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Lord Avebury: My Lords, the Minister said that a person who required an entry certificate would not be granted one but would be expected to apply again at the port of entry and put in a new application for asylum. How does that person get on an aircraft or other means of transport because, by definition, he has a refusal stamp in his passport and when he goes to book a ticket, the airline or other carrier will obviously decline to take him as a passenger fearing that if it does so it will be surcharged on refusal? Will the Minister explain how the successful applicant who is in Italy will be able to get on an Alitalia flight in order to come to London without an entry certificate?

Baroness Blatch: My Lords, I repeat that part of what I said in my response to the noble Lord, who

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clearly missed it. Paragraph (c) of the amendment provides for a direction requiring the Secretary of State to arrange the successful applicant's passage back to the United Kingdom and to bear the costs. In the great majority of cases, it should be possible for the individual concerned to make his own way back to the United Kingdom. But we accept that there may be wholly exceptional circumstances where the adjudicator believed that a successful appellant had no funds and no means by which to return to the United Kingdom. If so, the adjudicator could direct the Secretary of State, under Section 19 of the 1971 Act, to make the necessary arrangements, including the financial arrangements required to give full effect to the decision to allow the appeal. No further legislative provision is required to clarify the point.

But, beyond that, what happens to the person once he is in this country as regards rights of entry is a matter for the Secretary of State and not a matter for the adjudicator.

Lord Avebury: My Lords, I am sorry but the Minister did not understand what I was asking. I am asking about the remarks which she made when she said that an entry clearance could not be a subject of direction but that the successful appellant had to come back to this country and lodge a fresh application for asylum at the port of entry. How would that person be able to book a ticket with any of the carriers when the carriers would know that that person had been refused leave to enter the United Kingdom on a previous occasion and would therefore be in fear of being surcharged if that person was again refused leave to enter on the second arrival at the port of entry?

I take the example which the Minister gave that the person was sent to Italy and the adjudicator found that Italy was not a safe place for that person. Therefore, he seeks to get on a plane in Rome to come back to London. He has the money to pay for the ticket--it is not a question of money--but, when he goes into the Alitalia ticket office and the staff there look at the passport and see the stamp of refusal, he will not be issued with a ticket because of the fear of being surcharged. How does that person get back to Heathrow or wherever he came from in the first place in order to lodge the fresh application for asylum?

Baroness Blatch: My Lords, with the leave of the House, I am sorry if I misunderstood the point made by the noble Lord. In that case, he would need a visa waiver and we would issue one.

Lord Dubs: My Lords, that is extremely helpful not only in the original speech which the Minister made but also the further point of clarification which she made in reply to the noble Lord, Lord Avebury.

I thank the Minster for clarifying an area in which there was doubt and for doing so in such an extremely helpful way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

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Lord McIntosh of Haringey moved Amendment No. 35:


After Clause 3, insert the following new clause--

Adjudicator's recommendation

(".--(1) In Schedule 2 to the 1993 Act, after paragraph 3 there shall be inserted the following paragraphs--
"3A. Where a special adjudicator confirms a refusal, variation, decision or directions against which a person has appealed on the grounds mentioned in subsections (1) to (4) of section 8 of this Act, he shall determine forthwith whether there are other circumstances which, in his opinion, justify allowing the person to enter or not requiring the person to leave the United Kingdom.
3B. If a special adjudicator determines that there are such circumstances, he shall direct that the Secretary of State shall grant leave for the person to enter the United Kingdom if he has not already been granted such leave and to remain in the United Kingdom for as long as those circumstances shall continue to exist."
(2) In paragraph 4(1) of Schedule 2 to the 1993 Act, after the words "section 8 of this Act", there shall be inserted the words "and paragraph 3A of this Schedule".").

The noble Lord said: My Lords, in a sense, Amendment No. 35 could have been taken with Amendment No. 33, because it refers to the same kind of issue, but this amendment must come after Clause 3 rather than as part of it because it refers to the role of the special adjudicator and what happens when he confirms a refusal, variation, decision or directions against which a person has appealed.

