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Page 2, line 23, at end insert ("and--
(a) he seeks to rely on an enforceable Community right or any provision made under section 2(2) of the European Communities Act 1972, or
(b) he seeks to enter the United Kingdom under immigration rules making provision about entry--
(i) to exercise rights of access to a child resident there,
(ii) as the spouse or fiance of a person present and settled there, or
(iii) as the parent, grandparent or other dependent relative of a person present and settled there.").
Page 2, line 25, at end insert--
("(4) In this section, "immigration rules" has the same meaning as in the Immigration Act 1971.").

On Question, amendments agreed to.

7.30 p.m.

Clause 4 [Determination of Appeals]:

Baroness Anelay of St. Johns moved Amendment No. 4:

Leave out Clause 4 and insert the following new clause--

Determination of Appeals

(" .--(1) The Special Immigration Appeals Commission on an appeal to it under this Act--
(a) shall determine only the issue relating to the contention that the appellant's admission to or stay in the United Kingdom is not conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for reasons of a political nature; and
(b) if it allows the appeal--
(i) shall remit it to an adjudicator or special adjudicator as appropriate to determine the remaining issues under the applicable provisions of Part II of the Immigration Act 1971 or the Asylum and Immigration Appeals Act 1993 as appropriate; or
(ii) depending on the circumstances of the appellant may, after allowing the appeal, remit the matter to the Secretary of State to consider the appellant's immigration status.
(2) For the purposes of section 1(a) above the Commission shall allow the appeal if it considers that the decision or action by the Secretary of State or an officer (in the interests of national security

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or of the relations between the United Kingdom and any other country or for reasons of a political nature) is not justified viewed in the context of the facts existing at the date of hearing of the appeal.
(3) For the purposes of section 1(b)(ii) above there shall be a right of appeal under Part II of the Immigration Act 1971 against any further refusal of the appellant's application by the Secretary of State.").

The noble Baroness said: My Lords, I have tabled this amendment to try to resolve a problem created by the wording of the amendment tabled by the Minister in Committee which now forms Clause 4. Having studied the Minister's speech carefully in Hansard, I believe that there are problems not previously identified which follow upon the application of Clause 4 to immigration appeals which fall within the scope of the Bill. In their efforts to prevent the Home Secretary from having a right of appeal from the decision of the commission, the Government seem to have cut away at the existing avenues of appeal available to those who seek to remain here. I hope that this is an unintended result of the new Clause 4 and that the Minister will be able to reassure me on the matter.

I do not in any way impugn the ability of members of the commission to make decisions which may properly fall within its scope of decision. I question what that scope of decision should be. I am aware that at Committee stage the Minister went further than the remarks that I have just made about the commission. He said:

    "We have absolute confidence in the independent review".--[Official Report, 23/6/97; col. 1435].

Strong words indeed. I wonder whether the appellants will endorse that view in times to come.

The objective of my amendment is to provide that in all cases, including asylum appeals, once the national security issue is determined in the appellant's favour, the matter should be referred to the appropriate appellate authority to proceed to hear the case on the remaining immigration/asylum issues in the normal way under the scheme of appeal contained within the Immigration Act 1971 and the Asylum and Immigration Appeals Act 1993.

The amendment which now forms Clause 4 of the Bill reproduces the whole of Section 19 of the 1971 Act. The essence of my objection is that to empower the commission to allow an appeal if the decision of the Secretary of State appears not to be in accordance with the law is a far wider remit than for the commission to consider the validity and cogency of the facts upon which the Secretary of State has decided that the appellant's presence is not in the interests of national security, etcetera. Was this really the outcome intended by the Government? In any event, what points of law are envisaged when the decision of the Secretary of State will have been taken on the facts and evidence known to him at the time and his judgment is as to whether they justified the exclusion of the appellant on the grounds of national security?

