Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Williams of Crosby: My Lords, given that my name has been put to Amendment No. 89, I should like to add a few words, because it is obvious that it is the intention of the House to consider this group of amendments in one broad debate.

I should like to reiterate the point made by the noble Lord, Lord Cope, and my noble friend Lord Phillips that we are profoundly concerned at the limitations on the one-stop appeals procedure. We strongly supported that process, which would be able to consider all the factors. In effect, there would be a requirement to look back to the facts that were before the Secretary of State at the time of his decision and not consider other factors that might have come into the picture since that time.

I shall not tire the House by listing all the different factors, but these could range from the birth of a child, to a person being affected by a serious or even terminal illness. I should like to draw the Government's attention to the fact that there is a wide range of possible factors that may need to be taken into account.

18 Oct 1999 : Column 917

Further, I am concerned at the use of the phrase “Secretary of State" in Clause 70 dealing with appeals to be considered. We thought that this matter would be considered by the adjudicator together with all the other issues, and it is unclear why there is a clarification between those issues that can be looked at by an adjudicator and those that cannot.

Finally, I should like to underline the point made by the noble Lord, Lord Cope of Berkeley, that we are concerned that in a number of cases the only resort would be that of judicial review. We understood that the Government were anxious to avoid a series of judicial reviews because that would simply delay the whole process of completing an appeal. I should be grateful to learn why the Government support the clause as it stands rather than accepting the amendments. There is a possibility that that will lead to a full series of objections that will then have to be heard.

Lord Falconer of Thoroton: My Lords, I shall deal first with Amendment No. 75. Subparagraph (4A)(a) taken with sub-paragraph (4B) of this amendment would require an adjudicator to allow an appeal in the case of a published concession as if that concession was in the Immigration Rules. Noble Lords will be aware that we have been considering the question of concessions and we have stated that we shall give adjudicators the power which the amendment proposes. However, we plan to do this by reviewing, updating and rationalising the concessions, and then incorporating them into the Immigration Rules. For that reason, this part of the amendment is unnecessary.

Sub-paragraph (4A)(b) would extend adjudicators' powers to allow cases outside the Immigration Rules and outside published concessions applying considerations which are within the rules relating to deportation and removal. Such a proposal would be unfair to those persons who are to be removed without an in-country right of appeal. Those who lodged a human rights or asylum claim, possibly just to delay their removal, would benefit from an in-country appeal, and with it what amounts to an appeal on compassionate issues. Those who honestly accept that they have no basis for a human rights or asylum claim would have no such appeal. That is patently unfair. I should say that all of those people are able to put their compassionate circumstances to the Secretary of State, and those circumstances will be fairly considered.

Sub-paragraph (4C) would effectively make the adjudicator a first-instance decision-maker. That cannot be right. Moreover, it would mean that adjudicators could allow an appeal on the basis of concessionary and compassionate issues which did not form part of the decision under review, but not pursuant to Immigration Rules which were not relevant at the time.

The purpose of the one-stop system is to encourage applicants and appellants to set out all their reasons for staying here in a timely manner. Relevant additional grounds will be considered by the Secretary of State and will form part of the appeal which is submitted to the adjudicator who may allow the

18 Oct 1999 : Column 918

appeal according to Clause 71. But in any case, sub-paragraph (4C) of the proposed amendment operates only in conjunction with sub-paragraph (4A).

There are three consequences to Amendment No. 75: we do not need concessions because we are going to put that provision into the Immigration Rules; allowing the adjudicators to make decisions outside the rules and the concessions would be unfair for the reasons I have indicated and in effect could be dealt with by the Secretary of State's discretion; and sub-paragraph (4C) would effectively make the adjudicator a first-instance decision-maker and would severely undermine the one-stop-shop approach, with which I think everyone agrees.

