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Lord Dubs moved, as an amendment to Amendment No. 1, Amendment No. 19:


Line 31, after ("made") insert ("without reasonable explanation").

The noble Lord said: I beg to move.

4.46 p.m.

On Question, Whether the said amendment (No. 19, as an amendment to Amendment No. 1) shall be agreed to?

Their Lordships divided: Contents, 112; Not-Contents, 170.

Division No. 1

CONTENTS

Acton, L.
Addington, L.
Ashley of Stoke, L.
Avebury, L.
Barnett, L.
Birk, B.
Blackstone, B.
Borrie, L.
Bristol, Bp.
Broadbridge, L.
Bruce of Donington, L.
Canterbury, Abp.
Carmichael of Kelvingrove, L.
Carter, L.
Chester, Bp.
Chichester, Bp.
Chorley, L.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crook, L.
Cudlipp, L.
David, B.
Dean of Beswick, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Diamond, L.
Donaldson of Kingsbridge, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Ewing of Kirkford, L.
Falkender, B.
Falkland, V.
Fisher of Rednal, B.
Fitt, L.
Gallacher, L.
Geraint, L.
Gladwin of Clee, L.
Glenamara, L.
Gould of Potternewton, B. [Teller] Graham of Edmonton, L.
Grey, E.
Halsbury, E.
Harris of Greenwich, L.
Haskel, L.
Hayman, B.
Henderson of Brompton, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howell, L.
Howie of Troon, L.
Hughes, L.
Hylton, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Kilbracken, L.
Kirkhill, L.
Lincoln, Bp.
Lockwood, B.
Longford, E.
Lovell-Davis, L.
McIntosh of Haringey, L.
Mackie of Benshie, L.
McNair, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Mayhew, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Morris of Kenwood, L.
Nicol, B.
Ogmore, L.
Palmer, L.
Peston, L.
Richard, L.
Ripon, Bp.
Robertson of Oakridge, L.
Robson of Kiddington, B.
Rochester, L.
Rodgers of Quarry Bank, L.
Runcie, L.
Russell, E. [Teller.]
Sainsbury, L.
Sandwich, E.
Seear, B.
Sefton of Garston, L.
Serota, B.
Sewel, L.
Shepherd, L.
Simon of Glaisdale, L.
Stallard, L.
Stedman, B.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Gryfe, L.
Thurlow, L.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Wallace of Saltaire, L.
Wedderburn of Charlton, L.
White, B.
Wigoder, L.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.

NOT-CONTENTS

Aberdare, L.
Abinger, L.
Ackner, L.
Addison, V.
Ailsa, M.
Aldington, L.
Alexander of Tunis, E.
Allenby of Megiddo, V.
Ampthill, L.
Archer of Weston-Super-Mare, L.
Arran, E.
Balfour, E.
Barber of Tewkesbury, L.
Belhaven and Stenton, L.
Blake, L.
Blaker, L.
Blatch, B.
Boardman, L.
Bowness, L.
Boyd-Carpenter, L.
Brentford, V.
Bridge of Harwich, L.
Brougham and Vaux, L.
Burnham, L.
Butterfield, L.
Butterworth, L.
Cadman, L.
Caithness, E.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnarvon, E.
Carnegy of Lour, B.
Carnock, L.
Chalker of Wallasey, B.
Charteris of Amisfield, L.
Chelmsford, V.
Chesham, L. [Teller.]
Clanwilliam, E.
Clark of Kempston, L.
Courtown, E.
Cranborne, V. [Lord Privy Seal.]
Crawshaw, L.
Crickhowell, L.
Cumberlege, B.
De L'Isle, V.
Dean of Harptree, L.
Deedes, L.
Denton of Wakefield, B.
Dilhorne, V.
Dixon-Smith, L.
Donegall, M.
Dundonald, E.
Eden of Winton, L.
Elibank, L.
Ellenborough, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erne, E.
Exmouth, V.
Finsberg, L.
Forbes, L.
Fraser of Kilmorack, L.
Gainford, L.
Gainsborough, E.
Gardner of Parkes, B.
Geddes, L.
Gisborough, L.
Goold, L.
Goschen, V.
Gray of Contin, L.
Grimston of Westbury, L.
Harding of Petherton, L.
Hardinge of Penshurst, L.
Hardwicke, E.
Harmsworth, L.
Henley, L.
HolmPatrick, L.
Hothfield, L.
Howe, E.
Hylton-Foster, B.
Inchyra, L.
Inglewood, L.
Ingrow, L.
Kenilworth, L.
Kimball, L.
Kingsland, L.
Kitchener, E.
Knollys, V.
Knutsford, V.
Lane of Horsell, L.
Lauderdale, E.
Lindsay, E.
Lindsey and Abingdon, E.
Liverpool, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Lytton, E.
McColl of Dulwich, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Mackay of Drumadoon, L.
Marlesford, L.
Massereene and Ferrard, V.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Monk Bretton, L.
Montgomery of Alamein, V.
Mottistone, L.
Mountevans, L.
Mowbray and Stourton, L.
Munster, E.
Murton of Lindisfarne, L.
Newall, L.
Norrie, L.
Northesk, E.
O'Cathain, B.
Oppenheim-Barnes, B.
Orkney, E.
Orr-Ewing, L.
Oxfuird, V.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Pender, L.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Prentice, L.
Quinton, L.
Rankeillour, L.
Rawlings, B.
Rees, L.
Renfrew of Kaimsthorn, L.
Renton, L.
Renwick, L.
Romney, E.
Sainsbury of Preston Candover, L.
Saltoun of Abernethy, Ly.
Sandford, L.
Seccombe, B.
Sharples, B.
Shaw of Northstead, L.
Sherfield, L.
Shrewsbury, E.
Stewartby, L.
Stockton, E.
Stodart of Leaston, L.
Strange, B.
Strathcarron, L.
Strathclyde, L. [Teller.]
Sudeley, L.
Swinfen, L.
Tebbit, L.
Teynham, L.
Thomas of Gwydir, L.
Trumpington, B.
Ullswater, V.
Wade of Chorlton, L.
Westbury, L.
Whitelaw, V.
Wilberforce, L.
Wise, L.
Wolfson, L.
Wynford, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

30 Apr 1996 : Column 1504

4.55 p.m.

