My Lords, this amendment returns to the question of the consequences of a decision by the Secretary of State to revoke a person's indefinite leave to enter or remain in circumstances where that person either,
"is liable to deportation, but cannot be deported for legal reasons" or,
"the leave was obtained by deception . . . but the person cannot be removed for legal or practical reasons" or where the person has voluntarily given up his refugee status or acquired the nationality of another country.
Throughout the debates on this clause in Committee and on Report, your Lordships have, of course, had answers from the noble Lord, Lord Filkin, but those answers have, necessarily, prompted still more questions. I mean no criticism of the noble Lord when I say that we have still not yet got to the root of the legal consequences of this clause.
In Committee on 17th July the noble Lord, Lord Filkin, stated that,
"once indefinite leave has been revoked it is likely to be replaced with short periods of limited leave—for example, six months at a time".—[Official Report, 17/7/02; col. 1330.]
At Report stage on 10th October, the noble Lord, Lord Filkin, clarified that statement by saying:
"The noble Lord, Lord Kingsland, asked what is the status of a person once his leave has been removed, and whether indefinite leave would always be replaced with short periods of leave. The answer is no, it would not always be replaced with short periods of leave. There could be circumstances, for example, where the Government and the Home Secretary judge that it was likely that the impediments to the return of the person to his country of origin were likely to change in the near future, and, therefore, they might not be granted a further period of leave in the expectation that their return to their country of origin would be possible . . . In Committee I referred to the tautological situation—I still believe that there is no better word to describe it—that if someone has no leave they effectively have no status. Someone without status under the immigration legislation would be expected to leave when it was possible".—[Official Report, 10/10/02; col. 502.]
I believe that the Minister took noble Lords a little further down the road with that statement. However, I suggest to him that, although he said that such a person would be expected to leave the country as soon as possible, where leave is revoked under subsections (1) and (2) of the clause the position will already be that they cannot be removed for "legal" or "practical" reasons.
I shall concentrate on the status of such a person. A person whose indefinite leave has been revoked but who has not been given a further period of limited leave has—I use the Minister's words—"no status" under the Immigration Acts. Is it not something of an indictment of the Government—indeed, perhaps even of Parliament—that despite putting on to the statute book immigration legislation of such length, detail and complexity, we are faced with a situation in which certain people may have "no status" whatever under that legislation? Again, I ask the Minister: will such a person be in this country illegally and therefore committing an offence under the Immigration Acts as a result of that lack of status?
I do not dispute that, if someone has obtained indefinite leave to remain by deception, the Government should have the right to remove him. I merely ask: what is the legal position of such a person once leave has been removed, and how will the Secretary of State's policy of granting limited leave in some but not all circumstances be applied?
We are at Third Reading and this is, I submit, a mild amendment. I should allow, but not require, the Secretary of State to issue guidance to which he would have to have regard when exercising the powers available to him under the clause.
In conclusion, it is my hope that such guidance might contain the answers to some of the questions posed in your Lordships' House. For example, what would be the legal status of such a person once their indefinite leave to remain had been removed? What criteria will the Secretary of State use when considering the grant of limited periods of leave in place of indefinite leave?
I hope that the Minister will be able to accept the amendment or, at the very least, offer some further clarification. I beg to move.
My Lords, the noble Lord, Lord Kingsland, asked some extremely pertinent questions, to which answers are necessary. I hope that they will be forthcoming, in view of the fact that we canvassed these matters pretty thoroughly at earlier stages. The Government have had plenty of time to prepare answers for this evening.
In the hope that those answers will contain material responses to points that we have already raised, I shall remind the Minister of some of the assurances that we have sought and which we should like to get on the record this evening. First, we want the Government to apply the provisions of Article 1(C) of the refugee convention and the case law of the UK courts in interpreting Article 1(C) when deciding whether a person ceases to be a refugee and prior to seeking to exercise their powers under subsection (3).
Secondly, we want an undertaking that the Government will not use the powers under subsection (3) to penalise those who wish to make exploratory visits to their country of nationality in order to determine whether it is safe for them to make a permanent return. I dealt with that point fairly thoroughly, giving the example of Bahrain where people were put in a situation of total uncertainty because they could not obtain an answer about how they would be treated if they returned.
Thirdly, we seek an assurance about not penalising those who acquire national passports in order to make such visits. Refugee travel documents are always issued valid for all countries except the country of origin. Therefore, until such time as a refugee acquires British citizenship, the only way he can make an exploratory visit to his original home is precisely by,
"availing himself of the protection of his country of nationality", and acquiring a passport of that nationality.
Fourthly, we seek an assurance that the Government will not exercise these powers to penalise refugees who acquire some other nationality but that they will treat them in exactly the same way as any other foreign national resident in the United Kingdom.
Finally, we seek an undertaking that the Government will not use the powers under this clause to revoke the status of family members of refugees where they have not followed the same course of action as the refugee which led to the revocation.
My Lords, this amendment gives me the opportunity to ask again the questions I was trying to raise on government Amendment No. 62. In particular, will the people who are caught in this type of limbo, which may be extended by a six-month or three-month period or by a considerable number of times, be able to work in this country? Will they obtain a national insurance number? Will they have access to the National Health Service, and will they be entitled to education and training, both for themselves and their families?
My Lords, I am not sure that I shall be terribly helpful in my response. I rather regret that because I suspect that noble Lords will not be very happy with what I say. I believed that, by tabling the amendment, essentially the noble Lord, Lord Kingsland, was raising the issue of what the guidance would cover. I can certainly help the noble Lord in that respect.
The guidance will cover the use of the powers in this clause and, as with existing instructions, it will be publicly available. It will cover a fairly wide range of matters, including some of the points raised by the noble Lord this evening and on previous occasions. It will cover, for example, the period of leave that a person will be granted; when his indefinite leave is to be revoked; and the conditions that would attach to his stay, such as his access to work and benefits—an issue raised by the noble Lord, Lord Hylton. It will also cover the very limited circumstances in which a person whose indefinite leave is revoked will be granted no leave and the conditions attached to the stay of such a person.
I know that the noble Lord has previously asked how long a person whose indefinite leave has been revoked will have to remain on limited leave before becoming eligible for indefinite leave. Again, I cannot be specific on that point this evening but it will be covered in the guidance. The period may well vary, depending on what a person has done to cause his original indefinite leave to be revoked.
I was asked about the status of those for whom leave to stay had not been granted and whether such people would be here illegally. They would be here without any leave. No action would be taken against such a person. I repeat the point that people will almost always be granted a period of leave. Only if removal was not possible shortly would we consider not granting leave. Therefore, in those circumstances I believe that we can be helpful.
My Lords, before the noble Lord leaves that point, will he tell the House whether such a person would be subject to restrictions on the place of residence and subject to requirements to report?
My Lords, it is inevitable that some conditions would be applied, but I do not believe that we would seek to exercise them unreasonably. The noble Lord, Lord Avebury, also raised another point about Article 1(C). That does not apply to refugees who obtain status under the 1951 refugee convention. But we would not remove any person if that was contrary to our international obligations.
We accept that we have to act reasonably. We are not seeking to penalise people in this situation and we would certainly not penalise those who obtain status in another country. But we believe that in some circumstances it would be reasonable to revoke refugee status which was no longer appropriate. I accept that I will not have answered all the points raised in the debate. Many of these issues will have to be carefully considered and set out in more detailed guidance which will be provided later.
My Lords, I thank the Minister for his reply. I am sure he will be relieved to know that I shall not seek to test the opinion of the House. Nevertheless, perhaps I may assist him in reflecting on what guidance would be appropriate both by underlining one point made by the noble Lord, Lord Avebury, and a point which I made in my opening remarks.
The noble Lord, Lord Avebury, rightly pressed the Minister on what conditions would be applied to someone who was here illegally but who could not, because of our international obligations, be removed. I believe that the Minister said that in all likelihood there would be conditions. My reflection on his response is to ask what would be the legal authority for issuing those conditions. Perhaps that matter can be dealt with in guidance. If restrictions are to be imposed on a citizen, the rule of law requires those restrictions to relate to legislation which has been properly passed by your Lordships' House either in final form or in some form of appropriately-made delegated legislation.
My other point concerns the inter-relationship between this legislation and the existing Immigration Act. Will a person who is here illegally but cannot be removed nevertheless be committing an offence under the Immigration Act? Is that a matter to which the Government have given any attention? If not, will they give some attention to it in drafting guidance?
My Lords, if that is an issue, it stands to be dealt with in guidance. As to the first point raised by the noble Lord, conditions and so forth will be set out in guidance, which is only right.
I return to a point made by the noble Lord, Lord Avebury, concerning restriction on residence and reporting. There will be no restriction but, because of a lack of status, there will be no permission to work or entitlement to public funds. I hope that that is clear. It answers his question but is probably not an answer that he wants to hear. That is as we see it, and we want to make that plain.
moved Amendments Nos. 72 and 73:
Page 45, line 29, after "order" insert "may not be"
Page 45, line 29, leave out "shall not have effect"
On Question, amendments agreed to.
Clause 78 [Removal of asylum-seeker to third country]:
moved Amendments Nos. 74 to 79:
Page 46, line 21, leave out "(2)(a)" and insert "(2)"
Page 46, line 22, after "instituted" insert "or could institute"
Page 46, line 24, leave out from "a" to end of line 25 and insert "human rights claim (within the meaning of section 109)"
Page 46, line 29, after "Act)" insert "or can no longer be brought (ignoring any possibility of an appeal out of time with permission)"
Page 46, line 31, leave out "claim referred to in subsection (3)(b) above" and insert "human rights claim"
Page 46, line 36, leave out subsection (2).
On Question, amendments agreed to.
moved Amendment No. 80:
After Clause 78, insert the following new clause—
On Question, amendment agreed to.
Clause 81 [Appeal: asylum claim]:
My Lords, Amendments Nos. 81 to 84 extend the right of appeal under Clause 81 to all asylum seekers granted leave to enter or remain for more than a year. It will no longer matter whether the leave is given all at once or in a series of shorter grants. There will be only one right of appeal unless there is a change of circumstances and a fresh application for asylum is made. The Government are particularly grateful to the noble Lord, Lord Avebury, for his help with this issue, which we have debated previously.
Clause 81 provides that a person with exceptional leave may appeal against an asylum refusal only on asylum grounds. Amendment No. 85 spells out, for the sake of clarity, that "asylum grounds" are the same grounds specified in the general rights of appeal in Clause 82. I clarify that point by slipping in Amendment No. 85.
