the High Court exercises a supervisory jurisdiction through judicial review, over administrative decisions and the work of tribunals, in order to ensure there is a remedy where those bodies make errors of law or reach decisions in a way that is grossly unfair.It added:It is essential that asylum appeals which deal with life or death issues are subject to that full and proper judicial scrutiny.I cannot understand why the Government want to take away that protection and break an established principle that we have in law.
It is important to have the ability to refer on to a higher court. We have often seen in the past that testing out some laws through judicial review has resulted in better decisions. It has changed the practice. It has changed the way in which decisions were made in the first place. We will lose all that now.
Are the two things not linked? Is not clause 7 made infinitely more iniquitous because of the problems introduced by clause 10, which make it infinitely more likely that deserving cases will be subject to the provisions in clause 7?
§ Mr. Oaten
All the clauses are connected in many ways, and the implications of rights being taken away in one clause by changes introduced by other clauses are very dangerous indeed. I would include in that something that is not in the Bill but which is being discussed elsewhere—the plans to change legal aid. If the Government are moving towards a more streamlined approach and want to remove certain levels of appeal, it is critical that decent decisions be made. If such decisions are to be made, decent legal aid must be in place. The Government proposals to remove legal aid should be put on hold until we have seen how the changes in the Bill bed down.
§ Jeremy Corbyn
I agree, particularly with the hon. Gentleman's last point. Is he aware that, especially in inner London, large numbers of solicitors' firms are closing down because they simply cannot afford to represent immigration and asylum cases? Voluntary sector law centres are overwhelmed by cases, so people can only go to places where they are prey to unscrupulous, incompetent advisers who often mess up a case, resulting in a grave injustice at a later stage.
§ Mr. Oaten
That is an extremely valid point. The consequences of the proposed changes in legal aid are 1624 serious, as we could end up with individuals who have not got the necessary skills, particularly given the change in the structures suggested by the Government.
The Government are breaking a fundamental principle, and it is extraordinary that they should do so, as there are very few areas indeed where they have removed the ability to go on to a second appeal and then a higher court. In fact, the only other area in which they have made such changes involves issues of national security. The affected bodies are the investigatory powers tribunal, the Special Immigration Appeals Tribunal, and the Proscribed Organisations Appeal Commission. I do not see how the issue of dealing with asylum seekers falls into that category of national security. Having already broken one principle, the Government should not break the principle of referral to a higher court of genuine asylum cases. The plans to take away the option of another tribunal looking at a case are of concern, let alone the issue of being able to go to the High Court. The limitation of having only a written review, which cannot be discussed unless technical issues are raised, narrows very unfairly indeed a tribunal's ability to review its own decision.
It is critical to establish the number of individuals who are going through the process at the moment. When we debated the Queen's Speech a couple of weeks ago, I tried to establish with the Home Secretary how many people were involved. There was general agreement that in the first stage of appeal 20 per cent. of cases were successful. In the second stage of appeal, I argued that 20 per cent. of people were successful, but the Home Secretary said that it was more likely to be 3 per cent. It is important to get that figure right. A Library briefing tries to clear the issue up:The Home Secretary has consistently referred to 3 per cent. of appeals to the IAT being successful but this is not apparent from the published statistics".It appears that there is genuine confusion about the number of individuals who are currently successful on the second appeal. In written answers, the Home Office has not been able to tell me what proportion of immigration appeal tribunal appeals are initiated by the Home Office, and it cannot tell me what proportion of Home Office appeals are successful compared with appeals lodged by individuals. Without those statistics, it will be difficult for us to debate the issue in Committee, as it is critical to know how many individuals will be affected by the removal of the second tier of appeal. I hope that in the time available we can try to get more detailed figures.
Far too many cases are being dealt with incorrectly at the first stage of appeal. The 20 per cent. figure suggests that there are serious problems with the way in which the process is currently conducted. The situation seems to have got worse in the past five years, and in particular country cases, 39 per cent. of appeals by Somalis and 38 per cent. of appeals by Sudanese have been successful. Something is clearly going badly wrong in the system if that proportion of decisions is proven to have been incorrect.
§ Vera Baird (Redcar) (Lab)
The situation is even worse than the hon. Gentleman sets out. The 22 per cent. average failure rate allows for the abusive applications that we have heard a good deal about. 1625 Many applications are made that should not be made and do not have much of a leg to stand on. They, of course, weight the average. I do not know whether the hon. Gentleman is prepared to take it from me, but there are some skilful asylum practitioners who have a success rate on appeal of 90 to 95 per cent. That is what we are really talking about.
