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I reinforce what my noble friends Lord Phillips of Sudbury and Lord Russell have said about those who have been here for seven years or more. I ask the Government carefully to consider excluding those who have been here for seven years or more from the possibility of being deported because their position when they came to this country was not fully regular.
There are two arguments for that. First, the Government have a large backlog to deal with and it would be sensible to deal with some cases relatively rapidly. The second reason is perhaps much more important; that is, that it seems to me probable that if the Government engage in a fairly wide-scale deportation of people who have been here for more than seven years, there will be a great strain on relations within that community. Some years ago, in 1988, the right of appeal for those who had been living here for less than seven years was removed. Alun Michael said that it would harm people who had humanitarian reasons for wanting to remain in the UK. Those people may have families here; they may have been here for many years and have no links overseas; or they may be doing valuable jobs in the community.
The Minister will be aware that on several occasions when people who have been resident in this country for many years have been identified for deportation, they have been often followed by pleas from the community to make an exception in those cases. In some instances their children have been largely educated in this country; their friends, their comrades and associates are all here. In other cases, the parents themselves have become crucial and helpful members of the community. In the minds of many communities no clear distinction will be made between those who happen to be Britons of either Caribbean or Asian origin, and those who have been here for long enough to seem to be a full and stable part of the community. I am not arguing that people who deliberately break immigration rules should be treated in any particularly kindly fashion. However, I believe that those who came a long time ago, who were allowed into this country and who then settled down and in some cases are "aware overstayers" have, in a sense, established their bona fides partly by the contribution which they have made to this country.
In many cases, the cruellest part would be the inclusion of family members in any act of deportation. In some cases, those family members have in no way been responsible for any aberration in terms of immigration rules. They may be under the age of 16 and therefore legally have no responsibility for the situation. In some cases, they may be spouses who have no relationship at all to the country to which they are being deported. Therefore, I ask the Minister to look carefully at this amendment, which would exclude from the provisions for deportation people who have stayed more than seven years.
The Lord Bishop of Ripon: I support the amendment of the noble Baroness, Lady Williams of Crosby. I shall speak to a matter which may be slightly peripheral to it, but which nevertheless seems to me to be at the heart of Clause 8; that is, the seriousness of the British Government in intending to remove from the United Kingdom illegal immigrants or others who should not be here.
Perhaps I may tell a story to make my point. Some years ago I set up an exchange of young people between my diocese and the two dioceses in Sri Lanka. Eight young people from Sri Lanka came to Yorkshire and spent a month there. At the end of that period they moved down to London before finally flying back from Heathrow. On the last night, one of the eight, who was a Tamil, left the hotel at which the group was staying and did not return. He did not turn up for his flight. He was quite clearly an illegal immigrant, and it seemed to us that from the moment that he became part of the group he had always intended to take that step.
I was placed in a position of considerable embarrassment. The Minister concerned wrote to me with a sharp rebuke in the light of the fact that I had guaranteed that they would return. Some months later, I found the address of this person. I passed the address to the Home Office Minister concerned. I was surprised then to find that no action was taken. Removal did not in fact take place, although the address was known and the circumstances were perfectly clear.
When I asked why that was, the answer I received from a number of people was simple: "It is not that we want to remove all such people; it is simply that we want the power to remove in order to make it clear that such people are not welcome and to send the message that they should not attempt such action". Therefore, I ask how serious the Government are in the implementation of Clause 8.
By contrast to that story, if we take the circumstances of someone in the position outlined by the noble Baroness, Lady Williams of Crosby, it seems to me that, despite what the noble Baroness, Lady Gardner of Parkes, said, there is a total difference between the two sets of circumstance. By whatever means a person has managed to remain here for seven years, it is undoubtedly the case that strong links are built up in the local community. There may be family links and young people who are being educated. For all sorts of reasons, there may be a presumption that such a person has, in some way or another, become part of the community. It therefore seems to me to be right that under the provisions of Clause 8, it should not be possible to remove summarily a person in those circumstances who has been here for more than seven years.
I understand that a number of concerns have been expressed. I believe that some of them may have been based on a misunderstanding and a misapprehension of, first, what happens now, and, secondly, what is intended here.
I shall deal with the amendments in what seems to be a sensible order. First, I am grateful to the noble Lord, Lord Dholakia, for his explanation. During the discussions in Committee in another place, the Parliamentary Under-Secretary of State gave an undertaking that the immigration rules would be amended to specify that those factors which are currently taken into account when deciding whether or not to make a deportation order would have to be taken into account when deciding whether or not to remove someone under the powers contained in Clause 8. The amendment in the name of the noble Lord, Lord Dholakia, would require only that the Secretary of State should be satisfied that that has in fact been done. If the requirements of the immigration rules have not been complied with, any decision to remove is not lawful. I believe that the noble Lord, Lord Dholakia, may have achieved his purpose in my reiterating that undertaking given in another place. I therefore hope that the noble Lord, having achieved his objective, will accept my reassurance that his amendment would not add any additional safeguards.
Looking ahead, I also hope that I may say at this stage that the amendment in the name of the noble Lord, Lord Dholakia, which seeks to insert a new clause after Clause 8, is not necessary for the same reason.
The first of the amendments in my name relates to Clause 7, which we considered earlier. It makes provision for a scheme under which someone who has overstayed their limited leave to enter or remain will be able to regularise immigration status by applying for leave to remain. Successful applicants will be granted leave. Unsuccessful applicants will retain their current appeal rights against a decision to deport.
I turn to the question raised by the noble Baroness, Lady Williams of Crosby. Clause 7 specifies that the regularisation period must be not less than three months, and that Clause 8 comes into force on the day after it ends. To take the noble Baroness's point further, an application can be made at any time during that period. That means that there will almost certainly be some cases which will not have been decided when the regularisation period ends and Clause 8 comes into force.
