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Lord Cope of Berkeley: My Lords, in the light of the Minister's helpful response to the Scottish amendments, I beg leave to withdraw Amendment No. 60A.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 61:

Page 112, line 13, at end insert (“; or
(d) he has such legal and other experience as appears to the Lord Chancellor to make him suited for appointment as a legally qualified member").

On Question, amendment agreed to.

[Amendment No. 61A not moved.]

Lord Bassam of Brighton moved Amendment No. 62:

Page 113, leave out lines 3 to 7 and insert--
(“( ) A direction under sub-paragraph (3) may--
(a) be given in relation to a specified case or category of case;
(b) provide for the jurisdiction to be exercised by a single member;
(c) require the member exercising the jurisdiction, or a specified number of the members exercising the jurisdiction, to be legally qualified;
(d) be varied at any time by a further direction given by the President.").

On Question, amendment agreed to.

Clause 51 [Adjudicators]:

[Amendment No. 62A not moved.]

Schedule 3 [Adjudicators]:

Lord Bassam of Brighton moved Amendment No. 63:

Page 113, line 33, at end insert (“; or
(d) he has such legal and other experience as appears to the Lord Chancellor to make him suited for appointment as an adjudicator").

The noble Lord said: My Lords, I beg to move.

Baroness Williams of Crosby: My Lords, will the Minister say a little more about the phrase “and other experience"? Does that mean that somebody could be

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appointed as an adjudicator whose experience was other than legal? In other words, would it be possible for a lay person rather than a lawyer to be appointed?

Lord Bassam of Brighton: My Lords, I am advised that they must have legal and other experience. We are looking for people who have legal experience but who also have a broader understanding of the ways of the world and life in general. I commend the amendment to the House.

On Question, amendment agreed to.

12.30 a.m.

Clause 52 [General]:

Lord Falconer of Thoroton moved Amendment No. 64:

Page 36, line 33, leave out (“under paragraph 22 or 23 of Schedule 4").

The noble and learned Lord said: My Lords, this is a substantial group of amendments which deals with appeals. I shall deal with them as briefly as possible because I do not believe that they are very contentious.

First, I deal with government Amendment No. 64. Under the present Clause 52(6), an appeal is not to be treated as finally determined while a further appeal may be brought to the Immigration Appeal Tribunal or to the Court of Appeal. This amendment extends it to an appeal to the House of Lords.

Amendment No. 305 permits bail to be granted if there is an appeal pending to the House of Lords. Amendment No. 65 is a necessary clarification of paragraph 2 of Schedule 4. That paragraph is intended to apply only where a notice of decision attracting a right of appeal has been served by post and presently deems the notice to have been served if sent to the last known address of the applicant. The service of such a notice is governed by regulations made under the previous paragraph.

The amendment makes it clear that the notice is deemed to have been served if sent to the person to whom it is required to be given who, in some cases, may not be the person to whom the decision relates. The regulations will clarify that further, but where, for example, the applicant is a child represented by a guardian, or a nominated legal representative is handling his application, it is clearly appropriate for service to the third party to constitute good service. It also resolves the problem of when the applicant is of no fixed abode.

Amendment No. 66 is a small addition to paragraph 2 of Schedule 4. It makes clear that where the applicant receives late notice of determination he should thereby lose the right to appeal because the time is passed for appeal. We wish to make it plain on the face of the statute that a person will not be prevented from appealing through postal mishap, although in practice there is a wide discretion in procedural rules to allow late appeals to proceed in such circumstances.

On Amendment No. 68, Schedule 4, paragraph 4(2) states that the appeals procedure rules made by the Lord Chancellor must provide that any appellant is to

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have the right to be legally represented. Some may interpret that as having a universal effect way beyond the jurisdiction that we are discussing here. The intention is that the appellant has a specific right to be represented at any hearing of his appeal. Amendment No. 68 simply adds a rider to that effect.

