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Lord Falconer of Thoroton: My Lords, the point is noted.

Baroness Williams of Crosby: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 67 [Limitation on further appeals]:

Lord Bassam of Brighton moved Amendments Nos. 83 to 85:


Page 44, line 22, leave out (“this Part") and insert (“the Special Immigration Appeals Commission Act 1997 or this Act").

18 Oct 1999 : Column 924


Page 44, line 32, leave out (“the sole") and insert (“one").
Page 44, line 34, at end insert (“; and
(c) the appellant had no other legitimate purpose for making the claim").

On Question, amendments agreed to.

[Amendment No. 86 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 87 and 88:


Page 45, line 5, leave out from (“that") to end of line 7 and insert (“in his opinion--
(a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and
(b) the appellant had no other legitimate purpose for making the application.").
Page 45, line 8, leave out (“this Part") and insert (“the Special Immigration Appeals Commission Act 1997 or this Act").

On Question, amendments agreed to.

Clause 70 [Result of failure to comply with section 68]:

[Amendment No. 89 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 90 and 91:


Page 47, line 15, leave out (“the claim for asylum was made solely for the purpose of delaying") and insert (“--
(a) one purpose of making the claim for asylum was to delay").
Page 47, line 17, at end insert (“; and
(b) the applicant had no other legitimate purpose for making the application.").

On Question, amendments agreed to.

Clause 71 [“One-stop" appeals: asylum claims]:

Lord Falconer of Thoroton moved Amendments 92 to 98:


Page 47, line 20, at end insert--
(“(b) any other appeal against a decision--
(i) to refuse an application for leave to enter or remain in the United Kingdom;
(ii) to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom, which has the result mentioned in section 68(2)(a); or
(iii) to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act.").
Page 47, leave out lines 21 and 22 and insert--
(“(2) Subject to section 66(2), the appellant is to be treated as also appealing on any additional grounds").
Page 47, line 23, leave out (“the appellant") and insert (“he").
Page 47, line 25, leave out (“Part") and insert (“Act").
Page 47, line 28, leave out subsection (3) and insert--
(“( ) In considering--
(a) any ground mentioned in section 63, or
(b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention,
the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).

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( ) In considering any other ground, the appellate authority may take into account only evidence--
(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or
(b) which relates to relevant facts as at that date.").
Page 47, line 32, leave out subsection (4).
Page 47, line 37, at end insert--
(“( ) “Appellate authority" means an adjudicator, the Tribunal or the Special Immigration Appeals Commission.").

On Question, amendments agreed to.

Clause 72 [“One-stop" appeals: other cases]:

Lord Falconer of Thoroton moved Amendment No. 99:


Leave out Clause 72.

On Question, amendment agreed to.

Clause 73 [Transfer of appellate proceedings]:

Lord Falconer of Thoroton moved Amendment No. 100:


Page 48, line 14, leave out subsection (1) and insert--
(“(1) Subsection (2) applies if--
(a) a person who has brought an appeal under this Part has been notified of the Secretary of State's decision to make a deportation order against him; and
(b) as a result of section 58(1), he is not entitled to appeal against that decision under section 57.
(1A) Subsection (2) also applies if--
(a) a person who has brought an appeal under this Part has been notified of the Secretary of State's decision to refuse to revoke a deportation order made against him; and
(b) as a result of section 58(2), he is not entitled to appeal against that refusal under section 57.").

On Question, amendment agreed to.

Clause 75 [EEA nationals]:

Lord Falconer of Thoroton moved Amendment No. 101:


Page 49, line 13, leave out from (“any") to (“entitlement") in line 14 and insert (“immigration decision in relation to--
(a) an EEA national;
(b) a member of the family of an EEA national;
(c) a member of the family of a United Kingdom national who is neither such a national nor an EEA national.
( ) “Immigration decision" means a decision concerning a person's removal from the United Kingdom or his").