Amendment No. 86 ensures that the hearing of an appeal against removal focuses on the issue of removal.
Amendment No. 87 is there for our beauty in this legislation; it is described in my notes as being entirely cosmetic.
Amendments Nos. 95 and 96 replace the term "request" with the term "claim", which is more familiar apparently in the language of immigration law.
Amendment No. 97 applies Clause 94 to appeals heard by the Special Immigration Appeals Commission, so that all immigration appeals can be treated in the same way.
Amendment No. 104 imports the definitions of "asylum claim" and "human rights claim" from Clause 109 into Clause 111. The minor modifications reflect the fact that Clause 111 will have effect only between Royal Assent and the implementation of Part 5.
It is not essential for me to go over the other minor matters dealt with in these amendments. I beg to move.
My Lords, I thank the Minister most warmly for Amendment No. 84 which deals with the point we made about cumulative periods of leave to enter or remain adding up to more than a year. This amendment exactly covers the ground that we hoped it would. We are grateful to the Government for having done that.
moved Amendments Nos. 82 to 84:
Page 48, line 26, leave out "is" and insert "has been"
Page 48, line 27, leave out "is" and insert "has been"
Page 48, line 28, at end insert "(or for periods exceeding one year in aggregate)"
On Question, amendments agreed to.
Clause 82 [Grounds of appeal]:
moved Amendment No. 85:
Page 49, line 10, at end insert—
"( ) An appeal under section 81 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention."
On Question, amendment agreed to.
Clause 84 [Determination of appeal]:
moved Amendment No. 86:
Page 49, line 42, at end insert—
"( ) For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision."
On Question, amendment agreed to.
Clause 89 [Student]:
My Lords, in moving Amendment No. 88, I shall speak also to Amendments Nos. 94 and 103A. This group of amendments returns to the issue of non-suspensive appeals in Clause 92 of the Bill, which has been debated at considerable length, both in Committee and on Report.
I shall not repeat at Third Reading the detailed points that I made on previous occasions. Briefly, the position is that the Government wish to oblige those whose asylum claims are certified by the Secretary of State as being clearly unfounded to exercise their right of appeal to an independent adjudicator from abroad after they have been removed from the United Kingdom.
The amendments standing in my name and that of my noble friend seek to ensure that when a person is removed from the United Kingdom before he has had the opportunity to exercise his appeal rights, that removal is to a country which has been certified as safe, and from which he will have a reasonable opportunity to exercise his rights.
If it is proposed to remove the person to an unsafe country, that person would have the right to bring an appeal from within the United Kingdom.
The amendments are similar to those that I put before the House last week on Report. However, they take into account the concerns expressed by the noble and learned Lord, Lord Falconer, at col. 1517 of Hansard, that the human rights test laid down in subsection (5) of the clause was better than the test in my earlier amendments. Our amendment now provides for the Government's test to be applied.
Proposed new subsection (12) also contains a slight change from the amendments that I tabled on Report. It would ensure that where a certificate was issued by the Secretary of State the person would have only 28 days in which to bring an appeal from within the United Kingdom. During that time he could be removed only to a country which had been certified as safe under proposed new subsection (13). After 28 days had elapsed he could be removed to any country if he had chosen not to exercise his appeal rights.
The noble and learned Lord, Lord Archer, and the noble Lords, Lord Goodhart and Lord Lester, have also tabled amendments to the clause in respect of appeal rights after certification. They are broadly similar in providing a right of appeal to either the adjudicator or the Immigration Appeal Tribunal against the Secretary of State's certificate.
As I pointed out on Report, even under the Government's proposals, such a person could bring full judicial review proceedings, not the limited statutory review proceedings provided for in Clause 99, against the decision to issue the certificate. I was surprised to read the amendment in the names of the noble Lords, Lord Goodhart and Lord Lester, which would limit judicial review by applying the same statutory review procedure proposed by the Government in Clause 99 once the new right of appeal to the Immigration Appeal Tribunal against certification under Clause 92 proposed by their amendment had been exhausted. I have had the advantage of discussing the matter with the noble Lord, Lord Lester, who assures me that my judgment in this case is not as sound as I had thought.
On Report, the noble and learned Lord, Lord Falconer, confirmed that full judicial review is available against the issue of a certificate under Clause 92 when he said:
"For clearly unfounded certificates, the presence of judicial review provides an effective remedy against any error by the Secretary of State or the IND".—[Official Report, 24/10/02; col. 1517.].
I simply ask whether the noble Lords, Lord Goodhart and Lord Lester, think that an appellant would be in a better position if he was able to bring full judicial review proceedings against the certificate—involving a determination on the papers, then an oral permission hearing by a High Court judge, followed by a full oral hearing of the merits of the claim as he could under the clause as drafted—rather than having his appeal refused by the IAT and then having only the limited right of statutory review of that decision on the papers, as the noble Lords propose in their amendment.
I recognise that appeal and review are different. None the less, with full judicial review, there would be a remedy in cases where the Home Office had clearly and unreasonably got things wrong. Moreover, under my amendments, the person would anyway be able to exercise his right of appeal to an adjudicator on the merits of his claim from within the United Kingdom if it were proposed to remove him to an unsafe country.
I embarked trepidatiously on that analysis because I have great admiration for the judgment of the noble Lords, Lord Goodhart and Lord Lester. They may well come back at me with a testing and penetrating analysis that leaves my position in a state of disintegration. We shall see.
As I said on Report, this is a difficult balancing act. We recognise that the Government want to speed up the system and we support that. However, we also want to ensure that people have a reasonable opportunity to exercise their appeal rights—rights that even the Government do not propose to remove—and are not denied the opportunity to do so by being removed to countries that are unsafe and where any mistakes made by the Home Office cannot be rectified. Our amendment is intended to implement both aims.
"there is no question that returning a person to France, Denmark or any EU country, for example, is anything but a perfectly legitimate act for the British state. It runs no risk of compromising that person's life or liberty . . . I am determined that we should give the Home Secretary the support that he deserves in regard to those provisions that are right and which make it possible to imagine that bilateral agreements will come back into play. However, I intend to preserve our determination to avoid, if we can, compromising improperly the safety of individuals through those subsections that pose a threat to their safety".—[Official Report, Commons 11/6/02; col. 805.]
I commend the amendments to your Lordships. I beg to move.
My Lords, I want to speak to Amendment No. 91 and to read from a letter from the noble and learned Lord, Lord Falconer, to my noble friend Lord Lester of Herne Hill. I understand that it is not a confidential letter—it is not marked confidential. I see that the noble and learned Lord agrees. One paragraph of that letter outlines why we object to the line that the Government are taking. It says:
"Clause 92 is designed to deal with those applicants who make an application for asylum simply as a means for remaining in the United Kingdom when they have no basis to enter or remain here. We do not think that it is acceptable that such applicants should be able to remain in this country by making an abusive application for asylum. It is for that reason that, where we consider an application to be clearly unfounded, the right of appeal should only be exercised outside of the United Kingdom".
The crucial point in that paragraph is who is the "we" who consider that the application is clearly unfounded. It is not the Home Secretary. Nobody suggests that it is desirable or practicable that the Home Secretary in person should take a decision of that kind. It is a decision that is taken by a civil servant within the Home Office. It is an administrative decision, probably taken by a busy official who handles many cases, with little time to consider the facts of individual cases. I do not suggest that he ignores them. I am sure that the official responsible acts properly and with all the skill that he or she can bring to the work, but undoubtedly such a person is likely to be under severe pressure. The official makes a decision—not a judgment—and he or she is not required to support that decision by reasoning.
The consequence of a wrong decision is that the asylum seeker will be sent back before his appeal can be heard to a country where he may face persecution or worse. In view of the consequences, we believe that plainly there should be a review of the decision taken by the Home Office civil servant and that that review should be a review of the merits and of the law undertaken by a person holding judicial office. That review must also be completed before the asylum seeker can be returned to his country of origin.
There is, of course, a right to apply for judicial review which will remain, even if this amendment is rejected. However, we believe that it is better to have a right of appeal to a tribunal, whether it be a tribunal in the sense of an individual adjudicator or in the sense of the Immigration Appeal Tribunal.
A judicial review is an unsatisfactory method of deciding an issue such as this. It is concerned only with the law which, as we know by extension, includes a conclusion that a decision taken is irrational. But the test of irrationality is a very high one and it is difficult. There is no consideration of whether, although not strictly irrational, the decision taken by the civil servant is one that is properly justified on the facts of the case. We believe that in a case of this kind, given that the civil servant is not a judicial officer, it is necessary, indeed essential, to have at least one judicial decision where not only the law but also the facts can be considered. That is not a possibility if the only remedy is judicial review.
There are, of course, other considerations. The Administrative Court—that part of the High Court that considers judicial review—is, as we all know, already overloaded with asylum cases. That load will further increase if judicial review is the only recourse from a decision by a Home Office official that a claim is clearly unfounded. Surely it is in everyone's interest to provide for an appeal to a lower body; that is, an adjudicator, or the Immigration Appeal Tribunal. It is in the interest of the claimant, because it will enable a decision to be taken more quickly and the period of limbo, which must be a strain for any claimant, will be ended more quickly. This will be an advantage to the judicial system because it will mean that such decisions are taken lower down the scale, closer to the claimant, and not by the Administrative Court in London.
Even if there is a possibility of review of the decisions taken by the adjudicator or the IAT, that would still reduce the number of applications for judicial review, because in many cases the claimant, or his advisers, will be satisfied with the decision taken below and will be convinced that there is no prospect of a successful application for judicial review. In addition, in cases where judicial review is sought, the process will be shortened if the Administrative Court, or a High Court judge, is considering a reasoned decision of an inferior tribunal. I hope that the noble Lord, Lord Kingsland, will agree that there are real practical advantages in what we propose, as against the status quo that would apply if the clause is passed unamended leaving judicial review as the only solution.
The question was also raised as to why we have introduced the idea of the statutory review as opposed to the full-scale judicial review. I refer to the statutory review, which is similar to that proposed by the Government in Clause 99. In a sense, this amendment was put forward as a compromise in a form that we hoped the Government would be prepared to consider seriously. That is why we introduced into it the idea of the statutory review that the Government propose in Clause 99. It would be a quicker, simpler, and cheaper version than a full-scale judicial review.
