Borders, Citizenship and Immigration Bill [HL]

My Lords, Amendment 32 is of the same mind as the amendment tabled by the noble Lord, Lord Hylton. We do not provide for those in the UK with outstanding applications under European Community law. On the other hand, as well as refugees, we deal with those granted leave to remain outside the rules, where the Secretary of State decides that there are exceptional reasons—that do not fall within the Immigration Rules—to grant leave to remain. We hope that the Government will include the period spent waiting for successful determination of all these claims as half of the qualifying period. That would be the only way to comply with recommendation 157 in the JCHR report, which has already been cited by my noble friend. I hope that we will get an answer on that this evening and that we will not have to wait for a written reply from the JCHR because, on the face of it, this is perfectly clear. Our Amendment 52 is also in this group. It adds to Clause 46, dealing with the meaning of references to being in breach of the immigration laws. Proposed new subsections make it clear that, during a period of awaiting successful determination of a claim for asylum, or human rights protection, the applicant is not in breach of the immigration laws. One would have thought that this was obvious, considering that it had been determined that such a person had a legitimate reason for entering the UK. Section 11(2) of the NIA Act 2002 says that, ""reference to being ‘in breach of the immigration laws’"," in the British Nationality Act applies to a person who, ""does not have leave to enter or remain"," here. That applies to the refugee while he awaits the outcome of his claim. It is therefore necessary to have these subsections inserted in the definition. They will also make it possible for the waiting time to count towards a later citizenship application. We faintly welcome the Government’s amendments, which allow for discretion to waive the requirement for a person to have qualifying immigration status throughout the qualifying period, where a person’s temporary leave had expired shortly before his or her application for probationary citizenship, or where the person’s probationary citizenship had expired before his or her application for citizenship itself. We also agree that the requirement should be waived for successful asylum seekers, but not only—as the Minister said in Committee—where there is an undue delay in determining a claim, and this delay is not attributable to the claimant. There are still some 200,000 so-called legacy cases of people who have been in the system for several years. On the Government’s own assertion, those cases are not expected to be cleared until July 2011. The time taken to deal with many current cases is also profoundly unsatisfactory. At the end of 2008, there were 10,800 applications awaiting an initial decision, compared to 6,800 a year earlier, in spite of fewer cases arising in 2008. When decisions are finally reached, these are not reliable, as can be seen from the fact that one in four of the appeals determined in the last quarter of 2008 was successful. In those cases where the applicant’s case was judicially found to be valid, he ought not to be penalised and, at the very least, the time between refusal of the application and the determination of the appeal should count towards the qualifying period. The amendment says that the whole time spent awaiting determination of the claim should be treated as falling within that qualifying period. Since the general aim of the Government’s naturalisation policy is to promote greater integration, as the noble Lord, Lord Brett, said in Committee, the logical and right solution would be to treat the whole of the time from first application to successful determination as part of the qualifying period. This, again, is referred to in the JCHR report as being part of the UNHCR’s convention, to which we are signatories. In the unlikely event of reaching the target of six months for the conclusion of new asylum claims by the end of 2011, it would still be perverse to make refugees escaping persecution wait an average of half a year longer than ordinary migrants to become citizens. We hope to persuade the Government to give the matter further consideration.