§ Mr. Oaten
The hon. and learned Lady's reputation is such that I am prepared to take it from her. That demonstrates the need to establish the figures clearly before Committee stage; otherwise we will be discussing these issues in a vacuum.
All hon. Members agree that we must speed up the process by getting it right in the first place, not by cutting out tiers of natural justice. That means, as we have heard, better training and—we have not heard this—better use of interpreters during the early process. There could be difficulties over language and understanding what is being said at that stage. Better and faster information is needed on applicants' countries. The Home Secretary said that the Government had established the advisory panel to help produce that information.
I have concerns, first, that the information is still not as up to date as it could be about possibly fast-moving events in those countries, and secondly, that the information and all the data collected with it are not getting through to the individuals down on the desk who take the initial decisions. We need to make better information available faster. Finally, the proposals to do away with legal aid will make it extremely difficult to try to steer an individual's case through a changing legal process.
I turn to clause 7 and the controversial issue of the withdrawal of benefits. As I said, this is the issue that has hit the headlines. I know that the Minister is irritated by it, and that she will claim that no briefings by the Government to the press have taken place. Nevertheless, I am left with an impression—I do not know where it came from—that the issue of children and asylum was put in the press from somewhere. However that happened, it is extremely regrettable that the subject of children has been raised in that way, as part—
§ Beverley Hughes
For the record, let me clarify, in addition to my earlier comments on the issue, that the Government publicised their intention to legislate in precisely this way on 24 October, when I announced the ILR—indefinite leave to remain—exercise involving 15,000 families. We also announced these measures. On 27 October, in our first consultation document, we included the details of what is in the Bill. The Bill says nothing at all about taking children into care. That is not the measure that we are debating.
§ Mr. Oaten
Whether the announcement was made three months ago or three weeks ago, it is incorrect and wrong. It is clearly the intention of the Home Office to remove the benefits of children and families. That will lead to hardship and will make it necessary for social services to make judgments on those children. On the "Today" programme yesterday morning, the Minister said that she did not expect any children to be taken into care because parents would comply if threatened in that way. Does she stand by the view that she does not 1626 envisage children being taken into care because people will comply? I believe that is the Minister's view—that children will not be taken into care. [Interruption.] I am happy to give way.
§ Beverley Hughes
If the hon. Gentleman wants me to intervene to answer that question, rather than doing so from a sedentary position, I am happy to do so. I do not believe that the vast majority of parents who are asylum seekers, any more than the vast majority of any of us as parents or any other group of parents, will want to be separated from their children when they have an alternative remedy, which is to go home, with assistance. That is my position.
§ Mr. Oaten
My instincts as a parent are much the same as the Minister's, but it is the Opposition's role to ensure that we have good legislation, and that is not achieved by putting in place a threat that one hopes will work and that one therefore does not expect to have to use. If that logic applied, there would be fewer people in prison. We have laws, we hope that they will act as a deterrent, but human nature is such that people take different views from those that the Minister or I might take. The Government put forward a similar argument for section 55 of the 2002 Act. The logic then was that individuals would not make late claims because the possibility of losing their benefits would be a deterrent. In fact, the evidence is that people have been prepared to lose their benefits.
§ Dr. Jenny Tonge (Richmond Park) (LD)
Does my hon. Friend agree that a really good parent who had escaped terrible persecution in their country of origin would be quite likely to prefer to leave their children in care than have to take them back to the country where they knew that they would seriously damaged?
§ Mr. Oaten
I agree entirely with my hon. Friend. The Chairman of the Home Affairs Committee said:Faced with that choice, families might disappear and leave their children in care, thinking that may be the better option, because at least the children would get to stay in Britain and perhaps the adults would get to stay here, albeit working illegally".
§ Ms Abbott
The Minister says that she believes that the majority of parents, faced with having their children taken into care, will comply with directions and return home. But how big will be the minority of parents who do not comply? Are we talking about a dozen, a couple of dozen, a hundred? Perhaps when she winds up, the Minister will tell the House how big the minority of children will be who will end up in care as a consequence of the Bill.
§ Glenda Jackson (Hampstead and Highgate) (Lab)
I applaud the Minister's natural sense of how she would behave in a situation, but would not a logical conclusion of that be that every child who arrives here as an unaccompanied minor seeking refuge is an orphan? I know that many of them are, but not all of them are.