I understand that the noble and learned Lord, Lord Archer of Sandwell, does not intend to move Amendment No. 89. Had he been willing to do so, I make no bones about the fact that we would have preferred his amendment in many ways. However, as he has decided not to move his amendment, we have put forward an amendment providing for statutory review.
I turn briefly to the other amendments in the group. Amendment No. 88, moved by the noble Lord, Lord Kingsland, would, undoubtedly, make a considerable improvement to the Bill. However, it is not fully satisfactory, as it leaves some circumstances in which immediate removal is possible and in which there is no possibility of an in-country appeal. That arises in cases of removal to a "white list" country. We discussed the idea of a "white list", which we strongly deplore, on Report, and we are unhappy that it should come back again through Amendment No. 88. We are also particularly unhappy with the idea, as suggested in Amendment No. 88, that the Home Secretary should be able to add countries to the "white list" through the negative procedure. Under the Government's proposals for a "white list", the affirmative resolution procedure must be used.
We do not regard Amendment No. 93, tabled by the noble Lord, Lord Clinton-Davis, which proposes yearly renewals of the clause, as a satisfactory solution; nor do we regard the Government's amendment on monitoring—Amendment No. 103—as remotely adequate.
My Lords, I am grateful to the noble Lord for that clarification. I accept that his amendment is better than nothing, and I am grateful for the knowledge that he puts it forward not as his preferred choice but as a compromise.
The drafting of our amendment is not perfect; it probably requires some improvement and alteration. It would give a right to appeal directly to the Immigration Appeal Tribunal against a decision to certify a claim as clearly unfounded, whereas it might be better for the case to go to an adjudicator. However, what we propose meets what we regard as the minimum necessary standard of judicial control over decisions to return the asylum seeker to his country of origin, pending appeal. The refusal of the right to appeal against a decision that a claim is clearly unfounded is one of the most objectionable of the numerous objectionable provisions of the Bill. Amendment No. 91 would greatly improve the Bill.
My Lords, there are few clauses in few Bills that have been subjected to more debate in and out of Parliament than the clause that is now Clause 92. For that reason, and because we have been reminded of the principal arguments by the noble Lords, Lord Kingsland and Lord Goodhart, it would now be superfluous for me to repeat them. However, I hope that the noble Lord, Lord Kingsland, will forgive me if I say that, as soon as I get home, I shall check whether the word "trepidatiously" appears in the New Oxford English Dictionary.
How do we address the problem that legitimately exercises the Government, without flagrant unfairness to those whose claims to asylum may or may not transpire to be well founded? Of course people sometimes claim asylum when their claim is unfounded. Of course that takes up time and it leads to delays in the consideration of other claims. Of course we should look for ways of expediting the decisions. But what we are seeking is swifter justice, not methods of perpetrating injustice quickly.
We have all attempted to make suggestions to reconcile the two objectives. One is the subject of my Amendment No. 89. I confess that I was a little startled when the noble Lord, Lord Goodhart, said that while I had already expressed a preference for his amendment he would express a preference for mine. I seem to remember love stories that I read in the papers many years ago which took a similar course. However, it occurred to me unlikely that my Amendment No. 89 would attract a great deal of support in your Lordships' House.
I recognise that my Amendment No. 90 would require a determination by an adjudicator. I have seen many adjudicators at work and I strongly endorse the tributes that were paid to them at earlier stages of your Lordships' debates, but they are hard-pressed to cope with the volume of work and I suspect that to appoint more adjudicators would risk diluting the pool of suitable talent. My amendment would not wholly resolve that problem.
The amendment moved by the noble Lord, Lord Kingsland, relates principally to judicial review. I hope he will forgive me if I say that I rather agree with the noble Lord, Lord Goodhart, that judicial review is not a complete answer and is certainly not a substitute for appeal, for the reasons he gave. If he would care to read some of the annual reports of the Council on Tribunals some years ago, he will see us addressing that question again and again.
The amendment set down by my noble friends on the Front Bench shares the defect which I think can be levelled at the amendment set down by my noble friend Lord Clinton-Davis and I hope that they will both forgive me. It would be ungracious not to acknowledge the efforts they have all made to find a way of reconciling our differences. In each case the amendment is better than nothing, but it would simply enable us to survey the battlefield half way through the slaughter. Meanwhile, in many individual cases the injustice may well have run its course. The whole problem arises because it is too late after someone has been martyred to seek to repair the damage by raising a memorial. I hope that my noble friend Lord Clinton-Davis, who has kindly kept me in the picture throughout our debates, will forgive me if I say that for that reason I cannot find it in my heart to support his amendment with greater enthusiasm than the amendment from my noble friends on the Front Bench.
Amendment No. 91, addressed by the noble Lord, Lord Goodhart, would provide a safeguard. It is not an infallible one and not as complete as a fully argued appeal—an appeal to an adjudicator would attract all the other consequences which would follow from that—but it would provide an opportunity for the IAT to form a judgment as to whether the claim is clearly unfounded. As the noble Lord, Lord Goodhart, pointed out, the next stage, to a judge who would decide the case on the papers, is already in the Bill. Accordingly, I do not propose to press my amendments in this group to a Division, but if the noble Lord seeks the opinion of the House on his amendments, it would be my intention to support him in the Lobby.
It gives me no pleasure to disagree with a government which I support and whose problems I understand. I add only this: I ventured to say on Report that future generations will marvel that this debate ever had to take place. What a pity that we cannot now read the history books of the future; those which will be written two generations from now. Nor could those who participated in the debates on the Reform Bill 1832. But if those books include an appendix setting out the lists of who voted how in the course of this debate, I am relieved to reflect that it will disclose that I voted to amend the Bill.
My Lords, I speak with diffidence to Amendment No. 93. Before I do so, I should like to follow on from the intervention I made during the speech of the noble Lord, Lord Goodhart. I prefer Amendments Nos. 89 and 90—I do not mind which one—but I am a realist; I recognise that the Government may win. It is for that reason that I have tabled Amendment No. 93. I stress that it is only if those amendments are not carried that I would wish to put forward my own amendment.
My amendment is a compromise. It is not one that I would support ordinarily, but you have to be something of a pragmatist in this place. I am therefore suggesting that if the other amendments are not carried, my compromise amendment should be applicable.
The first subsection of my amendment would enable the situation envisaged by the Government to take effect for a period of 12 months and would require the positive approval of both Houses by affirmative resolution. If such approval was not forthcoming, we would revert to the existing situation. I do not turn to my amendment immediately. Fortunately, it is due to be taken after the vote on the amendments of which both my noble and learned friend and I approve.
Like my noble and learned friend, I think that the Minister's amendment, Amendment No. 103, is better than nothing. It is not as good as my noble and learned friend would like and not as good as my amendment, but it is better than nothing. We must face up to the fact that swifter justice, which I also support, is not the same as something which is basically unjust. What the Government are proposing is basically unjust and the amendment does not improve that position very much. We have the right to consider the situation after the person appointed has made a report to the Secretary of State in about 12 months' time, but we do not have the right to amend. We have no rights whatever other than debate. In my view, that is an unsatisfactory position.
I am bitterly upset that the Government of which, like my noble and learned friend, I am a loyal supporter, have put forward this proposition. I do not like it. For that reason I shall support the amendments to which my noble and learned friend Lord Archer referred. If those amendments are not carried, I shall revert to my own Amendment No. 93.
My Lords, it is difficult when returning to this matter at Third Reading to avoid repeating some of the arguments that have been put at previous stages of our deliberations. Although we should try to avoid such repetition, the issues at stake are sometimes so profound and so fundamental that it is not necessary to apologise if one re-emphasises some of the arguments previously put.
Yet again, as will become obvious from my remarks. I am the only non-lawyer to have taken part in the debate thus far. I am a layman; I see myself as an ordinary citizen who looks to the protection of the law. Perhaps I may take up a couple of specific points.
Reference was made in our previous deliberations to the availability of judicial review. This has been offered as a reassurance, something that is available, if need be, to a person who feels that matters have fundamentally gone wrong. I should like to receive from my noble friend on the Front Bench a specific assurance that all those, without exception, to whom a judicial review might apply will be specifically made aware of the existence of this opportunity, and of how it might be pursued—and of the fact that it is available not merely to a few who may happen to know of this channel. From the point of view of an ordinary citizen and not a lawyer, I believe that to be crucial. It is not just a matter of the existence of the law; it is access to the law that matters, and knowledge of what is available under the law. I believe that this House needs a specific assurance that there will be a proactive approach towards informing people about their rights in this context.
It is always dangerous to take up anything that the noble Lord, Lord Kingsland, says. One listens to him with great respect in terms of the intellectual and legal power that he assembles in all his remarks in this House. However, I associate myself with those who express disappointment that in regard to the white list he has reintroduced the concept of a negative approach rather than affirmative resolution. White lists should not be there. But if they are to be there, any proposed change to the white list should have to be fully argued by the Government.
My main point, as a layman, is this. What disturbs me profoundly about the whole of this part of the Bill is, first, that we are limiting in this context what has been fundamental to the operation of the law generally; namely, the right of appeal. I have heard no argument that even begins to suggest that we are not limiting that right in this context. That is a very serious step to take in a country that believes that it is protecting itself partly because it is a country in which the rule of law applies and to which the rule of law is fundamental.
The second thing that disturbs me is what this does to asylum. I am aware that I repeat myself and I do not apologise for doing so. Asylum is of such significance; it involves the possibility of life or death and the concept of persecution. It is almost unbelievable to see in the context of asylum the removal of what operates elsewhere in the law by a government who, like the noble and learned Lord, Lord Archer, I am proud to support on so many fronts. It is deeply upsetting. If we are really committed to asylum, and positively committed to its principles, rather than simply believing that it is an unfortunate necessity forced upon us by the international laws and conventions that we have inherited, our commitment must be to see that no stone is left unturned in ensuring that those entitled to asylum can get it.
I know that the phrase, "with a heavy heart", can be used easily. I am used to noble friends saying that they are walking through the Lobbies to vote on this Bill with a heavy heart. But, for the reasons I have given, it is with a heavy heart that I will be unable to walk through the Lobby with the Government. One of my happiest and proudest moments in this House was when I had the privilege of introducing my noble and learned friend Lord Archer to it as a Member. This evening I am glad I did; I will have no doubts whatever in demonstrating that I am with him and that I made the right decision in sponsoring him as a Member of this House.
