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Lord Falconer of Thoroton: The noble Lord did ask that. I cannot give an answer off the top of my head. Perhaps I may write to the noble Lord in relation to that matter.

Lord Cope of Berkeley: I am grateful for the noble and learned Lord's explanation. It was clear and, as far as I am concerned, sounded acceptable. I am still a little confused about what is a "variation" as opposed to a new application. I give an example. A female student may come here on that basis to study, and has leave for a certain time. During that time she marries her British boyfriend and the couple decide that they want to go on living in this country. In that case, she needs not only a variation, as it were, but permission on a new basis. She is now applying as a married woman, or a potentially married woman, to stay on account of her marriage and not because of anything to do with her student application, which would obviously be temporary. I understand that she would have to fill in different application forms; she would have to fill in application form FLRM for permission to stay as a married woman, whereas she would have previously filled in FLRS, which is a student application. That sounds to me like a new application but, from what the noble and learned Lord said, it would be treated as a variation. I should be grateful for a little more enlightenment on that matter.

Lord Avebury: Perhaps the Minister will at the same time deal with a case of a female student who, rather than getting married, wishes to continue to study for a PhD. Having first of all applied to come here to study for a degree, of course, she would have signed a declaration that she undertook to leave at the end of the course of studies. But she does extremely well at university, she looks like getting a first-class degree; her tutors recommend her to go on and study for a PhD, so she puts in an application to vary her leave to remain so that she can stay at the university for another two years. Is that a new application, or is it a variation of leave to remain for educational purposes?

Lord Falconer of Thoroton: In all of these cases, it is quite difficult to identify where the line is to be drawn. I am wary of setting out in an answer to these particular examples precisely where the line is to be drawn. Where one is putting forward completely new grounds for wanting to stay, I expect that it would normally be a new application. Perhaps I may study what both noble Lords have said and write to them in order to give a considered answer.

Lord Cope of Berkeley: We are happy to give leave for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 3 agreed to.

Clause 4 [Charges]:

Lord Falconer of Thoroton moved Amendment No. 10:

Page 4, line 4, at beginning insert ("If a fee is prescribed in connection with an application of a particular kind,").

The noble and learned Lord said: In moving Amendment No. 10 I shall speak also to Amendments Nos. 11, 18, 43 and 54. All of them are drafting amendments.

Amendments Nos. 10 and 11 reinforce subsection (4) of Clause 4 and reflect the fact that there will not be prescribed fees for applications which are to be free of charge. As to Amendment No. 18, it is considered that the definition in subsection (6) is not required. With regard to Amendment No. 43, as Clause 23 stands at present it is not on its face clear whether the offence under Section 25(1)(b) of the 1971 Act is disapplied where a person meets both paragraphs (a) and (b) of the new subsection (1A) or whether it is meant to be an "either/or". Amendment No. 43 simply makes clear that it is an "or".

Amendment No. 54 is an example of the benefit of examination in Committee since it derives from an amendment proposed in another place which the Minister, Mr O'Brien, agreed to consider. New Section 25A of the Immigration Act 1971, inserted by Clause 31, provides the power to detain a relevant ship, aircraft or vehicle when a person has been arrested for an offence under Section 25(1) of the Immigration Act 1971. Paragraphs (a) and (b) of Section 25A(1) allow detention to continue, barring any intervention from the court, until a decision is made whether or not to charge the arrested person or, if charged, until he is acquitted or convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle.

As currently drafted, Clause 31 makes no provision for the eventuality that the charges are withdrawn or dismissed. Amendment No. 54 provides for that outcome. I commend all the amendments to the House. I beg to move.

Lord Cope of Berkley: They seem a rather motley collection of drafting amendments. Nevertheless, each one seems acceptable.

Baroness Williams of Crosby: I shall be a little more critical than the noble Lord, Lord Cope of Berkeley. It is very hard to understand in any lay sense that Amendment No. 10 satisfies the requirements that have been pressed very hard, and to which the Government have committed themselves, with regard to respect for the European Convention on Human Rights and for the Geneva Convention 1951. It may be that that phrase satisfactorily indicates that no fees will be charged in these cases, but the reason my colleagues and I will be bringing forward Amendment No. 13 is because it is very unclear to us that Amendment No. 10 achieves that end. Perhaps the noble and learned Lord will be kind enough to explain.