At the moment there is no provision for the commission to remit other outstanding immigration issues, that is, non-national security matters, to an adjudicator or back to the Secretary of State. Does that mean that the commission would be expected to

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determine such other issues as well as that of the exercise of the discretion of the Secretary of State on the grounds of national security? If so, the appellant is at a disadvantage because there is no right of appeal beyond the commission, unlike to the Immigration Appeals Tribunal and Court of Appeal under the Immigration Act 1971 and the Asylum and Immigration Appeals Act 1993 for other applicants. Even a right of appeal from the commission would not be as satisfactory as the power to remit the issues back to an adjudicator or to the Secretary of State. Is it the Government's intention that the commission should remit such matters? If so, why is that provision not in their new Clause 4?

My amendment seeks to find a possible way to resolve the problem that I have outlined. The amendment provides that when the commission determines appeals under Clause 2 it should deal only with the issue of national security or the relations between the United Kingdom and any other country or reasons of a political nature and whether the Secretary of State's discretion should have been exercised differently in the light of the facts at the date of the hearing. It is my intention that it is only in appeals under Clause 2(1)(g)--cases involving asylum--that the commission should balance the considerations of national security with those of the fear of persecution or torture if the appellant were to be returned to the country of origin, along with any compassionate circumstances relating to the claim for asylum, and allow the appeal if the considerations of fear or persecution or torture override the threat to national security.

Where an appeal is allowed on an appeal which falls within the definitions of Clause 2(1)(a) to (f) the remaining issues should be remitted to an adjudicator to determine the remaining non-asylum issues in the usual way under the provisions of Part II of the Immigration Act 1971. Where an appeal is allowed on a Clause 2(1)(g) appeal the commission should give directions and/or make recommendations as it sees fit in order to give effect to the determination.

I am aware that the Minister may find my drafting wanting in giving effect to my intentions, but I hope that I have made my intentions clear. I hope that this amendment will be seen as opening up a way forward that may be adopted by the Government at Third Reading or when the Bill reaches the Commons. I beg to move.

Lord Lester of Herne Hill: My Lords, the proposed amendment would frustrate the central aim and object of the Bill which I take to be to secure compliance with the judgment of the European Court of Human Rights in Chahal and the European Convention by a method that is orderly and efficient and respects the need not only to secure convention rights but to protect the public interest in national security. The category of appellants whom we are considering is those who fall within Clause 2. I hope that I shall not cause offence if I define them simply as suspected terrorists for short because there will be others, but it makes it clear that we are dealing here with a very exceptional class of people.

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The question that we are considering is: what should be the scope of the jurisdiction of the special immigration appeals commission in relation to that exceptional and special class of cases? We are told that it will involve probably no more than two or three a year. Under Clause 4 as it stands, without the amendment the commission has the jurisdiction to determine all of the relevant issues of law and fact and to give a binding decision upon them on the merits. In my view, that is what is required by Article 13 of the convention--the requirement that there be an effective domestic remedy and that it has been implemented sensitively with a special procedure. I would have thought that the noble Baroness would have been pleased with it because it does not treat the matter as an ordinary criminal trial. Given that we are dealing with suspected terrorists, it seeks to balance the rights of the appellant against the need for national security.

The amendment of the noble Baroness would fracture the commission's jurisdiction into splinters. The commission would be confined to addressing only the "non-conducive to public good" grounds--national security. The matter would then have to be remitted to the adjudicator to deal with the other legal issues or the Home Secretary to make a discretionary decision about the appellant's immigration status. That would be an unnecessarily complicated and fractured procedural framework. I see no good reason why the jurisdiction should be fractured, especially when the commission will be composed of someone with great judicial experience and the chief immigration adjudicator himself--the person at the hierarchy of the immigration appeal system. Moreover, under the amendment as I read it, the commission's decision would not be legally binding on the Home Secretary. By knocking out Clause 4 and substituting this amendment that too would not comply with the convention. Further, the commission would have to consider the appeal wearing blinkers. Because under the amendment it could consider only the facts existing at the date of the hearing of the appeal, which is a defect. I cannot for the life of me understand why this complexity should be regarded as somehow necessary or giving greater rights to the individual in a way that would meet the requirements of the Bill as a whole. For those reasons, I should be sorry to see this clause replace Clause 4 in its present form.

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