My Lords, what the noble Lord, Lord Judd, said is very important. I hope that he will get the assurance he seeks from the Government.
In considering this group of amendments, we must remember what happened in 1996 and 1999, when survivors of torture were exempted from accelerated procedures. In that context, I am grateful to the Immigration Law Practitioners' Association, which detailed three cases that had recently been certified as manifestly unfounded. The first involved a man from Zimbabwe who fled after his parents were beaten and stabbed to death. On appeal he was granted full refugee status. The second was that of a Roma woman from the Slovak Republic. Her brother-in-law was murdered by skinheads, her house was burnt down, and she was attacked by skinheads. The adjudicator found that there was a real risk that she would be subjected to torture or inhuman or degrading treatment. In the third case, the father of a man from Cameroon had disappeared, the family home was burnt, and he was arrested and detained for three months, during which time he was systematically tortured. He, too, eventually achieved full refugee status.
I conclude that the Government's amendment is less satisfactory than Amendments Nos. 90 and 91, one of which I hope will be successful.
My Lords, I was surprised by the muted response of Ministers on Report to the case studies presented by the noble and learned Lord, Lord Archer of Sandwell, which were similar to those just mentioned by the noble Lord, Lord Hylton. Those case studies showed that Home Office officials have made the most appalling findings in certifying cases as manifestly unfounded when in practice they were manifestly well founded. But for the appeal process to an adjudicator, each of those cases would have resulted in a human tragedy. In view of that, I would have thought that a humane and caring government would have wished to introduce new safeguards to ensure that such potential miscarriages of justice would never occur in the future. Instead, the Government are doing the opposite and making it even more certain that miscarriages of justice will occur. The aim of Amendments Nos. 88 to 94 is to prevent such miscarriages of justice and I support them.
My Lords, as another non-lawyer, I also support Amendments Nos. 89, 90 or 91, because they seem to me to restore the minimum standard of justice to this part of the asylum process.
"there would now be no right of appeal at all to an adjudicator . . . the removal of any right of appeal results in there being inadequate protection for the human rights of claimants".
That is coolly put, but I would like to add that as an official, and therefore not in a judicial capacity, in the past from time to time I exercised powers delegated to me by the Secretary of State to make determinations within the framework of law which affected, in my case, people's livelihoods. It is from that experience that I conclude that to exercise this kind of power over a matter of fundamental rights like asylum, without any possibility of appeal to a judicial process, is wholly inappropriate for an official, and in fact falls short of our traditions of justice. The amendments put a just process back into the Bill.
My Lords, following the remarks of the noble Lord, Lord Judd, I should also like to speak about the issues, as someone else who is not a lawyer, but represents the interests of grace and faith. It is surely manifestly clear from the number of amendments tabled to the clause from all round the House that it is widely perceived to represent an injustice in the Bill. We look to the Minister to give us some encouragement that the Government are going to respond to those concerns widely.
No one can sensibly maintain that asylum seekers will not be seriously disadvantaged by removal of the right to appeal from within the United Kingdom. On the contrary, any out of country system of appeal must be meaningless. It cannot have any substance. How can an asylum seeker make his case to the adjudicator without the opportunity to give oral evidence or necessarily to consult lawyers in this country face to face about his needs? How can an asylum seeker make his case from a country where he fears, or may even already be suffering, persecution?
Noble Lords have spoken eloquently tonight and on other occasions about the distaste that we must feel when the executive determines appeal rights rather than an independent judiciary, whose constitutional role is to scrutinise the decisions of government. Surely the clause is not satisfactory. Whichever route we determine to go down tonight, this House must put down a marker that further work needs to be done on this before Parliament assigns it to the statute book. We on these Benches will support the amendments as they come in the hope that the Government will respond to these widespread concerns about the justice of Clause 92.
My Lords, we have spoken many times about these important issues. I shall not rehearse all of the arguments, but seek to summarise the position. I shall speak first to Amendment No. 103 which is the government amendment in this group.
The Government take the view that some asylum and human rights claims are so lacking in substance that they need to be dealt with as quickly as possible and the applicants removed from the United Kingdom as soon as their claim has been identified as clearly without merit. I gave an example of an actual case in which the person based his claim on the fact that his family had told him to apply. Despite the availability of medical and legal assistance, he was not able to elaborate on his application. Such claims should not go through the full process. We consider it fair and sensible to deny an in-country right of appeal in such cases. I have made it clear many times that legal redress before removal is not ruled out. It will remain open to an applicant to seek judicial review if he or she considers that there was a flaw in the decision-making process that led to the certificate being issued.
The noble Lord, Lord Lester of Herne Hill, drew our attention to a recently decided case of the House of Lords to the effect that judicial review provides "an effective remedy" to ensure that the law is upheld in these matters. The noble Lord also drew our attention to the fact that the case dealt specifically with a certificate of a manifestly unfounded claim. Therefore, referring specifically to a similar type of procedure, the House of Lords has concluded that it is an effective remedy. Consequently, the House of Lords sitting in a judicial capacity disagrees with the view held by some noble Lords that there is no effective legal monitoring or control.
We are committed to having in place clear and robust procedures to ensure that the quality of decision-making is high. I fully accept that the consequences of issuing a certificate are significant. We must have in place arrangements that seek to ensure that a claim has been properly considered before the decision to certify is taken.
As I have said before, we are introducing a "two pairs of eyes" system whereby each case is considered by a caseworker and then by a senior caseworker. All those involved in taking a decision on the claim will be specially trained on certification issues. Such training will, of course, be in addition to the extensive training in general asylum matters that all IND caseworkers receive. Cases will be referred where necessary to government lawyers further to ensure the quality of the decisions being taken.
Alongside all these measures we are also establishing, on a statutory basis, an independent panel of experts to comment on the country information produced by the IND. The existing country reports are held in high regard internationally, and I am sure that their status will be further enhanced by the creation of this panel. As accurate, up-to-date country information is a central factor in assessing asylum and human rights claims, not least in assessing potentially clearly unfounded claims, the bolstering of our country information reports is further evidence of our focus on quality.
These are all concrete measures designed to show our commitment to a robust and effective decision-making process. As I have already accepted, mistakes might still be made. Judicial review, however, is there as a fall back. My noble friend Lord Judd asked for an assurance that everyone will specifically be told of the right to judicial review. We deal with that as follows. The legal advisers of all those going through this process and taking advantage of the opportunity of legal advice will be aware of judicial review. We think that that provides an adequate safeguard.
Many concerns about this procedure have been expressed throughout the Bill's passage. Bearing all this in mind, we have decided that it would be appropriate to create a new statutory post, that of monitor of the clearly unfounded claims provisions. The monitor would look at the processes being used in such cases. This would include the way such claims were considered by the Immigration and Nationality Directorate, whether at Oakington or elsewhere. The monitor's role would not be to intervene in individual cases—we do not think that that would be appropriate—but to provide external, independent quality assurance on the systems being operated. He or she would be granted necessary access to ensure that that function could be carried out effectively. Fees and allowances would be paid as appropriate. He or she would be required to produce a report to the Secretary of State once a year. The report would be laid before Parliament, thereby providing transparency to the whole process. As noble Lords will be aware, other monitors exist in relation to the 1993 Act to review certain entry clearance decisions that do not attract a right of appeal. I refer also to the race monitor for whom provision was made in the Race Relations (Amendment) Act 2000.
We believe that having an independent monitor for the clearly unfounded, non-suspensive appeal provisions will add value to the process and underline the Government's commitment to quality decision-making. We consider that to be a significant amendment. I hope that noble Lords will treat it as such.
I turn to the other amendments in the group. I shall not deal with Amendments Nos. 89 and 90 as my noble and learned friend Lord Archer of Sandwell indicated that he would not move them. Amendment No. 91, spoken to by the noble Lord, Lord Goodhart, concerns an appeal to the Immigration Appeal Tribunal. I refer to the statutory review procedure in Clause 99 in that regard. If a claim is clearly unfounded and there is a proper judicial safeguard to ensure that the procedure is properly used—we say that there is; namely, judicial review—the noble Lord is simply saying in his amendment that he disagrees with the proposition of non-suspensive appeals. The Government take issue with that. That is what the debate is about. We say that there are clearly unfounded claims but that judicial review provides an effective remedy. We say that those clearly unfounded claims should not be allowed to proceed through half the system—as the noble Lord, Lord Goodhart, suggests—or, indeed, through all of it. We believe that we have an appropriate method to deal with the matter.
My Lords, I am grateful to the noble and learned Lord for giving way. We are not saying that there are not abusive claims where claimants ought to be returned. However, we are saying that there should be proper consideration of a suggestion that a claim is clearly unfounded before someone is returned to the country from which he or she came. Once that question has been determined, if it is agreed by the body that decides that question that the claim is unfounded, the asylum seeker should be returned. The appeal against the refusal of asylum can continue but on an out-of-country basis.
My Lords, accepting the proposition that there are clearly unfounded claims, the issue then simply concerns what is a suitable judicial safeguard. We say that it is judicial review. The noble Lord, Lord Goodhart, says that it is not. I say with the greatest respect that I have the support of the House of Lords sitting judicially who say that it is an effective remedy.
I shall deal with the amendment of my noble friend Lord Clinton-Davis at the end of my remarks. Amendments Nos. 88 and 94 were spoken to by the noble Lord, Lord Kingsland. They provide that a person who had an application certified as clearly unfounded could not be removed from the United Kingdom for a period of 28 days if it was proposed to remove him to a country which had not been certified as being safe. The simple answer to that is that we all recognise that there will be some clearly unfounded claims that involve a person making a claim from a country that is not on any sort of list to which the noble Lord refers. If there are such claims, and if there are sufficient judicial safeguards—I say that there are in the form of judicial review—we cannot see any reason why the provision should not apply to such claims.
As I understand it, the approach of my noble friend Lord Clinton-Davis is that he would prefer to see safeguards but, if they do not exist, he would like to see in place a 12-month sunset clause. We do not consider such a measure to be appropriate. There is no suggestion that in 12 months' time conditions will have changed to such an extent that the willingness of individuals to come to the United Kingdom to make clearly unfounded claims will have disappeared. We regard the powers as being applicable for the foreseeable future.
I turn to the way in which the situation is operating. The independent statutory monitor will report to Parliament and he will be able to inform both the Secretary of State and Parliament on an independent basis of what is going on. That can obviously inform future decisions.