The noble and learned Lord said: My Lords, Amendments Nos. 101 to 105 all apply to Clause 75, which provides for regulations to be made giving discrete rights of appeal against adverse decisions relating to EEA nationals.

Amendment No. 101 has two effects. It adds a further category to those covered by the clause, in order to comply with a European Court of Justice interpretation of Article 52 of the Treaty: we are in effect also required to treat as an EEA national a member of a United Kingdom national's family in certain limited circumstances. The amendment also ensures that decisions covered by the clause include decisions to make a deportation order on public order grounds and decisions to remove a person under Section 15(2) of the EEA Order.

18 Oct 1999 : Column 926

Amendment No. 103 is necessary to define the term “United Kingdom national", which Amendment No. 101 introduced; the definition used is from the British Nationality Act 1981. And Amendment No. 101 also results in a need to prescribe what persons are to be treated as family members of a United Kingdom national: that is what Amendments Nos. 104 and 105 achieve.

Amendment No. 102 is a simple correction. At the end of Clause 75(1)(b) the word “and" should of course be “or". I commend these uncontroversial and necessary amendments to your Lordships.

Amendment 291 rewrites paragraph 3 of Schedule 4 to the 1971 Act. In the case of Rogue v Lieutenant Governor of Jersey, the European Court of Justice held that Protocol M to the EC Treaty could not be interpreted in such a way that a deportation order made by the Jersey authorities against a national of a member state other than the United Kingdom would have the effect of prohibiting that person's entry to and residence in the territory of the United Kingdom for reasons and consideration other than those for which the United Kingdom authorities might otherwise restrict the free movement of persons under Community law.

The effect of this is that paragraph 3(1) of Schedule 4 to the 1971 Act should not apply to an EEA national or the family member of an EEA national unless the Secretary of State otherwise directs. This will mean that an inadvertent breach of the principle in the Rogue case will be less likely since EEA nationals will be excluded from the United Kingdom only where the Secretary of State has considered the case and decided that it is appropriate having regard to the principles of the 1971 Act.

I commend these necessary amendments to your Lordships.

Before I sit down, perhaps I may mention a matter to which I should have referred previously. I inadvertently told the House that I had spoken to Amendments Nos. 79 and 80 when I had not. They have been passed by your Lordships without my speaking to them. They are uncontroversial and the most appropriate course is for me briefly to explain them. If there are any problems we will try to unscramble them.

The purpose of these amendments is first to repair a gap in the scheme for dealing with appeals to the Special Immigration Appeals Commission and, secondly, to ensure that the general appeals provisions are also reflected, where appropriate, in the provision for appeals to the commission.

The general scheme of the Bill is that, wherever possible, if a person has an appeal before the Special Immigration Appeals Commission, or has grounds to appeal to the commission, the commission should be solely responsible for considering all appealable aspects of the case. That, of course, is consistent with the wider aim of our appeals reform.

As the Bill stands, however, there is a gap in the scheme. In theory an applicant can appeal to the adjudicator on human rights grounds in parallel to an

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appeal to the Special Immigration Appeals Commission. Since, under the Bill, the commission will have jurisdiction to consider human rights issues, this would just be a source of confusion and a waste of time and money. Amendments Nos. 79 and 80 put this right.

The amendments to Clause 67 are linked. They apply to cases in which an appeal has been heard by the SIAC the same restrictions on further appeals as are applied by the Bill to human rights appeals generally. Amendment No. 98 to Clause 71 ensures that SIAC appeals are fully covered by the one stop scheme. Likewise, Amendments Nos. 285 and 307 to Schedule 13 ensure that changes in the Bill to the general appeals provision are carried through to the SIAC legislation.

These are sensible amendments. Two have already been passed and the others I shall commend to the House when we reach them on Wednesday.

1.30 a.m.

Lord Avebury: My Lords, will the Minister explain why it is not possible to specify who are the members of the family? Why does that have to be dealt with by means of regulation? Surely, one knows in advance who are members of the family.


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