Amendment No. 72 corrects a small problem with the wording of Schedule 4, paragraph 9(6)(a)(iii), which enables the Secretary of State to certify a claim when it is made after the claimant is aware that a decision has been taken to make a deportation order against him. The words should refer to Clause 5(1) of the 1971 Act, under which the Secretary of State makes deportation orders, rather than Section 3(5) of that Act, which sets out when a person is liable to be deported. Referring to Section 5(1) also ensures that orders made at the recommendation of a court under Section 3(6) of the 1971 Act are also covered.

The power to certify an asylum or human rights claim so that there is, if and only if the adjudicator agrees, no further right to apply for leave to appeal to the tribunal, is set out at paragraph 9 of Schedule 4. However, the power is presently limited to cases where the appellant has appealed under Section 63; that is, on asylum grounds. That would enable claimants to orchestrate their applications so that initial refusal attracted a right of appeal on a non-asylum ground. They would then raise asylum or human rights claims as additional grounds and those claims could not be certified. Therefore, Amendment No. 72 removes the limitation, enabling the Secretary of State to certify an asylum or human rights claim in the circumstances stated, regardless of the category under which that person has initially appealed.

Amendment No. 73 corrects an inadvertent omission. When removal directions are made under Clause 8, those directions should, of course, have no effect when a relevant appeal is pending. Therefore, we are adding Clause 8 directions to the list of types of direction which are subject to suspensive appeal.

Amendment No. 76 simply removes the unnecessarily long description of a “certificate of entitlement" in Clause 54(1)(b). Clause 161(2) applies the 1971 Act definition of the term to this Bill. We are merely removing superfluous words. Amendment No. 77 is a simple matter of using consistent wording throughout Clause 54.

Amendments Nos. 84 and 85 concern the certification of human rights claims made after an appeal has been determined which the claimant has had every opportunity to raise before. In such circumstances any second appeal is to be regarded as finally determined. We considered that the wording,

    “the sole purpose of such a claim would be to delay the removal from the United Kingdom",

did not adequately reflect what we wanted to achieve. The effect of these amendments is to amend the justification for certification so that one of the reasons for the claim is to delay removal, and that there is no other legitimate purpose for claiming.

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On Amendment No. 87, Clause 67(8) provides for circumstances when a person makes a further application on the same basis as a previous one which has been refused and appealed. We felt that that could usefully be brought into line with Clause 67(2), as amended by Amendments Nos. 84 and 85, so that one purpose of making the further application has to be to delay removal, while there is no other legitimate purpose for making it.

Amendments Nos. 90 and 91 serve the same purpose as Amendments Nos. 84 and 85, but in relation to Clause 70.

Amendments Nos. 97 to 99 mostly have the effect of combining the provisions of Clauses 71 and 72. Amendment No. 96 ensures that Clause 71 takes fully into account the effect of the Court of Appeal decision in Ravichandran. Amendment No. 100 simply corrects an omission from Clause 73.

Amendment No. 290 deals with paragraph 61 of Schedule 13 and amends the 1971 Immigration Act so as to give bail rights to detained appellants under Part IV of this Bill, but reference to Clause 59 (human rights appeals) was inadvertently omitted. Amendment No. 290 makes good the omission so that human rights cases are covered.

Noble Lords would have to be superhuman to take in the great bulk of what I have just gone through. Most of the provisions are purely technical but I understand that noble Lords may wish to read it in Hansard and take in the great majority of it. I beg to move.

Lord Avebury: My Lords, Amendment No. 78 is not technical and I shall be grateful if I can deal with it separately.

On Question, amendment agreed to.

Schedule 4 [Appeals]:

Lord Falconer of Thoroton moved Amendments Nos. 65 to 68:

Page 115, line 5, leave out from (“If") to (“it"), in line 7, and insert (“a notice given under regulations made under paragraph 1 is sent by first class post, addressed to the person to whom the notice is required to be given,").
Page 115, line 8, at end insert (“unless the contrary is proved").
Page 115, line 31, after (“which") insert--
(“( ) a decision of an adjudicator may be set aside by an adjudicator; or
( )")
Page 115, line 39, at end insert (“at any hearing of his appeal").

The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 65 to 68 en bloc. I beg to move.

On Question, amendments agreed to.

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