Perhaps I may deal briefly with Amendments Nos. 86 and 89. Both the amendments would negate the purpose of Clause 70(3), which is to prevent late applications delaying appeals and unnecessarily taking up the limited resources of the appellate authority. When a person enters the one-stop system he will be expressly informed of the consequences of not making any relevant claims within the time period allowed. If he makes an asylum or human rights claim outside that period without any reasonable excuse, that claim cannot be taken seriously unless it is based on circumstances of which he was unaware previously. Where human rights and asylum issues are concerned and a person thinks he has grounds for a claim, he can surely be expected to raise them when given the opportunity to do so and when warned that they may be certified if he does not, so that he will not be able to raise them at his appeal. We do not think that adjudicators should be burdened with the task of deciding whether or not such grounds should be considered. The Secretary of State will, of course, consider the late grounds put forward, as he must consider any claim, because even a late claim without reasonable excuse can be successful if it is justified. For those reasons, we reject Amendments Nos. 75, 86 and 89.

The Earl of Sandwich: My Lords, the Government have presented some reassurances. There is a good deal of feeling on this issue. Unfortunately, the hour is so late that I cannot command all the arguments which would sensibly test the feeling of the House. That is really what is required at this point. I am grateful to the noble and learned Lord for the time he has given in replying to the amendments. We shall come back to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendments Nos. 76 and 77:

Page 37, line 32, leave out from (“entitlement") to end of line 33.
Page 37, line 39, leave out from beginning to (“against") and insert (“Section 53 does not entitle a person to appeal").

On Question, amendments agreed to.

Clause 57 [Deportation orders]:

Lord Avebury moved Amendment No. 78:

Page 39, line 33, after (“3(5)") insert (“or (6)").

18 Oct 1999 : Column 919

The noble Lord said: My Lords, the purpose of this amendment is to provide a right of appeal to an adjudicator in cases where a decision has been made by the Home Secretary to make a deportation order following the recommendation of a criminal court. Up to now, there has been no right of appeal in respect of those decisions made by the Secretary of State. It has long been the view of practitioners in the field that that position is iniquitous. The right of appeal within the criminal appellate system (by way of appeal against sentence) is no substitute for a merits appeal to the immigration appellate authorities.

Furthermore, within the criminal system such right of appeal is seldom exercised, often because of inadequate advice. The reality for persons subject to such recommendations is that the criminal practitioners are not necessarily experienced in immigration law. Indeed, the experience of the immigration practitioners themselves suggests that many criminal practitioners assume that, since the court has only “recommended" deportation, it is by no means certain that such recommendation will be implemented; worse, such criminal practitioners are also unaware of the consequence that deportation decisions in such circumstances are wholly unappealable. There is a separation between the recommendation made by the court and its implementation by the Secretary of State. Frequently, where a person serves a sentence of imprisonment it is not until the end of the sentence that the Secretary of State implements the decision to deport.

Against that background, we welcomed the statement in the Explanatory Notes that, under the Bill, deportation will be reserved for cases where removal is conducive to the public good or recommended by a court, and that such cases will now go to an adjudicator in the first instance, or to the Special Immigration Appeals Commission. The statement was reaffirmed at meetings held by Home Office officials with the Immigration Law Practitioners Association, which briefed us on this amendment.

That was initially achieved in Special Standing Committee in the Commons when Mr O'Brien moved Amendment No. 573. To cut a long story short, when the Bill came before this House on 19th July, an amendment was moved at a late hour by the noble and learned Lord, Lord Falconer--Amendment No. 111C (col. 794)--to restore the position that these particular recommendations were not appealable. There was no discussion of the amendment. The noble and learned Lord did not explain its purpose and, because it was 11.30 at night, it passed on the nod.

That is slightly--I do not know whether one is permitted to say this--“underhand". In view of the history of the amendment, it is odd that the Minister did not deign to explain what he was up to in moving it. It would be useful to know whether he can produce any reasoning this evening. The Government started out with their hearts and minds in the right place. They continued in that frame of mind until in the Special Standing Committee objections were raised to

18 Oct 1999 : Column 920

the course that they had chosen. As I say, the result of that deliberation did not emerge until a late hour on 19th July. I am alarmed by that U-turn and the lack of any debate on it in this House. The position of principle adopted in the Explanatory Notes, and confirmed by the original amendment, is the correct position. There was no justification whatsoever for the change. I hope that the Government's original position will now be restored. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page