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Lord Dubs: My Lords, certainly it does. I learnt that when I was a Boy Scout many years ago. Nevertheless, I was pondering out loud as to why the flag of Saint Patrick is not used, given that the flag of Saint George is used on occasions in England. Perhaps it is not used in an official capacity, but certainly I have seen it used on occasions. Having said that, it is not for us to devise flags and symbols. Essentially, the issue is one which we would wish the people of Northern Ireland and their politicians to resolve. I hope they will soon be able to decide such matters for themselves without having them imposed upon them. I appreciate the difficulties of the Secretary of State and I think he has moved forward in the only way possible.
Perhaps I may deal with the specific questions raised by noble Lords. The noble Lord, Lord Glentoran, asked why it was the Secretary of State and not the Assembly which made the decision. The reason is that the Assembly cannot reach an agreed solution. My right honourable friend in another place has already given an undertaking that, if the Executive is able to reach agreement, he will revoke the regulations. The noble Lord, perhaps less seriously--as he put it--raised the question of what will happen if one of the government buildings moves. If one of the government building moves it will no longer be a government building, so the obligations in relation to flags will not remain in respect of that building. The Secretary of State's order-making power is enough to add additional buildings if that proves to be necessary.
The noble Lord, Lord Rogan, raised a number of specific points. First, he asked me to give an undertaking in relation to a review. I have already said that my right honourable friend in another place has indicated that if the Executive reaches agreement, he will come back to this House and revoke the regulations.
Secondly, the noble Lord raised the question of enforcement. There is in the primary regulation under which these regulations were made no power to provide sanctions. It is unlikely that in reality this clear regulation will be disobeyed. However, if it is disobeyed by anyone, it will be a matter for the courts to decide what is the most effective way to enforce the terms of the regulation.
The noble Lord also asked whether departmental headquarters would be a better criterion for determining specified buildings. We believe that listing the specified buildings is a much clearer definition. I said in answer to the question raised by the noble Lord,
The noble Lord, Lord Rogan, raised the question of the Parliament buildings. The regulation does not cover Parliament buildings because they are not government buildings. We cannot include Parliament buildings in the regulation at all; nor do we seek to do so. That is a matter for the Assembly to decide for itself. The regulations do not prevent the flying of the Union flag over Parliament buildings because they do not apply to it.
The noble Lord, Lord Monson, asked why the regulations do not require the flying of the flag on the visit of a foreign head of state. We believe that it would be better to allow that to remain permissive. In certain circumstances, requiring the Union flag to be flown from the building visited could cause disruption. The noble Lord also asked whether the European flag has to fly on any United Kingdom building. I do not know the answer to that question. Perhaps I may write to the noble Lord in respect of that point.
The noble Lord, Lord Molyneaux, suggested a consultative document on flags, arguing that the Assembly should have no role in relation to the matter. As has been made clear, the powers on flag flying are devolved not just in relation to Northern Ireland but in relation to Scotland and Wales as well. The Secretary of State is able to make decisions only because of the special powers given to him while the Assembly was suspended. We would prefer that the Northern Ireland Assembly itself determined these issues. However, it has not been able to reach agreement and so the Secretary of State, as he indicated he would if agreement was not reached, has determined for himself what he thinks to be the right course.
Finally, the noble Lord, Lord Dubs, asked whether the flying of flags should be reduced, as it has been in Scotland. The position is that the Scottish Parliament has not yet considered the flying of flags on Scottish government buildings. We think that the right course is to reflect what is the practice in the rest of the United Kingdom. That is what the regulations reflect.
I should say at the outset that the restoration, under the Immigration and Asylum Act 1999, of the right of appeal against a refusal of a visa to visit family members in the United Kingdom was, and remains, a very welcome development, and one for which Ministers deserve a great deal of credit. The abolition of the original right of appeal by the previous government, in 1993, was strongly contested at the time and subsequently caused considerable anger and resentment among the black and Asian communities in this country. I know that that anger and resentment were keenly felt by Labour Members of the other place, and in the place where it hurts most--their constituency surgeries. Indeed, the understandable concern of such Members was instrumental in the restoration of the appeal right being made a Labour Party manifesto pledge in 1997. As the Labour Party said at the time, and as Ministers have emphasised recently, we live in a multi-ethnic society where many of our citizens have close links with extended family members living in countries other than the UK. Maintaining those links is an important part of their social and cultural life--it is an important part of commitment to the family--and key family events such as weddings, births and funerals are therefore essential to that purpose. It is to ensure that families are not denied the opportunity to be together for such events that these appeal rights were established.
