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The Deputy Speaker (The Viscount of Oxfuird): My Lords, I call Amendment No. 28.

Lord Hylton: My Lords, on behalf of my noble friend Lord Sandwich, I thank the noble and learned Lord the Attorney-General for his helpful comments on the amendment, and in particular his remarks reflecting the Government's overall acceptance of the thrust of the amendment. With that, I shall not move Amendment No. 28.

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[Amendment No. 28 not moved.]

Clause 50 [Applications for bail in immigration cases]:

Lord Bassam of Brighton moved Amendment No. 29:


Page 37, line 43, at end insert--
("( ) In so far as regulations under this section relate to the sheriff or the Court of Session, the Lord Chancellor must obtain the consent of the Scottish Ministers before giving his approval.").

On Question, amendment agreed to.

Clause 60 [Deportation orders]:

Lord Avebury moved Amendment No. 30:


Page 41, line 39, after ("3(5)") insert ("or (6)").

The noble Lord said: My Lords, on the last occasion that we considered this matter, the noble and learned Lord, Lord Falconer of Thoroton, said:


    "the court which made the deportation order will have taken into consideration the convicted person's circumstances before making the recommendation".--[Official Report, 18/10/99; col. 920.]

That was the first of four reasons that he gave for rejecting the amendment, which I am moving again today. It provides for a right of appeal to an adjudicator in cases where a decision is made by the Home Secretary to make a deportation order following a recommendation of a criminal court.

With respect, a criminal court is not the forum in which to deal with immigration matters. Factors that need to be considered when arriving at a decision to deport may only be put before the court to the extent that they are covered by evidence given in connection with the offence on which the person is being tried. Those working in the criminal justice system are not familiar with immigration law. Most do not have any expertise in the field. Indeed, Part V of the Bill before us is predicated on the assumption that we need to identify solicitors who have the capacity to engage in immigration casework.

Unfortunately, not only criminal practitioners have little experience of immigration cases. That observation applies also to judges when passing sentences in the criminal courts. I refer noble Lords to Regina v. Rodney [1998] INLR 118 in the Court of Appeal when the court considered an appeal against the making of a recommendation. In that case, counsel for the Crown stated as follows:


    "Mr. Van De Bijl, who has helped the court, from the Crown's point of view, says that in his experience judges frequently tack on a recommendation for deportation to a sentence of imprisonment without giving some reasons because it is a subsidiary matter".

It is a not a matter that receives proper consideration by the criminal court. It is often thought that, on completion of the sentence, the matter will fall to be determined by the Secretary of State.

The noble and learned Lord, Lord Falconer of Thoroton, when stating his reasons for rejecting the amendment on Report, elided these matters. He said:


    "To have a Court of Appeal recommendation reviewed and possibly overturned by an adjudicator or even a tribunal would seem inappropriate".--[Official Report, 18/10/99; col. 920.]

However, that is not the recommendation which would be overturned by the adjudicator. If Amendment No. 30 is accepted, the court will pass

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sentence and if that sentence includes a recommendation for deportation, the person serves the sentence of imprisonment and then, at the end of the sentence, the Secretary of State shall consider whether to accept the recommendation for deportation. The reason why he does that only at the end of the sentence is of course because the circumstances may have changed. The person may have been in prison for two years. His family circumstances and the conditions in his country of origin may have changed, and therefore a decision on whether to deport is not the same as a decision on whether to recommend deportation. I believe that that point was overlooked by the noble and learned Lord, Lord Falconer of Thoroton, when replying on the last occasion.

If we accept that it is right that there should always be an appeal against a recommendation to deport, then the amendment should be inserted into the Bill. It provides that when a person reaches the end of a prison sentence, the Secretary of State shall consider the new circumstances that then obtain. If he makes a decision to deport a person, that person has the same right to appeal against it as anyone else. I beg to move.

7.30 p.m.

Lord Cope of Berkeley: My Lords, when we started this process following the White Paper--it seems like a very long time ago--there was a proposal for a one-stop appeal. I thought that that was a good proposal. It seemed to be a good idea that all the matters in dispute should be taken into account in a single appeal, both to ensure that everything was considered in the round as opposed to individual pieces being taken in different tribunals at different times and because that would speed up the process. An important aim of the White Paper was to speed up the process. However, as we have gone through all the various details of the Bill, it seems to me that the one-stop appeal has frayed at the edges. I shall not say that it has disappeared altogether, but it is fraying. These amendments would help to boost the idea of a one-stop appeal with everything being considered at the same appeal. For that reason, I have some sympathy with the spirit that lies behind the amendments.

Baroness Williams of Crosby: My Lords, I am grateful to the noble Lord, Lord Cope, for those words. I should like to revert to the amendments and ask the Government to explain to the House why they believe that their amendments assist us in achieving a one-stop appeal. We have always understood the Government's purpose in seeking a one-stop appeal to be the avoidance of the need for a series of separate appeals of the kind that has plagued them for several years and indeed plagued their predecessors. If there is to be a one-stop appeal--we have always supported that idea--that appeal, as the noble Lord, Lord Cope, pointed out, has to be able to consider all the circumstances. To limit it simply to looking at the technical correctness of a decision made by the

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Secretary of State will not adequately address the question of the removal of the asylum seeker or his ability to stay in this country.

