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Lord Falconer of Thoroton: With the greatest respect to the noble Lord, that would go way beyond the ambit of this amendment. The question is whether or not it is sufficiently transparent in relation to cases where the circumstances change. As I explained to the noble Lord, Lord Alton, if you represent the Home Office you must appear before an adjudicator and explain why you believe that the circumstances which gave rise to the fear have changed. The other issue about whether or not to inform the wider world as to what is the IND's view on a particular country seems to me completely different.

Baroness Williams of Crosby: Although the noble Lord, Lord Hylton, graciously gave me time to make up my mind, it was made up beforehand. However, before I withdraw my amendment, perhaps I may briefly point out why we will want to return to the matter on Report. The Minister has been both patient and reasonable, but, before I sit down, there are three issues that I should like to mention which leave us with very grave doubts.

First, there is paragraph 9(3) to which the noble Countess, Lady Mar, also referred. I have in mind the issue about resting so much on the production of a valid passport. That has been repeated all the way through the Bill, with regard to carriers, and so on. If you do not

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produce a valid passport, it is quite clear that you will, so to speak, be under suspicion. We are not quite sure of the meaning of the phrase,


    "without giving a reasonable explanation for his failure".

Secondly and thirdly, we are not worried about sub-paragraphs (4)(a) and (5)(a), both of which are subject to objective consideration. Of course, it can be argued effectively that there are no reasonable grounds for a right under that convention and it can also be argued effectively that there is no reasonable ground for a fear of persecution. However, both sub-paragraphs (4)(b) and (5)(b) have a very large subjective element in how they would be interpreted. For example, the fear of persecution could be dismissed on the grounds that it is "manifestly unfounded", which must be a subjective consideration. Therefore, although I shall withdraw the amendment at this stage, I am afraid that my noble friends and I will want to return to the issue on Report, despite the Minister's very plausible and helpful explanation.

Amendment, by leave, withdrawn.

[Amendment No. 110 not moved.]

The Earl of Sandwich moved Amendment No. 110A:


Page 113, line 21, at end insert--
("(4A) Sub-paragraph (4) shall not apply in respect of any request to the Secretary of State by or on behalf of an appellant to depart, or to authorise an officer to depart, from the immigration rules which is contained in a statement made by an appellant under section 64(6) or to any request in respect of an appeal to which sections 64 to 67 applies.").

The noble Earl said: I wish to move this amendment on behalf of the Immigration Law Practitioners Association and the Asylum Rights Campaign. I refer to paragraph 21 of Schedule 4, which is to be found at page 113 of the Bill, where an adjudicator must allow the appeal if he considers that,


    "the decision or action involved the exercise of a discretion by the Secretary of State".

The purpose of the amendment is to bear out the purpose of the one-stop appeals procedure proposed in Clauses 64 to 67 by ensuring that adjudicators have the power to consider all the circumstances of an individual case, including any compassionate circumstances, at one consolidated appeal. The one-stop appeals system in Clauses 64 to 67 ensures that all matters are considered together. The aim is to reduce the number of re-applications and the number of applications for judicial review.

In practice the additional grounds referred to are likely to be compassionate circumstances such as ties with the UK, medical condition, welfare of children born in this country, and so on. However, paragraph 21 to Schedule 4 appears to undermine the Government's own intention in that it prohibits the adjudicator, in sub-paragraph (4), from allowing the appeal if the decision was one allowed by the immigration rules. The wording of sub-paragraph (4) is taken from the 1971 Immigration Act, and this may be part of the problem. It appears anomalous in this Bill, given that the conception of the appeals process, introduced by Clauses 64 to 67, differs from that in the 1971 Act.

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This is a technical but important amendment from the ILPA because we need a one-stop appeal which is comprehensive and appropriate. It would deal with all the additional compassionate and other grounds and so avoid judicial review. I beg to move.