Subsection (2) of Clause 8 protects overstayers who have applied under the scheme from administrative removal under the new powers contained in subsection (1). As currently drafted, the clause suggests that that protection will last only as long as the application remains outstanding. Once an application has been decided, anyone whose application has been refused will be liable to removal as an overstayer if Clause 8 is enforced at that stage. That is not what was intended. Paragraph 5(2) of Schedule 14 makes it clear that the deportation procedure and the right of appeal will continue to operate for those whose applications under Clause 7 are unsuccessful. When someone applies
The amendment tabled in the name of noble Baroness, Lady Williams of Crosby, seeks to amend Clause 8(2), I believe to preserve what she would see as the more generous right of appeal against deportation currently enjoyed by someone who last entered the United Kingdom more than seven years before the date of a decision to make a deportation against him.
This amendment will not achieve that. That would require further amendments preserving Sections 3(5)(a) and 3(5)(aa) of the 1971 Act and Sections 15 and 17 of that Act. Some provision would need to be made so that a person who entered with leave more than seven years before commencement and who then had a comprehensive one-stop appeal under Part IV of the Bill (at which the issue of removal was considered) would then get a further right of appeal against the decision to make a deportation order.
At present, we are considering Amendment No. 22 which, in isolation, would mean that there would be no power under immigration law to remove from the United Kingdom someone who had entered more than seven years before the commencement of the Bill except on conducive grounds or following a court recommendation that they should be deported. The Bill, as drafted, repeals the present powers under which overstayers are removed. Accepting Amendment No. 22 would mean that the new powers in Clause 8 could not be used against them either.
I cannot accept the amendments, therefore. I repeat: the effect of Clause 7, taken with paragraph 5(2) of Schedule 14, is that the present rights of appeal against deportation are preserved for any overstayer who applies for leave to remain under the arrangements provided for by Clause 7. We specifically introduced that provision because the Secretary of State was responding to concerns in the course of discussions in another place. We see them as sufficient safeguards. As I have said, if someone has overstayed and wants to preserve his present right of appeal against deportation, he needs to apply under the Clause 7 arrangements.
I turn to one or two specific matters. The right reverend Prelate asked how serious we are about the removal of those who have no claim to remain here. We try to deal with every claim according to its individual circumstances. I have already indicated that we shall be considering the immigration rules in the general context of the Bill.
I repeat that we shall consider the circumstances of an individual before removal under Clause 8, as we do at present before deportation and as we do with illegal entrants, even though there is no requirement under the rules. The relevant rule is Rule 364 of the immigration rules. That will be amended to cover those who will be
A person will always have an in-country right of appeal by virtue of Clauses 55 and 59. Perhaps I may just touch on that point briefly as it is one about which the noble Earl asked me earlier. Clause 55 provides that acts made unlawful by Section 6(1) of the Human Rights Act 1998 found the basis of an appeal; I put this generally. Clause 59 provides that:
I should focus on another particular question before I continue further with my own amendments. The noble Earl asked about a student who may obtain leave by deception. A student who obtains leave by deception and then makes a claim for asylum will still have his asylum claim considered, and will have a right of appeal to an adjudicator if he fails. I hope that it was helpful to say that. I quite understand that if one is looking at Clause 8, it is perhaps easy to overlook the difference between "removal" and "deportation".
I turn to Amendments Nos. 23 and 24 tabled in my name. One cannot work without the other, and I shall, if I may, deal with them together. Under Clause 8, an immigration officer will have the power to direct that someone should be removed from the United Kingdom. However, on removal, that person will not go on foot, but by some form of transport. We concluded that it would be desirable to make provision on the face of the Bill for directions to be given to those classes of people who are likely to be involved in effecting the removals I described.
I shall proceed in numerical order. Amendment No. 25 is tabled in the name of the noble Lord, Lord Cope of Berkeley and the noble Viscount, Lord Astor. The wording of the subsection which this amendment seeks to amend mirrors that of the deportation provisions in Section 5(1) of the 1971 Act which currently apply to these cases and which will continue to apply to cases for which deportation is being retained.
The wording has not presented any difficulties in the past. I do not believe it is likely to do so in the future. Therefore, we do not believe that Amendment No. 25 is necessary. As presently drafted, directions given under this section for a person's removal invalidate any leave that was given before the directions were given and any given while the removal directions are in force. Thus, if the family member of someone who is to be removed makes an application for further leave to remain as a
Amendment No. 25 would limit the effect of subsection (8) to any leave which is extant at the time when removal directions are given. As far as leave given before removal directions is concerned, this is not a problem, but leave which has not yet been granted at the time the removal directions are given is not "extant leave"; it is future leave. Adding the word inserted by Amendment No. 25 would mean that any leave granted in the circumstances I have described would not be invalidated, and we would be in the illogical position of removing--or trying to remove--someone who had valid leave to be here.
The last amendment in this grouping is Amendment No. 26 tabled in my name. Clause 8 makes provision for the removal of various categories of person, all of whom, when they originally arrived at the port or airport, qualified for and were granted leave to enter. At the moment, when those persons are removed, the cost is borne by the Secretary of State. The amendment makes clear, on the face of the Bill, that that will continue to be the case in future.
There was a necessity to answer in a little more detail than is perhaps always necessary. I recognise that there may still be questions outstanding. I mentioned, with reference to the noble Baroness, Lady Williams of Crosby, that I was always ready for a meeting. I have been reminded that a meeting has already been arranged for Thursday of this week. If any noble Lords are presently dissatisfied or are still concerned, I am more than happy to look again at the points of detail. However, I believe that some of the points of detail have alarmed people because the distinction has not always been drawn in the mind between the Clause 8 arrangements and what is presently "deportation".
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