We have listened carefully to what has been said and we have proposed the independent monitor. In light of that, I invite noble Lords to agree to the provisions and to take note of what the monitor says when he makes his reports to Parliament.
My Lords, we on these Benches have tried very hard in negotiations with the Government to find a form of words to achieve the objective that we seek. The noble and learned Lord made it absolutely clear that, although he is sympathetic to our concerns, he is not able to place in the Bill the guarantee that we seek.
We have not asked the Government to travel a long way; we simply want a guarantee in the Bill that those persons who would otherwise be removed to uncertified countries will have clear protection. The Government are not prepared to do that, and I therefore wish to test the opinion of the House.
moved Amendment No. 91:
Page 52, line 29, at end insert—
"(2A) If the Secretary of State certifies under subsection (2) that a claim is clearly unfounded, the person who made the claim may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the certificate.
(2B) A party to an appeal to the Tribunal under subsection (2A) may apply to the High Court, or in Scotland to the Court of Session, for a review of the Tribunal's decision on the ground that the Tribunal made an error of law.
(2C) Where an application is made under subsection (2B)—
(a) it shall be determined by a single judge by reference only to written submissions,
(b) the judge may affirm or reverse the Tribunal's decision, and
(c) the judge's decision shall be final."
moved Amendments Nos. 95 to 97:
Page 53, line 40, leave out "request" and insert "claim"
Page 53, line 44, leave out "request" and insert "claim"
Page 54, line 20, at end insert—
"( ) In this section a reference to an appeal under section 80(1) includes a reference to an appeal under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) which is or could be brought by reference to an appeal under section 80(1)."
On Question, amendments agreed to.
Clause 99 [Appeal to Tribunal]:
My Lords, before I call Amendment No. 98, I advise your Lordships that if Amendment No. 98 is agreed to, I cannot call Amendments Nos. 99 to 101 because of pre-emption.
My Lords, Amendments Nos. 98 and 101, which have been grouped, stand in our names. Amendment No. 98 would remove the new statutory review procedure under Clause 99 and leave the status quo—that is, appeals to the Immigration Appeal Tribunal, subject to the usual review procedure. We accept that there is some justification for the new statutory review procedure. The process of judicial review is becoming seriously overloaded. Clause 99 at least preserves a second-tier appeal to the High Court and Court of Session level, so we are not minded to press Amendment No. 98.
Amendment No. 101, however, concerns a more limited issue. Oral hearings should not be altogether excluded. Amendment No. 100 would require an oral hearing in any case where permission is refused on paper. That goes too far and would lead to unnecessary oral hearings in some cases. Amendment No. 101 is more limited, and would give a judge discretion to allow an oral thinking if he thought that that would be helpful. We see no reason why that should not be left to the discretion of the judge. In some cases, oral hearings are undoubtedly of assistance. If a judge in any particular case feels that it is one where an oral hearing would be of assistance to him or her, the judge should be free to exercise discretion to hold one. I beg to move.
My Lords, I shall speak to Amendment No. 99, but also to Amendments Nos. 98, 100 and 101. The purpose of Amendments Nos. 99 and 100 is to retain the right to oral hearings before the High Court judge reviewing the refusal of leave to appeal.
I do not propose to rehearse the case for retaining that right so compellingly made by the noble and learned Lord, Lord Archer of Sandwell, on Report or the fascinating summary of government views given by the noble Lord, Lord Kingsland.
I have only one observation to make. The noble Baroness, Lady Scotland, tells noble Lords that it is her expectation that when judges have studied the papers at the statutory review, and are not sure, they will refer the matter back to the Immigration Appeal Tribunal to determine the issue.
With respect that appears to be a curious procedure. A High Court judge who has to make a decision is deprived of the opportunity to listen to oral argument which otherwise would have enabled him to make a decision and he must refer the appeal back to the tribunal which has already refused leave to appeal. That process does not appear to make good sense and the justification provided for it by the Government, such as it is, is less than persuasive.
Since Report stage I have received a very comprehensive letter from the Minister dealing with a number of issues that had been raised in Committee and on Report on Clause 99, for which I am most grateful. Although I believe that there are a number of inconsistencies in the six-page letter—one of the longest that I have ever received—I am reassured by the answers provided to my specific questions on the test to be applied by judges in considering these appeals. On page 5 of the letter the Minister states:
"If the judge thinks the applicant has an arguable case, rather than adjourn for an oral hearing, that should be the trigger for sending the case back to the IAT for an appeal to allow proper consideration, including oral argument".
On page 6 in regard to the Civil Procedure Rules Committee, she states:
"firstly, we would expect the judge to see if there may have been an error of law and I stress the use of 'may'. Secondly, we would then expect the judge to consider whether the appeal has a real prospect of success or there is any other compelling reason why the appeal should proceed".
If I understand that correctly, the Minister is saying that the test would be exactly the same as at present, and based on that I would assume that if the case of the Turk, to which I referred in Committee and on Report, was heard under the new statutory procedures the outcome would have been the same.
I have one further question. On Report the Minister said that consultation on the Civil Procedure Rules would include all stakeholders. In her letter she clarifies that by saying:
"By 'consultation' I meant that we would discuss our request for changes to the Civil Procedure Rules with the members of the Civil Procedure Rules Committee, as the changes are subject to their agreement".
My Lords, the noble Lord, Lord Joffe, was kind enough to refer to the arguments that I advanced at an earlier stage in our deliberations. Perhaps I should explain to your Lordships that I am content with what has been said in the letter from my noble friend Lady Scotland. I too would like to know the answer to the question advanced by the noble Lord, Lord Joffe, but I do not propose to oppose the Government on this amendment.
My Lords, for much the same reasons as I stated on the earlier amendment, I feel that in this crucial area of asylum we should ensure that all the traditions of law are fully operative. In that sense, I have real anxieties about what is being proposed and I have a good deal of sympathy for what the noble Lord, Lord Joffe, has put forward in his amendment.
My Lords, I thank noble Lords for their contributions. As the noble Lord, Lord Joffe, said, I sought in the letter to explore and answer many of the issues with which we were not able to deal during the previous stage of the Bill. I should point out to other noble Lords that a copy of my letter has been placed in the Library of the House. Bearing that fact in mind, and subject to anything that other noble Lords may say, I do not intend to rehearse all, or any, of the matters set out in the letter.
I should tell the noble Lord, Lord Joffe, that there was a slight slip of the tongue in terms of the rules committee. Noble Lords will know that the composition of that committee is somewhat complex—it already comprises representatives of the legal profession. It is to that committee that consultation must go. My hesitance is due to the fact that I cannot dictate to the committee what its rules should be, nor do I seek so to do. I was merely trying to clarify the proposals that we intend to invite the rules committee to consider. We are relatively confident that the committee will give mindful consideration to those suggestions.
We believe that the matters and concerns that noble Lords outlined are dealt with in these provisions. I thank all noble Lords for the careful attention they have given to the issue, and for the support that they have now indicated in brief but succinct and pertinent speeches.
My Lords, as I indicated at the beginning of my remarks, we believe that the balance of advantages as between the statutory review and a return to the traditional judicial review is fairly close. In those circumstances, we are not anxious to press Amendment No. 98. However, we feel somewhat more strongly on the subject of Amendment No. 101. Although the noble Baroness's letter, which has been copied to me, is undoubtedly persuasive, we are left with some lingering doubts as to whether she is correct. Had it been earlier in the evening, we might have been tempted to press the amendment.
This is the last occasion upon which there is any chance to debate the issue. Nevertheless, one has to be realistic about it: the troops have gone. I do not believe that any useful purpose would be served at this stage by seeking to divide the House on the amendment. In the circumstances, I beg leave to withdraw the amendment.
moved Amendment No. 102:
Before Clause 107, insert the following new clause—
(1) Regulations may provide for, or make provision about, an appeal against an immigration decision taken in respect of a person who has or claims to have a right under any of the Community Treaties.
(2) The regulations may—
(a) apply a provision of this Act or the Special Immigration Appeals Commission Act 1997 (c. 68) with or without modification;
(b) make provision similar to a provision made by or under this Act or that Act;
(c) disapply or modify the effect of a provision of this Act or that Act.
(3) In subsection (1) "immigration decision" means a decision about—
(a) a person's entitlement to enter or remain in the United Kingdom, or
(b) removal of a person from the United Kingdom."
My Lords, Section 80 of the Immigration and Asylum Act 1999 contains a power to make regulations providing for rights of appeal in cases where there has been an adverse immigration decision in relation to EEA nationals, and their family members. Section 80 will be repealed, along with the rest of Part IV of the 1999 Act. This amendment will provide a similar power to that in Section 80.
The EEA regulations currently provide for rights of appeal against any EEA immigration decision under those regulations, such as a decision to exclude an EEA national, or family member. However, when an EEA appeal is heard and dismissed, it is possible for the claimant subsequently to make an asylum or human rights claim, which, if refused, gives access to further appeal rights. This can result in considerable delay in order to resolve multiple appeals, and, potentially, encourages abusive claims.
In such circumstances, it is our intention that the one-stop appeals process may be brought into operation so that all grounds for wishing to remain in the United Kingdom will be considered within the context of a single appeal hearing. The clause has, therefore, been drafted to ensure that the new EEA regulations that will be needed to replace the existing regulations can achieve that. I beg to move.
My Lords, I am a little puzzled by the amendment. Can the Minister explain whether there is any specific provision in the European treaties that authorises such action? In the normal way of things, there is, under the European Union treaties, freedom of movement, specifically for the purpose of seeking work, anywhere within the Union. If somebody is sent back to a European Union country when their claim for asylum is refused, is there any legal way of preventing them returning to this country, claiming freedom of movement as a migrant worker? If not, does the Minister propose to deny such a person that option and, thereby, infringe the basic rule of freedom of movement within the European Union? Is there any provision in European law that allows him to do so?
My Lords, subsection (2)(c) of the new clause contains Henry VIII powers. Does the Minister have it in mind that there may be parts of the Bill that either violate European Community law or contravene directives that may be imposed subsequently under the European Union's programme for establishing common policies on immigration and asylum? Does the Minister feel that the coming into force of such directives will require new primary legislation in the United Kingdom? If so, will he ensure that the next immigration legislation is consolidating legislation, bearing in mind that there have already been attempts to consolidate part of immigration law at an earlier stage of this Bill? Although those were not successful, there is a general feeling that, if we go on adding statute on to statute and order on to order, immigration law will become extremely difficult to interpret.
