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Page 44, line 10, after ("2(1)") insert ("or 2A").

The noble Lord said: In this group we find Amendments Nos. 122B, 122E, 217A and 217B. I speak first to Amendment No. 217B, which relates, as the Committee will have seen, to Schedule 13 to the Bill. That schedule concerns consequential amendments to other Acts as a result of provisions in this Bill.

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Amendment No. 217B concerns a consequential amendment to the Special Immigration and Appeals Act 1997. It puts into the 1997 Act a new Section 2A, which gives jurisdiction to the Special Immigration Appeals Commission to hear appeals concerning claims that an authority acted in breach of the appellant's human rights appeals. It is clearly vital that, in a case where SIAC is involved, it is possible for it to take into account any claims based on human rights grounds. At the moment, by virtue of Clause 55, it is not possible and that is why this amendment is necessary.

Amendments Nos. 122B and 122E are consequential amendments to Clause 68 of the Bill, inserting a reference to the new Section 2A of the 1997 Act. Those are the purposes of those amendments. Amendment No. 217A is also in this group. It relates to the fact that under the present legislation in Section 2(1) of the 1997 Act, there is a right of appeal to the SIAC only in cases covered by Section 13(1) of the Immigration Act 1971, which deals with refusal of leave to enter, and not to cases covered by Section 13(2) of the 1971 Act, which deals with refusal of entry clearance.

The Government's intention is to make similar provisions in this Bill. The current text of paragraph 100 of Schedule 13 inadvertently extends jurisdiction to the refusal of entry clearance. Amendment No. 217A puts that right. In other words, no right of appeal is being removed. It is simply a continuance of the present circumstances. Accordingly, in due time I shall move those amendments formally. I beg to move.

On Question, amendment agreed to.

4.45 p.m.

Lord Williams of Mostyn moved Amendment No. 122C:


Page 44, line 12, leave out ("Special Immigration Appeals").

The noble Lord said: I beg to move.

Baroness Williams of Crosby: I apologise if I failed to follow the Minister's exact words. Can he remind the Committee by whom the appeal will be heard after transfer? It will not be the Special Immigration Appeals Commission. Therefore, to whom will the appeal be passed as a result of this amendment since the phrase now remaining is simply "commission" with no reference to what commission?

Lord Williams of Mostyn: I shall take instructions on that. In maintaining the status quo I should have fully familiarised myself with that under the 1971 Act. Perhaps the Committee will allow me a moment to take those instructions. I know that they are coming hot-foot. Entirely as I anticipated and as I said earlier, this is simply a drafting amendment. One finds the definition of "commission"--I should have known this--in Clause 155. Therefore, I hope that the answer to the question from the noble Baroness is to be found in the definition in that clause.

Baroness Williams of Crosby: I am grateful to the Minister. I suggest he amends his remarks by removing the word "entirely".

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On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 122D:


Page 44, line 15, after ("64") insert ("or (Duty to disclose grounds for entering etc the United Kingdom)").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 122E:


Page 44, line 16, after ("2(1)") insert ("or 2A").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 122F:


Page 44, line 19, leave out ("Special Immigration Appeals").

On Question, amendment agreed to.

Clause 68, as amended, agreed to.

Clause 69 agreed to.

Clause 70 [EEA nationals]:

Lord Williams of Mostyn moved Amendment No. 122G:


Page 45, line 6, after ("national") insert (", or a member of the family of an EEA national,").

The noble Lord said: In moving this amendment I shall also speak to Amendments Nos. 122H, 122J, 122K, 122L and 122M. These amendments relate to EEA nationals and their family members. Amendment No. 122H, if it is accepted, extends the circumstances in which provision for appeals may be made under the regulations to include entitlement conferred under agreements by which the United Kingdom is bound. That will ensure that we can fulfil our obligations to provide appeal rights whether they are contained in agreements to which the United Kingdom is a party or in agreements by which the United Kingdom is bound, although not a party; for example, certain agreements between the Community and third countries. Such agreements may already be in existence or may come into existence in the future.

Amendment No. 122J allows for regulations to make any necessary amendments to the provisions of the Special Immigration Appeals Commission Act 1997 and the Immigration (European Economic Area) Order 1994. Amendment No. 122K removes from the definition of an "EEA national" a person who is, or who claims to be, a family member. This is because Amendment No. 122L requires a person claiming to be an EEA national to produce certain documents, which will not necessary be relevant to family members. It was, therefore, inappropriate to include family members within the definition of "EEA national". However, Amendment No. 122M enables the regulations to prescribe who, in relation to an EEA national, is a family member and to make provision for establishing how such family membership is to be established.

Amendment No. 122L requires an EEA national to produce a valid passport or national identity card issued by an EEA state in order to exercise a right of appeal under Clause 70. This is to prevent a person claiming that he is an EEA national and being afforded a right of

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appeal, even though no proof of his alleged status has been seen. The effect of subsection (8B) is to clarify that a passport or an identity card, produced for the purposes of subsection (8A), will be regarded as genuine unless its falsity is reasonably apparent, or unless it is reasonably apparent that it relates to another person. I ask Members of the Committee to accept these amendments. At this point, I beg to move the first of them.

Earl Russell: Perhaps I may ask a small question about Amendment No. 122M. This is the amendment which relates to membership of a family being defined in such a way "as may be prescribed". The question relates more to drafting than substance. I wonder whether prescription by regulation is the correct way to proceed in this case, or whether it would be better to leave it to be established in the courts or in tribunals, according to precedent. That would apply especially to the families of asylum seekers, which are likely to be fractured.

Families may take unexpected forms. The case occurs to me of a Kosovar child accompanied by an aunt, the parents being dead. They claimed to be a family, but there was some problem in getting the authorities to accept this. If one proceeds by simple, total enumeration by regulation, one may be liable to miss some quite unexpected family forms which stress may produce. Would it not be better to leave the judicial authority to recognise a family when it sees one, rather than being quite so prescriptive through regulation? This point runs through the drafting of a great many different statutes. I raise the matter at this point because this is one of the many places where I believe that the question applies. I hope that the usual process of osmosis, by which information reaches Ministers in this Chamber, has run its course.

Lord Williams of Mostyn: I am most grateful to the noble Earl for speaking with such extended clarity; indeed, the osmotic process was about to take its course. The noble Earl has made a fair point. However, one has to balance the benefit of regulation and prescription because it does give clarity and, therefore, certainty to those who may otherwise be uncertain. Nevertheless, I take the noble Earl's point that, sometimes, one does not want over-prescription. I shall certainly think about what he said, but the balance is quite a difficult one to strike. The noble Earl is quite right. Family circumstances do change, not simply in the international connection but also in the domestic connection; and what one feels ought to be a familial relationship--and was such in 1849--is not necessarily so in 1999.

We need clarity and certainty. That is why we have taken this route. Of course, any prescription by way of regulation would be obliged to comply with EU law; indeed, that may be another aspect that we shall need to consider. I recognise that there is an underlying validity to what is really a philosophical approach by the noble Earl. Perhaps I may think about it. If he returns to the

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question on Report, I imagine that we shall have a concluded view at that stage. That view may remain unchanged, but it will not remain unconsidered.

Baroness Williams of Crosby: I understand that a change has been made to a schedule to the Bill as regards removing the words, "child of a head of a family or his or her spouse", which does in fact widen the area within which family members can be included. I speak with some feeling here because two members of my own family have become family members because of the unexpected deaths of my brother and his wife; indeed, they are effectively my son and daughter. Will the Minister consider the possibility of picking up the phraseology used in the schedule and, possibly, translating it into this part of the Bill?


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