In the period between the first hearing and the process of appeal some circumstances may have changed. Perhaps I may give two obvious examples. In the case of two Commonwealth countries, Pakistan and Nigeria, over a short period one of those countries has moved from being a democracy to being a dictatorship and the other has moved from being a dictatorship to being a democracy. Therefore, the relevant considerations as to whether someone seeking asylum should be deported have changed totally in a short period. Those are the kinds of issues, as well as personal issues--someone getting married or having a child--that should be considered at the final process of appeal so that there cannot be further reversions to judicial review or other appeals, with the process thereby being extended as it has been so often in the past.

We should strongly support that, but only if the adjudicator is able to look at all the considerations that arise; for example, compassionate circumstances, the situation in the country to which the person concerned would otherwise be returned, and so on. We think that only if all the matters relevant to the question of whether the person should remain in the UK can be considered by that appeal can it be genuinely described as meeting the promise of the White Paper.

The White Paper referred to the new appeal as "comprehensive". It said that there would be a single comprehensive right of appeal and that that should lead to finality. We find all of that very attractive. What we are troubled by is what the Government themselves seem to be doing in somewhat weakening the process of the one-stop appeal--trying to limit it, trying to constrain it and trying to limit what the adjudicator can actually consider. Therefore, we should like to know why the Government do not seem willing to support the point of view that we are expressing in these amendments--the three amendments in my name and the other amendments--which is that the one-stop appeal should have complete scope to deal with all considerations: both the past technical correctness of the Secretary of State's decision and the circumstances that affect the asylum seeker at the moment the appeal is being considered. If that happened, we believe that the ideal of a one-stop appeal could be met and the Government would avoid a great many of the problems which they have had to encounter in the past. We should like to inquire why the Government have not been able to embrace these amendments.

Lord Williams of Mostyn: My Lords, whatever result this clutch of amendments, if passed, might bring about, a one-stop appeal is certainly not one of them.

I shall deal, first, with Amendment No. 30, which was moved by the noble Lord, Lord Avebury. The government amendments are Amendments Nos. 31, 32, 33 and 34. The noble Baroness, Lady Williams of

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Crosby, spoke to Amendments Nos. 35, 36, 37 and 71. I am speaking on the basis that no other noble Lord wishes to intervene.

Far from providing a one-stop appeal, the amendment of the noble Lord, Lord Avebury, would do completely the opposite. The noble Lord's amendment would confer a further avenue of appeal on convicted persons who have been given notice of a decision to deport following the recommendation of a court. There is no such right in the 1971 legislation and I cannot find any good reason for introducing one. In the situation of which the noble Lord spoke, the sentencing court--this is not someone who has come here applying for asylum but someone with a criminal conviction--considers the circumstances and makes a recommendation for deportation. The Secretary of State then reconsiders the circumstances in full, providing his review. If his review is not fair, it can be overturned at judicial review. The convicted person--someone convicted of a crime--has a right of appeal against the sentence itself through the criminal justice system; that is, the Court of Appeal Criminal Division. Furthermore, no person who has a ground for making a human rights or asylum claim is disadvantaged because such a claim will, if refused, attract a separate right of appeal under the appropriate clause of the Bill. Whatever else the amendment does, I say again--I hope courteously--it does not produce a one-stop appeal.

Amendments Nos. 35 and 36, in the name of the noble Baroness, Lady Williams, would enable immigration appellants to bypass the one-stop system by making fresh applications direct to an adjudicator. The purpose of Clauses 74(3) and 74(4) is to set out the distinction which exists in case law, but is not apparent from the 1971 legislation, between immigration appeals and asylum appeals. The point of an immigration appeal is to review the decision which has been taken. The evidence to be considered must relate to that specific decision. The adjudicator has no part in considering what amounts to a fresh application which has not been considered by the Secretary of State. In any event, the appellant will have had the opportunity to raise further matters for the Secretary of State's consideration when invited to do so.

The Court of Appeal has ruled that asylum cases are different. For the purposes of this clause, we have included claims under Article 3 of the convention on human rights. The basis of an asylum appeal is that removal pursuant to the decision on the claim would be contrary to the 1951 convention, not that the Secretary of State's decision was wrong. In these cases, which look forward to an event in the future, it has been held that the adjudicator must consider all the evidence available to him. In asylum cases, the situation in the country of origin is generally the main element of the evidence. That situation may change between decision and appeal. The Home Office constantly monitors general situations in countries of origin and is therefore able to submit the latest information without delay.

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We have looked before at a variant of Amendment No. 71. Sub-paragraph (4A), taken with sub-paragraph (4B), would require an adjudicator to allow an appeal in the case of a published concession as if that concession was in the Immigration Rules. We have been considering the question of concessions for some time, as was explained earlier, and we have stated that we shall give adjudicators the power that the amendment proposes. But we plan to do that by reviewing, updating and rationalising the concessions and then incorporating them in the Immigration Rules. That has the benefit of empowering adjudicators to consider the matters now covered by concessions, and of empowering Parliament with some control over those concessions. After all, the point of the Immigration Rules is to set out,


    "the practice to be followed in the administration of the Immigration Acts regulating entry into and stay of persons in the United Kingdom".

Sub-paragraph (4C) would in effect make the adjudicator a first-instance decision-maker. We do not think that that can be right.

I now turn to government Amendments Nos. 31 to 34. Amendments Nos. 31 to 33 are drafting improvements to Clause 70 and have no effect on the meaning. They transfer the phrase, "could reasonably", from the first line of Clause 70(2)(a) to the beginning of each of the two options that follow. Amendment No. 34 is a correction consequential upon a government amendment agreed by this House on Report: we combined two clauses into what is now Clause 74.


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