The Minister may be contemplating the eventuality that UK law will conflict with some provision of Community law, but could it not be struck down by the courts? Why do the Government need the Henry VIII power? In answering that question, could the Minister say why the Government feel that it is necessary only in respect of Part 5 of the Bill? The draft directives that are to be published by the European Union will cover a wide range of asylum and immigration issues, including support provisions and provisions in other parts of the Bill that may also turn out not to be compatible with EU law.
My Lords, I shall answer first the question asked by the noble Earl, Lord Russell. EU nationals are free to come and work in the United Kingdom; they have no need to claim asylum here.
The noble Lord, Lord Avebury, asked about the directives that are under discussion. I recollect that they are the reception directive and the qualification directive. They are not yet finalised. I think that the final date for the negotiations is probably next summer. It is hard, therefore, to give a definitive answer until we see exactly what they say. My recollection of them is such that I do not expect any incongruity with UK law. It is unlikely that we will need primary legislation to bring them into being, although that view is subject to the final shape of the directives. We will keep the House aware, through the scrutiny processes, of how the negotiations are progressing.
My Lords, the Minister is right to say that EU nationals have the right to claim work and, therefore, need not claim asylum. Given that, are all the provisions that we have just been asked to pass, denying claims for asylum from people from countries that are about to be admitted to the EU, entirely redundant?
My Lords, I shall venture the answer "no". I do not think that there is an exact congruity between EU nationals and EEA nationals. Therefore, there is a need for the law that we are putting through to address the position of people from EEA countries that are not members of the European Union.
moved Amendment No. 103:
After Clause 107, insert the following new clause—
(1) The Secretary of State shall appoint a person to monitor the use of the powers under sections 92(2) and 111(1).
(2) The person appointed under this section shall make a report to the Secretary of State—
(a) once in each calendar year, and
(b) on such occasions as the Secretary of State may request.
(3) Where the Secretary of State receives a report under subsection (2)(a) he shall lay a copy before Parliament as soon as is reasonably practicable.
(4) The person appointed under this section shall hold and vacate office in accordance with the terms of his appointment (which may include provision about retirement, resignation or dismissal).
(5) The Secretary of State may—
(a) pay fees and allowances to the person appointed under this section;
(b) defray expenses of the person appointed under this section.
(6) A person who is employed within a government department may not be appointed under this section."
[Amendment No. 103A, as an amendment to Amendment No. 103, not moved.]
On Question, Amendment No. 103 agreed to.
Clause 111 [Appeal from within United Kingdom: unfounded human rights or asylum claim: transitional provision]:
moved Amendment No. 104:
Page 62, line 24, at end insert—
"( ) In this section "asylum claim" and "human rights claim" have the meanings given by section 109 but—
(a) a reference to a claim in that section shall be treated as including a reference to an allegation, and
(b) a reference in that section to making a claim at a place designated by the Secretary of State shall be ignored."
On Question, amendment agreed to.
moved Amendment No. 105:
After Clause 113, insert the following new clause—
(1) The Secretary of State shall make an annual report to Parliament detailing the measures taken and proposed to improve procedure and reduce waiting times in immigration applications and appeals.
(2) The report shall include details of outcomes relating to any targets agreed or set by the Secretary of State in respect of such applications and appeals."
My Lords, I tabled the amendment in order to clarify and to resolve some remaining uncertainties following the debate in Committee late in the evening on 17th July. And here we are late again. The purpose of my amendment is to require the Secretary of State to make an annual report to Parliament on his targets and measures to improve immigration procedures. The Bill calls itself a Nationality, Immigration and Asylum Bill, but there seems precious little in it on immigration as such.
It seems appalling that students and those coming for permanent settlement find years of their lives blighted through bureaucratic delay and sometimes, sadly, by incompetence. A trawl through parliamentary Written Answers shows that although there are targets for entry clearance officers, they are not monitored properly. Worse still, there are no targets for, let alone monitoring of, how long an explanatory statement should remain in the Home Office.
There is no doubt that the system is in disarray. I will not at Third Reading repeat the arguments I put in Committee. However, the Government's answer to the amendment I tabled on that occasion was simply that if we all looked hard enough in enough places we could find the information we needed, particularly if we wanted to look in the Home Office's glossy annual report.
I took time during the Summer Recess and subsequently to check with outside bodies which kindly advise your Lordships on these matters and I am assured that they do not believe that the situation accords with what the Minister said. The information is not in a co-ordinated place and in a proper way to be presented to Parliament whereby Ministers can be held properly accountable.
My amendment gives Parliament the important opportunity to scrutinise the proposals in the correct manner. I beg to move.
My Lords, we support the amendment. Only a few months ago the Home Secretary had to have figures counted by hand in order to determine a number of applications and so forth. Parliament has a right to know precisely what is happening in this area of work and the amendment takes that into account. The more reliable the information we have, the better informed we will be and the better the discussions will be.
My Lords, I, too, want to add a few words in support of the amendment. I was once at my seminar listening to a guest of one of the speakers. She was a highly successful Canadian businesswoman who had arrived here with one minor irregularity in her papers. She was here on business which might have resulted in a fairly substantial export order to our benefit. She was put straight back on the plane to Toronto. She told me that under no circumstances whatever would her firm bring any further business to Britain.
There are too many such cases and I do not believe that they are to our advantage.
My Lords, it sometimes seems that if we are stuck for an amendment we call for an annual report. This one comes up as a bit of a hardy perennial, or perhaps a hardy annual.
The amendment would require the Secretary of State to produce to Parliament a specific annual report, but this report would include information which is already, in our view, reported in a number of formats. The noble Baroness, Lady Anelay, quite rightly anticipated my response.
It is perhaps worth detailing what we publish and where these data are. The Home Office annual report publishes the high level targets on immigration and other areas. Aim 6 for the Immigration and Nationality Directorate is to regulate effectively entry to and settlement in the UK in the interests of sustainable growth and social inclusion.
The report details the public service agreement targets, which include ensuring that, by 2004, 75 per cent of substantive asylum applications are decided within two months. The report also details IND's objectives under Aim 6, its performance measures, targets, milestones and the latest out-turn figures. The IND produces an annual business plan, which looks ahead, reviews and reports on proposed measures for improving procedures. It also reports on the objectives and targets for the year and reviews performance against targets for the previous year.
In addition, the IND produces an annual report, the main emphasis of which is comparing performance against targets for the past financial year. It also sets out targets for future years. The IND and the LCD are working together with the Treasury on a single asylum budget, which will increase the effectiveness of the overall asylum process and the reporting of it.
So it is all there; the material sought is already in the public domain in an accessible format. I congratulate the noble Baroness on carrying out her researches in the summer, but this would be an unnecessary duplication of something that has already been achieved and would serve no additional good purpose. Sympathetic though we are to ensuring that accountability is reinforced through a series of annual reports, we feel that we are already hitting our own targets on those issues.
My Lords, I am grateful to the noble Lord, Lord Dholakia, and the noble Earl, Lord Russell, for their support. As ever, the noble Earl gave a practical example of where problems bite in this area. I am certainly pleased that I have the support of my noble friend Lord Brooke of Sutton Mandeville. Although we on the Front Bench may not have been as much an Opposition to the Government as he liked, I hope that today, at least, he has seen that we have scored some victories over the Government on matters of principle.
The Minister said that whenever stuck for an amendment I might choose one of these. I can assure him that I shall never be stuck for an amendment and I hope that they will always be reasonable and rational. He said that this is a hardy annual. I am a lifer—I do not know whether that makes me a hardy annual, biennial or perennial, but I shall keep going as long as the Government allow this House to hold them to account.
The Minister seemed to perambulate around the subject. He did not give me a single example of where information about immigration figures is collated and to be found so that we can hold the Government to account on them. This is a matter of parliamentary accountability. I have taken the advice of outside organisations. I believe that there is a need for such an annual report and I wish to test the opinion of the House.
moved Amendment No. 106:
After Clause 113, insert the following new clause—
On Question, amendment agreed to.
Clause 114 [Leave pending decision on variation application]:
moved Amendment No. 107:
Page 63, line 25, at end insert—
"(2A) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
(2B) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(2C) But subsection (2B) does not prevent the variation of the application mentioned in subsection (1)(a)."
My Lords, this tidying-up amendment explains what happens to the extension of leave if a person leaves the United Kingdom. It also safeguards the one-stop principle by ensuring that technically there is only one application—although an application may be made and varied on any number of grounds. People who have no grounds to remain in the United Kingdom may be required to leave. Amendment No. 109 allows us to encourage them to explain at an early stage why they should not be so required.
These are minor, technical amendments. I have no real interest in detaining your Lordships' House unless noble Lords wish to raise related issues. I beg to move.
My Lords, I wonder why there is no discretion in subsection (2A) of the amendment. On occasions, there may be perfectly good reasons for leaving the United Kingdom, even if not for returning to the country of origin. Suppose, for example, the applicant has a mother living in France, it is reported that she is dying, and he goes home to see her. Would not "may" be more appropriate to that case than "shall"?
I think not, my Lords, but I am sure that good sense will prevail in the exercising of the powers. A person can make a fresh application on return, so I do not think that the problem that the noble Earl foresees is a real one. I hope that the amendments will be supported.
moved Amendment No. 108:
After Clause 114, insert the following new clause—
"DEEMED LEAVE ON CANCELLATION OF NOTICE
In paragraph 6(3) of Schedule 2 to the Immigration Act 1971 (c. 77) (deemed leave on cancellation of notice of refusal) after "and the immigration officer does not at the same time give him indefinite or limited leave to enter" there shall be inserted "or require him to submit to further examination"."
My Lords, under current legislation, if an immigration officer cancels a notice refusing a person leave to enter, that person will be deemed to have been granted six months' leave to enter unless a fresh decision is taken at the same time. This new clause means that the granting of six months' deemed leave can be avoided if the immigration officer, when cancelling the first decision, advises the individual that the case is to be further examined. I beg to move.
My Lords, the amendment would limit the definition of "passengers" and insert instead,
"individuals known to pose either a security or an immigration threat".
"people who are known already to pose a security or immigration control threat".—[Official Report, 17/7/02; col. 1353.]
The noble Lord repeated that terminology in other contributions at that stage. It was also used in a letter that the then Minister sent to Members of another place when she was commenting on the powers. She said that carriers would normally be given a simple yes or no against each proposed passenger by e-mail or some other means after the Immigration Service had checked that name against warnings.
