Orders of the Day — Immigration Appeals

– in the House of Commons at 7:27 am on 23rd July 1981.

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Photo of Mr Charles Fletcher-Cooke Mr Charles Fletcher-Cooke , Darwen 7:27 am, 23rd July 1981

It is nice to be able to welcome a document from the Home Office. I refer to the review of appeals under the Immigration Act 1961 discussion document which, although coloured blue, is a Green Paper. It was published about Easter. It is a good and liberal document in that it seeks to help those wishing to appeal against immigration decisions by the Home Office. In my experience and that of my colleagues, it has had a generally beneficial effect upon the day-to-day operation of the appeal tribunals and the adjudicators in London, at The net House and elsewhere. Without wishing to appear patronising, I must say that already the tribunals are much more polite and more likely to listen than before.

They are still strict about granting adjournments. They are probably right in that because, although there is sometimes hardship for the immigrant who might be illiterate, and so on, there is no doubt that a minority of appellants abuse the system by using it to delay their inevitable departure. I do not mind the harshness and rigidity on the question of adjournments, although it is ironic that when the Home Office finds difficulty in meeting the time scale—I refer to paragraph 36 of the document—it wants to relax the time limits. If that is to be granted, what is sauce for the goose must be sauce for the gander.

Paragraph 15 suggests that appeals against the refusal to revoke deportation orders should be abolished. That is wrong. There are not many such cases. It is right that those who have had deportation orders made against them, and been deported, should, after a certain number of years, be allowed to appeal from abroad for the revocation of the orders. If a person has a deportation order against him he can never return to Britain, even if circumstances have changed and he has urged his offence by effluxion of time and by behaviour. That is a minor point.

The major point in the document is that the immigrant who finds himself classified as an illegal entrant, and hence subject to removal from Britain, has no right of appeal to the authorities unless he first leaves the country. In practice, in many cases that means no right of appeal at all. Children or youngsters who have been here for many years suddenly find, because they, or more probably their parents, many years ago lacked candour—that is the expression used in the courts—when they first entered Britain, that they are turned out with nowhere to go and without any chance of appeal to the adjudicator, the appeal tribunal or, at least in theory, to the courts.

I say "in theory" because in practice—this is one criticism of the present system—such is the inhumanity and injustice of the position, the courts strain themselves to accept jurisdiction on what are flimsy grounds relating to judicial review, but nobody should blame them, because otherwise the injustice would be terrible.

I have in mind a case that is well known to the Home Office. Four years after two boys had been happily and satisfactorily at school in Britain, they were told to go without any appeal because five years previously their mother, an illiterate woman, when she applied for the relevant entry certificate at a consulate or High Commission abroad, did not disclose that certain circumstances had changed. She was not asked a question, and she did not volunteer the information. She and her children came to Britain. They were happily educated. They are able citizens. Now it is held that under the law they are illegal immigrants. But for the final mercy of the Home Office, in law they would have been turned out to go to a country with which they no longer have any connection, even if they could get there. They would have no real chance of appeal to the immigration tribunal because, under existing law, they could not do that while they remained in Britain.

That contrasts with the overstayer, who may be much less worthy. I refer to the man or woman who comes here on a limited permit for six months but who stays and stays and takes employment contrary to his permit, but who can appeal to the adjudicator and, often, can go further than that, to the appeal tribunal. Such is the pressure upon the bodies concerned, as is well instanced in the document to which I have referred, that it is probable that extensions of time will be granted, amounting sometimes to many years. The contrast is odious.

The plea that I am making, which apparently is sympathetically considered in paragraph 19, is not directed to those who are found to be would-be illegal immigrants when they present themselves at the port or the airport. I think it right that the present conditions should prevail and that they should have to return whence they came. At that stage it is fairly easy for them to do so. They should do so before they are allowed their appeal.

My plea is directed to those who have been admitted, who have been here some time and who, for almost technical reasons, are subsequently discovered to be illegal immigrants. It seems cruel beyond belief that they should have to go home, and that practice should be stopped. It should be stopped because it distorts the purity of the procedural law on the judicial review of public authorities in that the courts, out of mercy, will accept jurisdiction for judicial review when on a proper legal basis they should not do so.