Lord Falconer of Thoroton: The only effect of Amendment No. 10 is that there will not be prescribed

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fees for applications which are to be free of charge. As a matter of drafting, it makes the point that if it is free, it is free. When we get to Amendment No. 13 we will discuss the matter. As to the ECHR point, the amendment is indicating that there will be certain that are free. It does no more than say that if they are free, there will be no prescribed charge.

Baroness Williams of Crosby: I wish to be sure I am not confused. Is the noble and learned Lord saying that, in effect, this does not indicate that clearly in those categories there will be no fee; it just gives the right to charge no fee in certain cases?

Lord Falconer of Thoroton: What it says is that there will be no prescribed fee for applications which are to be free of charge, although it leaves it open as to the particular kind of application. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 11:

Page 4, line 5, leave out ("prescribed").

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 12:

Page 4, line 7, at end insert ("where, without prejudice to the foregoing generality, the applicant has--
(a) insufficient means to pay any prescribed charges; or
(b) the applicant is below the age of 16 years; or
(c) the applicant is in receipt of any benefit").

The noble Lord said: If the noble and learned Lord is to respond to this amendment as well, I have high hopes, as it was suggested to me by the Law Society of Scotland. Hence my noble and learned friend Lord Mackay of Drumadoon was also prepared to support it. It is suggested that we should discuss with it Amendment No. 13, in the name of the noble Baroness, Lady Williams, and Amendments Nos. 14, 15 and 16.

All these amendments refer to the question of fees and charges being made. Amendment No. 12 attempts to ensure that those who do not have access to the necessary money to pay such fees are not prejudiced in their rights to apply for leave to remain, variation, or whatever. Access to those rights should not be restricted to those who have the ability to pay. That is the bottom line of the case, and it has strong moral backing. We all agree that genuine asylum seekers, for example, should be able to come to this country. The proposal has, in addition, the backing of the 1951 convention. Our international obligations seem to suggest that we should not try to keep people out merely because they cannot pay the fees. I shall leave the noble Baroness to speak to Amendment No. 13, which would have a similar effect.

Amendment No. 14 suggests that no fee should be payable by those granted leave to enter or remain as students. It is an important provision. This country has a long tradition of admitting people from abroad to institutions of higher learning. It has been of great benefit--not only to the countries from which such students come, but also to this country--that they have received an important part of their education here. Many

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go on to become leaders in their own countries and retain a sympathy for this country and its views as a result of time spent at university here or otherwise studying. A very good case in point is that of King Hussein, whose memorial service I attended last week in St Paul's cathedral. He retained a sympathy for this country throughout his life as a result of having attended Sandhurst. That is an extreme example, but there are many others at a lower level.

Amendments Nos. 15 and 16 both flow from the report that we discussed earlier of the Delegated Powers and Deregulation Committee. That committee--which is rightly held in high esteem in this House--accepted the argument as regards the general wording of the clause. However, the committee considered that the exemption from fees of asylum seekers under the 1951 refugee convention and those claiming Article 3 ECHR protection should be placed on the face of the Bill. There is a good argument for that.

The committee referred to a suggestion in the Home Office's explanatory memorandum to the Bill that there should, for example, be no fee where the application has been occasioned by a mistake of the Secretary of State. I take that to mean the Secretary of State or one of his officials. That seems exactly right. Rather than leaving it merely to the charity, as it were, of the Secretary of State to relieve an applicant of the fee in that case, the committee believed that it would be manifestly unjust for a fee to be paid in those circumstances and that that proviso should also to be on the face of the Bill. That argument seemed to me to carry weight; therefore, I tabled Amendment No. 16. I beg to move.

5.15 p.m.