Lord Falconer of Thoroton: The amendment would require an adjudicator to allow an appeal when he considered that certain discretionary matters raised after the initial decision in a "one-stop" case had been decided wrongly, although the adjudicator would be under no such requirement if the matter was the basis of that initial decision.

The position in current legislation, which we wish to retain, is that an adjudicator should be bound by the immigration rules which have been laid before Parliament. He should have no discretion to allow an appeal because he thinks that the appellant's case should be treated exceptionally. We firmly believe that the discretion to make exceptions should remain with the Secretary of State. In this way fairness and consistency of treatment in line with the overall requirements of immigration control can be maintained. If the adjudicator feels that an exception should be made, it will be open to him, as it is now, to make a non-statutory recommendation to the Secretary of State.

The amendment proposed by the noble Earl would produce an inconsistent approach to the consideration of discretionary matters depending on the point in time at which they were raised and would lead to inconsistency and unfairness in the resolution of individual cases. The immigration rules must surely form the framework by which appeals are considered. I therefore ask the Committee to reject the amendment.

The Earl of Sandwich: I am reassured by the Minister that the provision does not undermine the exercise of the discretion. Although I may have to return to this matter at a later stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 111 not moved.]

Schedule 4 agreed to.

Clause 49 agreed to.

Clause 50 [Limitations on rights of appeal under section 49]:

Lord Dholakia moved Amendment No. 111A:


Page 34, line 31, leave out subsection (6).

The noble Lord said: I have two questions on this matter. First, can the Minister explain why it is that a family visitor who is appealing under Clause 49 has to pay a fee that may be fixed by regulation, and if the fee is not paid the appeal will not be heard? What are the reasons for demanding a fee? Secondly, the amendment is concerned with family visitors. We believe that a family visitor ought to be clearly defined and in Amendment No. 111B a family visitor,


    "means a person who intends to visit another person who is related to him by blood or marriage or associated with him by a relationship akin to marriage and who is present or settled in the United Kingdom".

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We propose this amendment because there is a substantial number of people who wish to come to this country who are closely related to people in this country--a blood relationship exists--and it is right and proper that they should be able to make an application and, if refused, there should be grounds for appeal. I beg to move.

Lord Clinton-Davis: It is right that this issue should be tested on the two counts introduced by the noble Lord, Lord Dholakia. I find the insistence on pre-payment of a fee somewhat unusual, if not unprecedented. After all, what a person is seeking to appeal against is a decision of the executive and he enlists a statutory right of appeal against that decision. Perhaps my noble and learned friend can tell me where else there is a requirement for such a payment to be made in circumstances analogous to this. As I understand it, none of the administrative tribunals which hear appeals--the DSS, the Inland Revenue, the Child Support Agency and others--makes this requirement. It is a right to challenge an administrative decision; and it is right that that should be part of the rule of law in a democratic society. If my noble and learned friend is able to point to the fact that I am wrong about this and that it is not exceptional in any material respect, I shall, of course, withdraw that argument.

As to the question raised by the noble Lord, Lord Dholakia, about the definition of a family, it is a point which is extremely important in non-Western societies. The noble Lord has already made the argument; it is not for me to embroider it. I shall listen with great interest to my noble and learned friend's reply on these issues.

Lord Falconer of Thoroton: In giving effect to our commitment to provide a streamlined right of appeal to those refused entry clearance to visit a family member, the Government have decided that those who exercise the right of appeal should pay the costs; otherwise the costs would be borne by the taxpayer. The cost will depend on the type of appeal: approximately £200 for an appeal on the papers, and about £400 for a full oral hearing of the appeal. Appellants whose appeals are allowed will have their costs refunded.

The noble Lord, Lord Clinton-Davis, asked me whether there are any comparable situations where one has to pay a fee to challenge a decision of the executive: an initial review is one. When one starts proceedings in the High Court, one has to pay a fee before one starts. It seems to me that that is a parallel situation.


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