§ Mr. Oaten
Again, that is an extremely good point, which is one of those issues that, when we have line-byline analysis in Committee, we shall want to probe.
1627 I should like an assurance from the Minister that, at the point at which the decision is taken to withdraw benefit, someone will ensure that a meeting takes place with the local social services department to explain the consequences of losing the benefit and what will happen next. If the benefit is simply withdrawn, and the other agencies are not informed, over a period of months some form of hardship could develop of which none of the other agencies would be aware. Whatever our views about the clause, we would not want such a situation to emerge. It is important that individual authorities should be notified.
For tackling the problem of removals, Liberal Democrats do not support the idea of an island; rather, there should be a greater use of existing powers. The situation has been allowed to go on for far too long, and the long delays make an eventual removal harder. I, and the Home Affairs Committee, have had examples of individuals who had reached their final stage, but five years on nothing had happened. By that point, individuals have become embedded in the community and it is difficult to remove them, so there needs to be much more effective use of existing powers. I accept the Home Secretary's argument that one barrier to removal is re-documentation, but I thought that clause 14 tackled that; so if that is effective, we do not need powers to withdraw benefit, nor the threat to take children into care.
Initially, I had some sympathy with the view that we should take a tough stance on individuals who have clearly destroyed their documents. It is important that those who give genuine asylum seekers a bad name should be highlighted in the way proposed. I understand the Government's desire to send a strong message to the organisers of gangs who encourage individuals to do that. However, these clauses will need very careful examination if we are to ensure that genuine cases are not criminalised. At the moment, the onus is on an individual who arrives without documentation to make the case for why they have not got it. That is the wrong way round. I believe in the assumption of innocence, which means that we should assume that they have a genuine reason for not having it.
Because a punishment will be attached to the non-possession of documents, the Crown Prosecution Service is being drawn into the process. That gives rise to the danger of a twin-track process whereby somebody who arrives here without documentation is subject both to the normal immigration process assessing their case and to a CPS process leading towards possible conviction. Since the two processes will presumably consider the same information, it would be unnecessarily complicated for an individual to have to steer their way through that twin-track process. Furthermore, the situation could arise whereby although it had been decided that they were genuine and could be allowed into this country, the CPS had to continue to pursue the issue of their not having documentation. It would be crazy to have the two processes running at the same time. Will the Minister clarify that?
1628 Does the Minister accept that there are many genuine reasons why individuals might come into this country without documentation? In some countries, such as the Republic of the Congo and Somalia, it is difficult to obtain such documentation in the first place. Alternatively, if someone is fleeing a country because something has suddenly flared up, the last thing on their mind will be to go back home to try to get their passport—indeed, their house may have been burned down, so trying to get that documentation could prove very difficult.
§ Jeremy Corbyn
Is the hon. Gentleman aware that the Geneva convention requires signatory states not to discriminate against individuals because of their lack of documentation or the method by which they arrive?
§ Mr. Oaten
Indeed—the UK signed up to that convention in 1951, and it would be interesting to hear from the Minister how the Government's proposals fall within its legality.
Another of my concerns about arrival without documentation relates to the message that the Government want to send back to the gangmasters and traffickers. I can understand their desire to send that message, but I have not yet heard them explain how it will physically be achieved. Those individuals would need to have a fairly sophisticated understanding of UK asylum law in order to interpret what the Government are planning. Let us also remember that traffickers often place the people they want to come into this country in considerable danger or make threats against their families. That pressure may mean that it would be reasonable for them to argue that they had come into this country without documentation because they were told to destroy it by a gang leader.
We will need to examine these clauses carefully to ensure that nobody who comes here without documentation for genuine reasons ends up in prison. I would also say to the Home Secretary that adding another category of individuals to those who are imprisoned is, first, unacceptable given the number of people who are already in prison and, secondly, unrealistic in financial terms, because the costs involved in keeping somebody in prison would wipe out some of the potential savings. We are in danger of criminalising innocent individuals instead of finding a way of punishing the gangmasters and traffickers who have brought them into this country.
The Leader of the Opposition made a great cause of the issue of children and said that the Home Secretary and the Prime Minister should be ashamed. In this sense, he is right: the Government should be ashamed that they have put themselves in a position whereby they can take such strong criticism from a former right-wing Home Secretary. On the grounds of natural justice, on the way in which children are being used as a political tool, and on the principle of this country remaining a safe haven, Liberal Democrats will vote for the amendment and against the Bill.