Baroness Williams of Crosby: First, I strongly support the noble Lord, Lord Cope of Berkeley, in moving his Amendment No. 12. We on these Benches fully agree with its attempt to limit the effects of any fees that may be charged in such a way that income does not become the criterion of whether one has the right to enter this country. That is surely a principle with which the present Government would not wish to be associated. Having indicated our strong support for Amendment No. 12, I want to underline the reasons why we believe it to be inconceivable that the Government should not accept Amendment No. 13.

In Committee in another place, the Minister said:

    "I can give a clear and categorical assurance that no fee will be levied on applications under article 3 of the ECHR or under the 1951 convention for granting refugee status".

That was confirmed in a letter from the Minister to the noble Lord, Lord Clinton-Davies, which stated:

    "Let me assure you that the Government is fully committed to ensuring that the United Kingdom continues scrupulously to observe its obligations to refugees under the 1951 Geneva Convention".

Both of those points were then taken up by the Select Committee on Delegated Powers and Deregulation. The committee strongly advised as follows:

    "We consider, however that Clause 4 should be amended to place on the face of the Bill the exemption from fees of asylum seekers under the 1951 refugee convention and those claiming Article 3 ECHR protection".

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So there is a clear commitment, stated on more than one occasion, by Her Majesty's Government.

Secondly, there is a clear statement by the Select Committee on delegated legislation that this provision should properly be on the face of the Bill, and not simply be buried in a series of commitments that will be carried out over the years in orders and regulations. Thirdly, it is completely clear that both the refugee convention and the European Convention on Human Rights make it plain that any charging of a fee would be seen to be effectively in derogation from those conventions and commitments. Indeed, I note that Justice went as far as to claim that this would be ultra vires of those commitments. Not being a lawyer, I am not in a position to say whether that is correct.

In relation to Amendment No. 13, I strongly urge the Government to state specifically on the face of the Bill that they will carry out those commitments in full, and will do so by making it plain that no fee of any kind should be charged to those who seek entry to this country under the terms of Article 3 of the European Convention or the refugee convention.

There are two other parts to the amendment. The first concerns family members. I accept that they do not come under the terms of the European convention or the refugee convention as such. Nevertheless, it has always been the policy of this and previous governments to accept family unification as a very desirable objective. It must be remembered that family members seeking to join others who are already settled in this country will already, under present arrangements, have paid a fairly hefty visa fee amounting to £240 per person. If they have been given the normal one year's leave to remain and they must pay all over again for the right to stay as family members--it having been accepted in principle that they should be allowed to do so--that is a very heavy fine on the reunification of families.

In the case of many families a fee of £240 per head will already be a very difficult charge to meet. If on top of that a further fee is charged for family members, that may well present a barrier to the reunification of families, which I am sure cannot be the intention of the Government.

Many of those who are settled here already are not particularly well off and do not command high wages. They may have to pay substantial sums for the cost of bringing family members to this country legally, possibly from southern Asia, Africa or other parts of the world. Therefore, I hope that the Minister can make a clear statement that those family members who have already been charged for visa applications--he may want to set a period; for example, within the previous 24 months--should not be made to pay a further fee to enable their families to be reunited.

The noble Lord, Lord Cope of Berkeley, referred to students who form the last group referred to in my amendment. That part of the amendment is concerned with those who seek the right to remain here to continue their studies. It is worth saying that higher and further education have become two of the most successful and economically advanced sectors of our economy that provide substantial employment to a large number of

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people. Therefore, it would be wise not to charge fees to those who seek to pursue bona fide studies in this country.

I conclude with a question. In the Explanatory Notes relating to this clause the Home Office says that the full cost of processing may be the basis on which fees are charged. It would be very helpful if the Minister could give the Committee some indication of the basis on which fees will be charged. If the full cost of running the immigration department is shared out among those fees in such a way as to cover a substantial part of that cost, it would be, to say the least, extremely unfair that those who attempt to reach this country as asylum seekers or refugees should meet the costs of the mistakes relating to computers. While I fully accept that those mistakes are not the responsibility of any one government, it would be unfair and unjust that refugees and asylum seekers should have to pay for those very large costs. Perhaps the Minister can let us know his intentions and say whether he is able to accept at least the first part of this amendment in line with the recommendation of the Delegated Powers and Deregulation Committee.

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