I hope that paragraph 19 can be put into force. The document reveals that the Home Office has an open mind on a delicate branch of its jurisdiction, the treatment of immigrants whose status is doubtful and who wish to have their case heard by an independent judicial authority. In my experience these authorities have become better arid better. They started off being very rough and they are now in their stride. There is much greater confidence in them among their clientele. The Home Office is to be much praised for this liberal attitude, because when the recommendations for mercy or for special treatment are made by the tribunals they are almost always followed by the Home Office. It should act in this rather large and important matter of giving the illegal entrant a chance to appeal before he is sent back if he has been in the country for a substantial period.

Photo of Sir Patrick Mayhew Sir Patrick Mayhew , Royal Tunbridge Wells 7:38 am, 23rd July 1981

With the leave of the House, Mr. Speaker, I thank my hon. and learned Friend the Member for Darwen (Sir C. Fletcher-Cooke) for what he has said about those who staff the appeal tribunals and for his references to the Home Office generally. Not much is said in public by way of complimenting the Home Office, and we are grateful for anything of that nature that is passed our way. I know that what my hon. and learned Friend said about the staffs of the tribunals and those who serve them was well justified and will bring them pleasure. I am grateful to him.

The present appeal arrangements are based in the main on recommendations made by the Wilson committee in its report that was published in 1967. They were introduced in 1969 and subsequently re-enacted. By and large the present system has worked well. I was pleased to hear what my hon. and learned Friend said about the progress that has in his experience been made. But it is under strain as a result of increases in the number of appeals being lodged, and there are delays in hearing cases.

It therefore seemed right that we should take a careful look at how the system was working, with the aim of finding ways in which delays could be reduced and resources used more efficiently. That is why the Government decided to carry out an internal review of the system. There is no doubt that we must continue to have an independent appeals system to review immigration decisions, some of which can have a radical effect on people's lives and expectations. Any such system must be fair and just. At the same time, however, it is right to consider whether the present rights of appeal are working sensibly.

The review's starting point is that the existing rights of appeal set out in part II of the Immigration Act 1971 form a broadly acceptable basis for the future, but the document discusses some modifications which could lead to a fairer and more reasonable system.

We have examined in the document the conflicting arguments for removing a right of appeal from people who come on a short visit. We have put forward ideas on whether it is justifiable that people holding entry clearances who are refused leave to enter should have an automatic right of appeal to the tribunal from an adjudicator's decision, whatever the merits of the case. In other cases appellants have to seek leave to appeal to the tribunal, and it might be reasonable for those with entry clearances to have to seek leave as well.

My hon. and learned Friend raised particularly the question whether there should be a right of appeal at all against the refusal to revoke a deportation order. I note carefully what he has said about the argument and conclusions suggested in paragraph 15. That will be carefully considered.

We have therefore considered on a broad basis ideas that would lead to a reduction in delays, which are the principal cause of strain on the system. However, the document also looks at suggestions for increasing rights of appeal, although those would, of course, place extra work on the appeals system.

We have particular sympathy with the point which my hon. and learned Friend made the major feature of his speech—arguments in principle for a right of appeal before removal of illegal entrants who have lived here for many years. That can give rise to real injustice. There are difficulties in granting a right of appeal, for example in determining what the appropriate time limit would be and in trying to establish, in the absence of documentary evidence, precisely when an illegal entrant arrived. The problems involved in that suggestion are set out in the discussion document and we would greatly welcome views on the matter. I am grateful for my hon. and learned Friend's opinion. He sees from the document, in paragraph 19, that we have much sympathy with what he says. I must emphasise, however, that the Government are determined to deal firmly with illegal entry and other breaches of the immigration laws.

At this stage of the morning, I think I may be forgiven if I take the matter shortly and perhaps I would not be forgiven if I took it otherwise. The issues raised in the discussion document are complex and important. I am much encouraged by what my hon. and learned Friend, with his great experience of these matters, has had to say about its general tone and thrust, and especially by what he said about the Home Office record in dealing with recommendations, as it were, for mercy. I know that the Minister of State, my hon. Friend the Member for Aylesbury (Mr. Raison), takes the greatest personal care over these matters. The Government will take fully into account the comments that we receive from all interested organisations and from hon. Members before coming to any firm conclusions on the important matters with which the document deals.