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Clause 5 - Refusal of leave to enter

Part of Immigration, Asylum and Nationality Bill – in a Public Bill Committee at 3:00 pm on 20th October 2005.

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Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities 3:00 pm, 20th October 2005

I beg to move amendment No. 103, in clause 5, page 4, line 1, leave out paragraph (b) and insert—

'(b) if section 92(3)(c) applies.'.

I hope that we can deal with the amendment quickly. The purpose of the amendment is to preserve the existing position in the Nationality, Immigration and Asylum Act 2002 as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, under which a passenger who arrives with valid entry clearance and is then refused into the UK has a right   of appeal from within country before removal, unless the reason for refusal is that that entry is sought for a purpose other than that for which the clearance was granted.

Proposed new section 89 of the 2002 Act, which clause 5 will insert, will significantly reverse the burden of proof in appeals against refusal of leave to enter. Before I continue, I should state, and I am grateful to the Bill team for having clarified this, that the capitalisation and the bracketing in the amendment are slightly awry. I advise the Minister, if he has not already been advised, which I suspect he has been, that amendment No. 103 should read:

''and insert—

(b) if section 92(3C) applies.'', because there is no section 92(3)(c). I am more than willing to say that that was an error in my handwriting in order not to apportion blame to anyone else for that slip-up. I understand that the Minister and his team would have understood what we meant. I shall explain the amendment's impact.

The way in which clause 5 proposes a new section 89 seems inappropriate for two main reasons. First, the passenger will have already demonstrated to the satisfaction of an immigration official overseas—the entry clearance officer—that he or she has a claim to enter the United Kingdom, so the clearance has the effect in law of constituting a grant of leave to enter the country. If the immigration officer on the control at a port in the UK is considering removing a status that has already been granted by a colleague, the burden of justifying that decision to go behind the earlier decision should rest with the officer who alleges it rather than with the passenger. To force passengers to defend themselves when someone else has made the decision seems a little unreasonable.

Secondly, new section 89 presumes a negative. It presumes that a passenger's intention is other than specified. As I have said before, we are in a sense revisiting—[Interruption.]—the primary purpose rule, as the hon. Member for Walthamstow pre-empted sotto voce. The Government rightly dropped that rule in 1997, in a move that was widely welcomed by colleagues in my party and, I believe, in the Minister's.

There was at least the right of appeal in primary purpose cases, even if it was always difficult to satisfy a court of someone's intentions when the person was not available to give oral evidence. The new section removes any right of appeal on a negative presumption about a passenger's intentions. The Minister should consider whether it would be more appropriate to amend the clause somewhat, even if he does not want to go the whole way in respect of what I have proposed. That is the basis for the amendment. I look forward to the Minster's response.