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Lord Cope of Berkeley: I shall study carefully what the noble and learned Lord said. It sounded sensible enough and, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Persons ceasing to be exempt]:

[Amendment No. 20 not moved.]

Clause 6 agreed to.

Clause 7 agreed to.

Clause 8 [Removal of certain persons unlawfully in the United Kingdom]:

Lord Dholakia moved Amendment No. 20A:


Page 5, line 25, at end insert--
("( ) Directions may not be given under subsection (1) unless the Secretary of State is satisfied that all relevant factors listed in the immigration rules have been considered.").

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The noble Lord said: The purpose of Amendment No. 20A is to ensure that all a person's personal circumstances, as well as his immigration status, are fully considered before an order for removal is made. Under the current immigration rules, the Secretary of State must consider all a person's circumstances before making a decision to make a deportation order. These circumstances include factors such as age; length of residence; connections with the United Kingdom; domestic circumstances; personal history; compassionate circumstances; and representations received on a person's behalf. Those facts are then balanced against the public interest to be served in deporting a person.

They do not have to be considered where someone is to be removed as an illegal entrant under current legislation. To preserve the consideration where someone is to be removed for being in breach of the condition of stay will make the proposed changes less harsh and less open to obvious injustice. In order properly to achieve that, the changes should also include a review of the Secretary of State's discretion in such cases other than when a person is to be removed as an illegal entrant. I beg to move.

Lord Phillips of Sudbury: My noble friend Lord Dholakia has touched on the nub of the amendment. However, some members of the Committee might not be aware that as recently as 1988--if that is recent in legislative terms--the seven-year rule covered by the amendment was introduced. Prior to that, after the 1971 Act brought in the regime of immigration law, there was no such limitation. All persons subject to a deportation order had a right of appeal to the adjudicator, to the independent appellate authority, which was an enormous safeguard and of enormous value to the whole process of deportation, given the grave step which that is to those affected. With the 1971 regime came the merits rules referred to by my noble friend Lord Dholakia.

In 1988, that considerable protection for those being deported was massively reduced by saying that only those whose last leave to enter was more than seven years ago could make such an independent appeal to the adjudicator. It is well to remember that when that restriction on the rights of those being deported was imposed by the previous government, the present Government were extremely forceful--nay, vocal--in resisting the limit on appeal which that represented. Those of us on these Benches do not understand why the Government believe it necessary at this time to take away that right altogether. The clause does not protect so-called illegal immigrants--those who practice deception and so forth--but it takes away that crucial right in a relatively small number of cases where by definition those concerned have established a way of life here, often with families and in good jobs.

We believe that the Government should think again either by accepting the amendment or, as I would suggest, by removing the clause altogether because it is a sledgehammer to crack a nut. What is more, it is a sledgehammer that may damage the Government. It is unsafe to leave to an immigration officer the sole decision over such a crucial matter for families or

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individuals who have been here for at least seven years. As the current case of a gentleman in the City shows, the Government risk incurring extreme public displeasure about the perceived--or real--injustice of the circumstances.

I am sure that we are not alone in being strongly lobbied on the issue by the Immigration Law Practitioners Association, Justice and the Law Society. The Government should think again and at least allow the amendment. Deportations resulting from an unfair or unwise decision of an immigration officer can cause considerable ill will and hardship. Given the importance of the matter, there should be a right of appeal to an independent adjudicator who can sit back and look at all the circumstances. Like all other judges of merit, immigration officers will make mistakes sometimes. In those cases, the adjudicator would say, "This must not pass", and would allow an appeal.

Earl Russell: My noble friend Lord Phillips of Sudbury is correct to link Amendment No. 20A with Amendment No. 22. The length of time that somebody has been here is a material circumstance that can reasonably be taken into account when deciding whether to enforce a deportation order. There is a necessary link between those matters.

Deportation is a stringent power. It also entails considerable costs to public funds. If public funds are to be prudently managed, the power should not be employed with too much freedom. I am not certain how wide the powers of deportation conferred by Clause 8 are. We have to probe that a little to understand the need for the amendment. Under Clause 8(1)(b), somebody may be deported if,


    "he has obtained leave to remain by deception".

I understand the concern about deception in immigration law. In asylum law, it is a different matter and often people can operate only by deception.

If somebody obtained leave to remain by deception as a student on a course that they did not want to follow and then claimed asylum very shortly afterwards, would they come within the operation of Clause 8 in such a way that their asylum claim could not be heard? That would be a material circumstance. It would be unfortunate if that were the effect of the clause. That would introduce a further draconian power in a form in which not many people might notice it.

I wonder whether it does this country quite as much harm as is supposed to have a few people in it, such as the gentleman from the City whom my noble friend Lord Phillips of Sudbury mentioned, whose reasons for being here may be in some ways irregular, but who are doing no harm to this country and are living as virtuous citizens and making a considerable contribution to the country's welfare. I wonder whether the provisions are a proportionate use of government powers.

Baroness Gardner of Parkes: I intend to speak on the clause-stand-part Motion rather than on the amendments in particular, but I should like to know whether the provisions of Amendment No. 22, which relates to people who have been here for seven years or

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more, would include those who had managed to extend their time to seven years by appeal after appeal and had finally exhausted all their appeals.

The Earl of Sandwich: As I understand it, it has been Labour Party policy that all asylum seekers have a proper right of appeal. In the Special Standing Committee in another place the junior Minister appeared to give a commitment that there would be changes in immigration rules to that effect. I refer to cols. 584 and 585 of the relevant Hansard. On the sledgehammer theory, has not the chief adjudicator said that the measure will cause no more than a negligible reduction in the backlog?

6.15 p.m.

Lord Cope of Berkeley: I shall leave it to the Minister to respond on the main points in the amendments. New Labour seems to have changed its mind in our direction since the passage of the Asylum and Immigration Act 1996. With all the enthusiasm of converts, the Government have gone a little further. I find it difficult to object to that in principle, but I shall be interested to hear the Minster's response to the main points.

I should like to say a word or two about Amendment No. 25, standing in my name and that of my noble friend Lord Astor, which is intended to ensure that the clause does not inadvertently introduce retrospective invalidation of expired leave. I hope that it is only a drafting error or an error on my part in reading the clause and trying to fathom its meaning. We all dislike retrospective legislation. However, without the amendment, the clause could be used retrospectively. I understand that the point was raised in Committee in another place, but the Minister did not have an opportunity to respond because of the large number of points being made at the time. It is a valid point, if small in comparison with the main thrust of the amendments.

Baroness Williams of Crosby: As some link has sensibly been made between Amendment No. 20 and the subsequent amendments, particularly Amendments Nos. 21 and 22, perhaps it would be for the convenience of the Committee if I address Amendment No. 22 briefly.

Baroness Gardner of Parkes: Perhaps the noble Baroness has not realised that they are linked on the groupings list.

Baroness Williams of Crosby: On my list, Amendment No. 20 stands on its own, followed by Amendments Nos. 21 and 22 and the others.

Lord Cope of Berkeley: Amendment No. 20 was not moved. The noble Baroness is talking about Amendment No. 20A.


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