If the intention of the clause is to prevent known immigration offenders, individuals named in travel bans or people whose passports are listed as stolen or lost coming into the United Kingdom, we do not need the enormous breadth of the powers on the face of the Bill, which ostensibly would allow Ministers to designate whole classes of passenger as subject to the clause. I beg to move.
My Lords, we have debated these provisions a number of times, but I am still struggling to understand fully what is worrying about including in the Bill more effective ways of checking on passengers.
Amendment No. 110 would require carriers operating under an authority-to-carry scheme to seek authority to bring to the UK a person who is known to pose either a security or immigration threat. This amendment would render the idea of authority to carry unworkable as it assumes that carriers would know whether a passenger poses such a threat before making the authority-to-carry check. The clause as drafted requires carriers to check to see if a person poses a threat.
Authority to carry is designed to help carriers to identify unacceptable passengers, rather than to authorise the travel of such passengers. Amendment No. 111 would limit the flexibility of any authority-to-carry scheme and remove the scope to apply different versions of authority to carry to different types of passenger.
The ability to apply different criteria to different types of passenger is necessary to ensure that the scheme can be responsive to the different requirements placed by the Immigration Rules on different categories of passenger. An example would be the need to apply different levels of checks on EEA nationals as opposed to non-EEA nationals. Any scheme that applied to EEA nationals would be limited to a confirmation that the document presented by an EEA national was genuine and that it was not known to have been lost or stolen. A scheme covering non-EEA nationals would include that document check but also whether the holder was known to pose a security or immigration threat.
Any regulations establishing an authority-to-carry scheme would be subject to parliamentary scrutiny and would be transparent. An authority to carry represents an important potential development in the immigration field, recognising that, across the country, we already handle 90 million transactions through the system each year. So it is important that we allow these ideas to be developed, although we have no immediate plans to roll them out. We therefore cannot accept Amendments Nos. 110 or 111.
My Lords, I cannot tell the cost because there is no specific or detailed proposal at this stage. I would certainly expect that the bulk of the costs, when and if we introduce the scheme, would fall on the Government. The scheme would in fact benefit carriers as it would prevent their transporting to the United Kingdom people who are later discovered not to have a right of entry, in which case the carrier would have the burden of having to return them to the country from whence they came.
My Lords, I am sorry that we were not able at an earlier stage to explain more clearly to the Minister the reasons for our anxieties about this clause. I had imagined, however, that he had taken on board the concerns expressed by the UNHCR, which he himself acknowledged in Committee, when he said:
"The UNHCR has expressed some concern that authority to carry schemes could impede the right to asylum and has amplified that by saying that it might obstruct admission to the asylum determination system".—[Official Report, 17/07/02; col. 1353.]
That is the reason why we sought to insert, rather than the general term "passenger", classes of person to whom the Minister himself referred when he explained how the clause would operate. What we need is an assurance that the provision will be applied to individuals within the categories concerned—that is to say, persons who are known immigration offenders, individuals named in travel bans, and persons whose passports have been listed as stolen or lost.
If we are confining the authority-to-carry scheme to those particular groups and are not going to extend it as the power would allow to general classes—and thereby obstruct admission to the asylum system as the UNHCR fears might be the case—we would be given some reassurance. However, nothing that the Minister has said today has given us that comfort.
My Lords, we do not feel that the general anxiety about UNHCR is valid in that most of those who come to claim asylum would not be known to the United Kingdom authorities. They would therefore not be caught by these measures and would be able to come to the country and claim. The only ones who would be caught are those with immigration offence records or who are terrorists. They would be caught by these measures.
My Lords, that is to some extent the undertaking that I sought. However, I suggest to the Minister that as those anxieties were expressed by the UNHCR—so far as I know, they have not gone away—his department should take the opportunity to consult with that body to make sure that what is now on the face of the Bill is satisfactory and does not continue to arouse the concerns that it expressed at an earlier stage. I see that the Minister nods. I am most grateful. I beg leave to withdraw the amendment.
My Lords, we are anxious as Clause 136 appeared out of the blue at the last stage. I think I am right in saying that it was never debated. We see a risk of bilateral agreements side stepping any safeguards that might be introduced by the successor to the Dublin convention, or arising as a result of case law. We need to hear from the Government how the bilateral arrangements will operate and why the Government feel that these provisions should appear in the Bill as opposed to what we suggest; that is, agreements with all states of the European Union. I beg to move.
My Lords, this amendment would prevent our establishing juxtaposed controls with another single nation without the agreement of all member states of the European Union. Our argument is simply that that is an unnecessarily cumbersome way of attempting to set up what we see as being sensible and practical arrangements for controls.
As the noble Lord will know, we are working towards such an agreement with the French to establish juxtaposed controls in relation to ferry services at Dover and Calais, with the specific aim of further decreasing the number of inadequately documented passengers entering the United Kingdom from France. That is part of the agreement struck with regard to the closure of the Sangatte centre. The Home Secretary has also agreed with the Belgian Interior Minister, Antoine Duquesne, to work towards juxtaposed controls at Zeebrugge. Establishing this would require a formal international agreement with Belgium. The order-making power is wide enough to apply to future agreements on juxtaposed controls relating to passengers arriving in the United Kingdom by sea from any EEA port (including ports in countries other than France) because experience with the Channel Tunnel has taught us that there tends to be a displacement effect.
We anticipate that once we introduce juxtaposed controls at Calais, other ports with ferry services to and from the United Kingdom may see an increase in the numbers of improperly documented passengers attempting to pass through them. In such a situation Clause 136 would allow the establishment of juxtaposed controls, subject to an agreement with that particular state. The juxtaposed controls will not affect the removal of asylum claimants from the United Kingdom under Section 11 of the Immigration and Asylum Act 1999. Section 11 would not apply in circumstances where an application for asylum was made to a United Kingdom official at a juxtaposed control outside the United Kingdom in another state. The person would be in the territory of another member state throughout. So it is wrong to allege that they could be returned there without an in country appeal in the United Kingdom, as they would never have entered the UK in the first place.
The establishment of juxtaposed controls is a bilateral matter between the UK and the other nation state concerned. It is the establishment of UK immigration controls in Calais and French immigration controls in Dover. It is not a matter that requires agreement by all EU member states. To pursue the course proposed in the amendment would make the system unnecessarily cumbersome to operate, lead to delay and undermine the principle behind it. For those reasons we cannot possibly accept the noble Lord's amendment. It is unnecessary and would not aid what we are trying to achieve.
My Lords, of course we work within the framework of international law. That is the whole basis on which we approach issues involved with this Bill and other legislation with an international impact.
My Lords, this amendment has served the useful purpose of getting the Minister to explain how the juxtaposed controls were intended to operate. If we had not tabled the amendment, none of that would have appeared in Hansard.
The arrangements in Sangatte, which are the motive force behind these provisions, may, as the Minister explained, be extended to other ports of entry to the United Kingdom. As he knows, in Sangatte the UNHCR offered its collaboration. I hope that the Minister has taken that up and that discussions are taking place on how the juxtaposed controls will operate in what we may call this pilot scheme. As the Minister said, that may well be extended not only to other ports in France but to places such as Zebrugge. Would it not be useful in future if, whenever juxtaposed controls were being developed between the United Kingdom and an EEA state, the UNHCR was brought into the picture at an earlier stage, rather than waiting until the situation was a fait accompli? I shall be happy to withdraw the amendment if the Minister gives me this assurance.
My Lords, I can give that assurance. Of course we seek to consult widely and the UNHCR is one of those bodies that will be busily consulted in that context.
My Lords, that is very useful. Does the noble Lord's assurance apply to future juxtaposed controls and not simply to those that have already been put in place in relation to Sangatte?
moved Amendment No. 113:
After Clause 136, insert the following new clause—
"ADVISORY PANEL ON COUNTRY INFORMATION
(2) The Secretary of State shall appoint one member of the Advisory Panel as its Chairman.
(3) The function of the Advisory Panel shall be to consider and make recommendations to the Secretary of State about the content of country information.
(4) In this section "country information" means information about conditions in countries outside the United Kingdom which the Secretary of State compiles and makes available, for purposes connected with immigration, to—
(a) immigration officers, and
(b) other officers of the Secretary of State.
(5) The function of the Advisory Panel shall be shared among its members in accordance with arrangements made by the Chairman.
(6) A member of the Advisory Panel shall hold and vacate office in accordance with the terms of his appointment (which may include provision about retirement, resignation or dismissal).
(7) The Secretary of State may—
(a) pay fees and allowances to members of the Advisory Panel;
(b) defray expenses of members of the Advisory Panel;
(c) make staff and other facilities available to the Advisory Panel."
The country information assessments are compiled from a wide variety of independent, reliable and well recognised sources to give a balanced picture and provide pointers to the relevant source. They do not interpret information, nor do they contain government opinion or policy.
Last year the Home Office commissioned a research project to evaluate the content and use of the country information produced by CIPU. We have recently received the results of that research, which, I am pleased to say, in general validates CIPU's work. The research project's findings make it clear that while CIPU's country assessments are effective tools that contribute to the asylum decision-making process, considerable value could be added to the quality of country information by establishing a user panel for those who utilise country of origin information, and an expert panel of topic and country specialists.
As a consequence, an IND users' group has been set up to identify more specifically the information needed to assist in determining asylum applications. Initial discussions have already proved useful. At the same time, we considered a paper by Professor Guy Goodwin-Gill, who discussed the case for an independent documentation centre. His paper also introduced the idea of an "advisory board", with appropriate representation from the different constituencies.
The Government have listened to the concerns expressed in another place and have come to the view that the most constructive and cost-effective way forward would be to establish an advisory panel that will assist in, and inform, the continuing process of improving the quality, impartiality and objectivity of the CIPU country assessments.
We believe that the establishment of an independent panel of external people to provide scrutiny and oversight of the quality and content of the biannual country assessments should help to overcome any adverse perception of CIPU that is held by some external stakeholders. The panel could review the methodology used.
My honourable friend the Minister of State wrote to the right honourable Oliver Letwin MP and to Simon Hughes MP on 21st August, seeking their views on our proposals for the membership and remit of an independent advisory panel and will be pleased to give full consideration to their comments when they contribute them. We certainly want the panel to be established by 2003. I hope that the House finds those commitments and the amendment useful. It addresses some of the issues that we discussed at previous stages of the Bill. I beg to move.