The position at the moment is that the adjudicator can allow an appeal only, as I understand it, if he finds that the appellant is a refugee as defined by the 1951 convention. If the adjudicator finds that the appellant qualifies to stay here under any other international treaty, such as the European Convention on Human Rights, he cannot allow an appeal because that is not within the scope of his terms of reference, even if he believes that the appellant would be likely to suffer if removed for anything other than a convention reason or if he believes that the appellant should be allowed to remain here for other compassionate reasons, such as ill health. In other words, the exceptional leave to remain provision, which, after all, accounts for the majority of people who actually stay in this country after going through the asylum claim procedure, is outside the scope of the special adjudicator. We are suggesting that the special adjudicator should be given power to direct that the Secretary of State should grant leave for the person to enter the United Kingdom if he has not already been granted such leave, and to remain here so long as the special circumstances continue to exist.

The Government will no doubt tell us that it is rare for the Home Office to reject the view of the special adjudicator, but I understand that there are a significant number of cases in which the Home Office does reject the view of the special adjudicator. That can and does lead to judicial review. So what we are saying is that it is logical and rational for the special adjudicator to have the full range of options, which includes a direction that leave be granted. We recognise that if the special adjudicator does so the Home Office can appeal against that judgment, but we believe it is necessary, particularly in view of the prospect of an increasing

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number of accelerated cases, that these additional powers for the special adjudicator should be granted. I beg to move.

Baroness Blatch: My Lords, this amendment would represent a fundamental and unacceptable departure from the existing role of the special adjudicator. The adjudicator's role is to oversee the correct application of immigration and asylum law, as set out in primary legislation and the immigration rules. In other words, the adjudicator is there to apply the rules fairly. Applicants appeal to the adjudicator on the grounds that their rights under the legislation have not been complied with. The exercise of discretion in favour of applicants who do not meet the statutory immigration or asylum requirements is the proper preserve of the Secretary of State. This is because discretion has to be exercised in the context of the Secretary of State's responsibility for maintaining the effectiveness and integrity of immigration control. Individual compassionate factors always have to be weighed against that wider responsibility. Adjudicators have no such responsibility, and that is why they have the power to issue binding directions only in cases where an appeal is allowed and only for the purpose of ensuring that a determination based on the rules is given effect.

The amendment is in any case unnecessary. It overlooks the fact that the question of whether exceptional leave should be granted is already built into the initial consideration process. Anyone refused asylum has had the case for exceptional leave fully examined. Moreover, the adjudicator can of course, if he dismisses the appeal, make a recommendation, including the recommendation of exceptional leave. I can assure the House that all such recommendations are carefully considered. Furthermore, it is our current policy that only officials at senior executive officer level or above are normally authorised to decide not to comply with recommendations in asylum cases.

If the adjudicator's recommendation arises from exceptional compassionate circumstances which have not previously been considered and which would genuinely merit the exercise of discretion outside the immigration rules, then we would act upon a recommendation. We believe that that is a perfectly reasonable policy. Therefore, I again urge noble Lords not to press the amendment.

Lord McIntosh of Haringey: My Lords, the last part of the Minister's reply was especially interesting. Of course, it is common ground between us that the adjudicator can make recommendations and it is valuable to have on the record the assurance that, if there is any question of the recommendations not being accepted, it will be a senior immigration officer who will be responsible for such a decision. The Minister is right to say that the integrity of our immigration procedures is the responsibility of the Secretary of State, but our purpose in moving the amendment was to clarify the concerns about the powers of the special adjudicators which, I have to say, have been expressed not only in this amendment but also by adjudicators and special adjudicators in evidence to the Glidewell Panel.

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It have been a valuable to have elicited that answer. I am not claiming that we have elicited anything new, but the Minister has been very clear and helpful in her response. In the circumstances, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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