[Amendments Nos. 20 and 21, as amendments to Amendment No. 1, not moved.]

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 22:


Line 42, leave out ("is") and insert ("has been certified by an Adjudicator to be").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 24. When dealing with these amendments, it is necessary to say a word about the history of appeals to the Immigration Appeal Tribunal. Until the 1993 Act, there could be a further appeal to the Immigration Appeal Tribunal if there had been an error in law.

Let me remind those who do not remember the passage of that Act that it had two effects. First, it denied that further right of appeal to cases which were, in the words of the Act, "without foundation". But, at the same time, if the Home Office lost a case which was deemed to be without foundation, it allowed the Home Office still the right to appeal. In other words, the abolition of the right to appeal in certain respects was one sided in that the abolition applied only to applicants--appellants--and not to the Secretary of State. Not surprisingly, the result was an increase in the number of judicial reviews, which I am sure the Committee will agree is, in itself, whatever the reason, undesirable.

What is now proposed in the Bill is that a much wider range of fast-track applicants--those defined in sub-paragraphs (2), (3) and (4) in new Clause 1--under the terms of sub-paragraph (6) should be denied the right to appeal to the Immigration Appeal Tribunal.

30 Apr 1996 : Column 1505

I want to suggest to the Committee that because that is so much wider a basis of exclusion and because still the Secretary of State will not lose that right of appeal, it would be wrong to extend the provisions as widely as is proposed in sub-paragraphs (2), (3) and (4).

Therefore, the effect of Amendment No. 22 is to say that what are said to be "frivolous or vexatious" claims should have to be certified as such by the adjudicator. Amendment No. 24 ensures that the right of appeal to the Immigration Appeal Tribunal should apply, except to cases which have been certified by an adjudicator to be "frivolous or vexatious". In other words, we go very closely back to the position under the 1993 Act so far as that aspect is concerned.

The arguments for changing the position from the 1993 Act have been made in public by Ministers and were rehearsed in detail during the earlier stages of the Bill in another place. As we know, the fast track procedure is to apply to applicants from countries on the designated list, applicants under sub-paragraph (3) who fail the different passport tests and applicants under sub-paragraph (4) who fail a whole range of tests, including the test of being "manifestly fraudulent" or the test of being "frivolous or vexatious".

What difference does this aspect of the clause make? It is not just a matter of the appeal to the Immigration Appeal Tribunal; it is also a matter of the time allowed for the grounds of appeal to be stated, which is reduced to five working days. We know from the evidence of applications in recent months and years that a high proportion of cases which come to the special adjudicators would fall within the widened provisions of Clause 1. Indeed, until now there has been the provision that the Immigration Appeal Tribunal would allow a reference back to an adjudicator for rehearing and that 70 per cent. of Immigration Appeal Tribunal cases in 1994 made a reference back in that way.

Clearly the Immigration Appeal Tribunal has a significant effect. It has been referring cases back for further hearing; it has been indicating that the processes of the original application and of the appeal are defective in a significant number of cases and therefore that the work of the tribunal is of considerable importance in assuring justice in the consideration of asylum applications.

Therefore, if the Immigration Appeal Tribunal does a good job--as is shown by the facts--and if the effect of that is to reduce drastically the number of people who can avail themselves of the service of the tribunal, something must be wrong somewhere. It must be the case that a considerable number of people who would, if their appeals were heard by the Immigration Appeal Tribunal, have their cases referred back and eventually, in a significant number of cases presumably, gain admission and refugee status or exceptional leave to remain, will no longer be able to do so. For that reason in these two amendments it is necessary to attempt to restrict the denial of access to the Immigration Appeal Tribunal to those cases which are frivolous and vexatious and which have been certified as such by the adjudicator. I beg to move.

30 Apr 1996 : Column 1506

5 p.m.

Earl Russell: We are all wrong sometimes. I remember particularly one occasion when I rose in this Chamber and started speaking with great impassioned eloquence to the wrong amendment. I was rescued expeditiously and effectively by my noble friend Lady Williams of Crosby.

The fact that we can all make mistakes is the fundamental ground of the right of appeal. It is especially true in matters of law, and immigration law is extremely complex. It is in a state of perpetual Heraclitean flux. The possibility of error is always there.

One of the crucial roles of the Immigration Appeal Tribunal is to correct errors on points of law. In 1994 it corrected 270 appeals against the special adjudicator's dismissal of an asylum appeal; 200 of those were either allowed or remitted back for rehearing. That is to say, the tribunal corrected 200 errors of law in one year. That is a lot of errors of law. In a precedent-based system, an uncorrected error of law is capable of having a multiplying effect and affecting the determination of many subsequent cases. The keeping up of a body of case law in an area of this magnitude is extremely important. If there were no other reason, that would be a good reason for accepting the amendment.

It is important also not to be too certain that one is right at the first hearing of a case. I recommend to the Government the spirit shown in the case of a puisne judge whose children observed case after case of champagne being brought into the house. They said, "Mummy, what is all that for?" She replied, "Daddy has been upheld in the appeal court". That is the sort of surprise we should all be humble enough to feel.


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