My Lords, the amendment is certainly welcomed, as far as it goes, and I am glad to hear from the Minister that he has consulted Professor Guy Goodwin-Gill, who is an acknowledged expert on these matters. I hope that the noble Lord will continue to seek his advice in deciding who should be appointed to the advisory panel.
What sort of people does the noble Lord envisage will be on it? Will he invite nominations from human rights organisations, such as Amnesty International, Human Rights Watch, and so on? Will the advice that the advisory panel gives be published? How will the Government make use of the information that they provide, and, notwithstanding these amendments, will the Government continue to investigate the possibility of a totally independent documentation centre? Does the noble Lord have in mind any other steps to improve the quality of country information? We acknowledge the improvements that have already taken place in the quality of CIPU information. However, we believe that there is a long way still to go and that the advisory panel will be useful in that regard.
My Lords, in response to the specific questions raised, we set out in the letter to Oliver Letwin and Simon Hughes our thoughts on the composition of the panel in terms of the constituencies from whom people might be drawn. We suggested a leading researcher or academic as the chair, representatives from UNHCR and Human Rights Watch, a senior immigration lawyer to be nominated by ILPA, VSO, the International Committee of the Red Cross, FCO, IND, LCD—this is quite a good list of acronyms—and an independent expert from Chatham House. We do not see a need to go further than that at this stage. We believe that this, combined with the users group, will build on what we consider to be good work thus far. We hope that it will be used even more and that it will be more respected in all fields.
My Lords, the country information advice is already posted on the website. I believe that it is updated biannually and that that will continue to be the case.
My Lords, again, before the noble Lord sits down, when we discussed this matter at an earlier stage, it was indicated to us that the Home Secretary would consult a suitable body, or bodies, before adding any country to the "white lists" under Clauses 92 and 111. I believe that we moved an amendment to that effect, although it was not accepted by the Government. Is it intended that the advisory panel should be used for the purpose of consultation in that context?
My Lords, I do not think so. The advisory panel is intended to give information and expert advice on the country assessments. The assessments are there to document what is known about the countries in a way that might be relevant to making a decision on an asylum application. It is possible—here, I conjecture—that, were the Government to consider extending the list of safe countries, they might well use information in that domain as one source of information. But that is not the central thrust; the central thrust is to aid decision-making on individual cases.
moved Amendment No. 114:
After Clause 136, insert the following new clause—
On Question, amendment agreed to.
Clause 138 [ Section 137: consequential amendments]:
My Lords, Clauses 138 and 144 both make amendments to Sections 28B(5) and 28D(4) of the Immigration Act 1971, which relate respectively to the immigration officers' powers of search and arrest and their power to enter and search premises. This group of amendments co-ordinate the changes made by Clauses 138 and 144 so that the amended sections of the 1971 Act will read coherently. As we are all in favour of coherence, I hope that noble Lords will feel able, at this late hour, to endorse the amendment. I beg to move.
moved Amendments Nos. 117 and 118:
Page 84, line 30, leave out from "warrant)" to end of line 32 and insert "after ", 24A" there shall be inserted ", 26A or 26B."."
Page 84, line 33, leave out from "premises)" to end of line 34 and insert "after ", 25B" there shall be inserted ", 26A or 26B"."
On Question, amendments agreed to.
moved Amendment No. 119:
After Clause 144, insert the following new clause—
In section 26(3) of the Immigration Act 1971 (c. 77) (general offences: "relevant enactment")—
(a) the word "or" after paragraph (c) shall cease to have effect, and
(b) after paragraph (d) there shall be inserted—
My Lords, it is an offence under Section 26(1)(c) of the Immigration Act 1971 to make a return, statement or representation which is false or which the person making it does not believe to be true, to an immigration officer or other person acting lawfully under a relevant enactment.
Amendment No. 119 adds the present Bill, minus the appeals provisions, to the list of relevant enactments. Amendment No. 139 includes the requisite repeal of the word "or"—it is good to be repealing the word "or"—where it appears at the end of the penultimate enactment in the present list in the schedule of repeals to the 1971 Act resulting from this Bill. I have great delight in moving this wholly uncontroversial amendment. I beg to move.
moved Amendment No. 121:
Before Clause 150, insert the following new clause—
"CONSEQUENTIAL AND INCIDENTAL PROVISION
(1) The Secretary of State may by order make provision which he thinks necessary in consequence of or in connection with a provision of this Act.
(2) An order under this section may, in particular—
(a) amend an enactment;
(b) modify the effect of an enactment.
(3) An order under this section must be made by statutory instrument.
(4) An order under this section which amends an enactment shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
(5) Any other order under this section shall be subject to annulment pursuant to a resolution of either House of Parliament."
My Lords, we had an important debate earlier tonight on this proposed new clause. During the debate the House made clear that it had reservations, certainly about the drafting of the provision and no doubt about one or two other matters.
I make clear that the Government will consider the drafting of the clause accepting the point made by the noble Lord, Lord Kingsland. We shall consider how best to clarify the limited scope of the power, reflecting on the precedents identified by the noble Lord. For example, he illustrated that the words, "may by order make consequential or incidental provision in connection with a provision of this Act" were safer and more narrow than the words in our amendment. We are happy to accept that view, subject to any final checking. I beg to move.
My Lords, I thank the noble Lord for his introduction in moving the amendment. As he correctly stated, there was lengthy debate earlier in which noble Lords from around the House expressed serious concerns with regard not only to the drafting but to the content of this clause. I am grateful to the Minister for stating that the Government are now prepared to consider carefully the drafting with a view to clarification, and that they have taken careful note of the points put forward by my noble friend Lord Kingsland with regard to other drafting which may be more felicitous.
Perhaps I may remind the Minister that this is not merely a case of drafting. My noble friend said earlier that there is a matter of setting a precedent which causes concern. These are matters which all parties should consider carefully and quietly over the weekend. The Government now have the opportunity to present to another place another version of this clause. We shall await what another place decides on this matter.
moved Amendment No. 122:
Page 89, line 12, at end insert—
"( ) The following shall be substituted for section 32(5) of the Immigration Act 1971 (c. 77)—
( ) The following shall be substituted for the definition of "the Immigration Acts" in section 167(1) of the Immigration and Asylum Act 1999 (c. 33)— "the Immigration Acts" has the meaning given by section 150 of the Nationality, Immigration and Asylum Act 2002.""
My Lords, the amendment makes clear that any reference to "the Immigration Acts" in either the Immigration Act 1971 or the Immigration and Asylum Act 1999 includes a reference to this Bill. Without this amendment there is a contradiction between the definition of "the Immigration Acts" in the 1971 and 1999 Acts and that definition in Clause 150(2) which suggests something different. I beg to move.
moved Amendment No. 123:
Page 90, line 17, at end insert—
"( ) section (Construction of reference to person liable to detention),"
On Question, amendment agreed to.
moved Amendment No. 125:
Page 90, line 33, at end insert "(which may include the purpose of the application of a provision to or in relation to a particular place or area);"
Amendment No. 125 will broaden the commencement order-making power to Clause 154 of the Nationality, Immigration and Asylum Bill to allow provisions to be piloted on a geographic basis prior to full roll-out.
Amendment No. 126 is of a minor and technical nature to ensure that a regulation made in respect of the oath of allegiance can also be made in respect of the new pledge of loyalty. I beg to move.
My Lords, it is a case of, "Are we nearly there yet?" I have to say that we are. Amendments Nos. 127 to 129 are purely consequential amendments arising from provisions of the Bill. Amendment No. 127 amends the Immigration Act 1971 to ensure that any period when an appeal is pending does not count towards the time limit following the decision after which directions for removal can be given. That saves interim directions having to be given during the course of an appeal to preserve removability should the appeal be dismissed.
Amendment No. 128 simply updates a couple of references in the Race Relations Act 1976 to legislation which is now changed. Amendment No. 129 updates a reference in the 1999 Immigration and Asylum Act so that it points to a provision of this Bill. These are minor, technical and clarifying amendments. I beg to move.
moved Amendments Nos. 128 and 129:
Page 107, line 26, at end insert—
"(ii) for "rules under section 5 or 8 of that Act;" substitute "rules under that Act;", and (iii) for "rules under paragraph 3 or 4 of Schedule 4 to that Act." substitute "rules under that Act."."
Page 109, line 34, at end insert—
" In section 53(4) of that Act (bail) for "this Act" there shall be substituted "the Nationality, Immigration and Asylum Act 2002"."
On Question, amendments agreed to.
Schedule 8 [Carriers' Liability]:
[Amendment No. 130 not moved.]
Amendments Nos. 136 and 137 provide that appeals against civil penalty and carriers' liability charges are to be limited to the county court in England, Wales and Northern Ireland and to the sheriff in Scotland, given the need to allocate judicial resources appropriately. In practice, it is unlikely that the complexity of proceedings involved would merit consideration by a higher court, but the amendment allows the courts to transfer the proceedings to the High Court and the sheriff to the Court of Session should they feel it right and appropriate in the circumstances. I am sure that noble Lords will find these amendments agreeable. I beg to move.
moved Amendments Nos. 132 to 138:
Page 118, line 23, at end insert—
"( ) Subsections (12) and (13) of section 35 shall have effect for the purpose of this section as they have effect for the purpose of section 35(1), (7) and (10)." Page 118, line 40, leave out "Omit"
Page 118, line 41, at end insert "shall cease to have effect"
Page 118, line 42, at end insert "(which becomes subsection (1))"
Page 119, line 2, at end insert—
"( ) omit the definition of "court","
Page 119, line 25, at end insert—
", and ( ) at the end insert—
"(2) A reference in this Part to "the court" is a reference—
(a) in England and Wales, to a county court,
(b) in Scotland, to the sheriff, and
(c) in Northern Ireland, to a county court.
(a) a county court may transfer proceedings under this Part to the High Court, and
(b) the sheriff may transfer proceedings under this Part to the Court of Session."" Page 119, line 38, at end insert—
"( ) In paragraph 5(1) omit "or 42"."
On Question, amendments agreed to.
Schedule 9 [Repeals]:
moved Amendment No. 139:
Page 120, line 14, at end insert—
"In section 26(3) the word "or" after paragraph (c)."
On Question, amendment agreed to.
My Lords, it is late, so I shall confine my remarks merely to: I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Filkin.)
On Question, Bill passed, and returned to the Commons with amendments.