However, Members of the other place have not been alone in facing the frustration of those whose relatives have been unjustly denied a visa for such events. Citizens advice bureaux workers, who advise more than 50,000 people with immigration problems every year, have been only too aware of the anger and resentment caused by unjust visa refusals and the absence, since 1993, of any appeal rights. That may explain why, at the CAB service AGM on 27th September this year, the 1,250 delegates present debated and unanimously passed a motion deploring the Government's decision to negate the value of the new right of appeal by charging substantial fees to appellants.
For, under the regulations before your Lordships' House tonight, appellants will have the option of a full, oral appeal hearing, before an adjudicator of the Immigration Appellate Authority, for a fee of £500, or an appeal on the papers only, for a fee of £150. The Government have stated that these sums are necessary to cover the cost to the Immigration Appellate
Although the regulations provide for the fee to be refunded where the appeal is successful, an appellant will of course have no guarantee of success, however strong he or she believes his or her case to be. In short, there is a risk which some of those unjustly refused a visa can simply not afford to take. As the Commission for Racial Equality has noted, those likely to be using these appeal rights often live in conditions of relative economic poverty, and are normally dependent to a very significant degree on their family members in the United Kingdom to finance the visit. And yet many of these family members--and especially those in the Pakistani, Bangladeshi and some Caribbean communities--are themselves among the poorest groups in the UK. For many of those unjustly refused a visa, therefore, the fees will present a substantial barrier to justice.
In costing the administration of these appeals, the Lord Chancellor's Department has assumed that "the great majority (80 per cent)" of appellants will opt for an appeal on the papers only, for a fee of £150, rather than for an oral hearing, for a fee of £500. Of course, if the fees remain at that level, then this assumption may well become self-fulfilling, to some degree at least. However, this assumption suggests a surprisingly poor understanding of the visa application process. In reality, the great majority of visa decisions turn on the applicant's credibility--as well as that of his or her relatives in the UK. Accordingly, if cost were no object, most appellants would opt for a full, oral hearing so as to give their relatives in the United Kingdom a proper opportunity to demonstrate their credibility before the adjudicator, and to explain how the applicant had been misunderstood.
The Lord Chancellor's Department has suggested that the more impecunious appellants--that is, those most likely to be deterred by the fee--may qualify for representation funded by the Legal Services Commission, and that this would cover the fee. However, frankly it is very difficult to see how a particularly impecunious applicant, living, for example, in Sierra Leone, would be able to identify a solicitor's firm or agency with an appropriate Legal Services Commission contract, make an application for funding and get a favourable decision under the merits and financial eligibility tests, all within the 28 days allowed for lodging an appeal.
Moreover, it is in my view deplorable that the first fees to be imposed under the social welfare tribunal system should impact--almost exclusively--on black and Asian Britons. As the Commission for Racial Equality concludes, this would be,
Until very recently, the Government have sought to justify their decision to impose fees on family visitor appellants on the sole ground that "there is no new money" to cover the administrative costs. In 1997 and 1998, and arguably even in 1999 when the relevant provisions of the Immigration and Asylum Act were debated in your Lordships' House, this position was perhaps understandable, given the Government's then adherence to their predecessors' spending plans. However, circumstances have changed.
First, following the recent Comprehensive Spending Review, there is now no apparent shortage of "new money" for immigration control. In July 2000, the Chancellor announced an additional allocation of £600 million for immigration control. Even if most appellants opt for an oral hearing, then the annual cost of administering these appeals would still be less than £10 million. And, of course, if the Government's prediction of 19,500 appeals per year proves, as some suspect it may, to be an over-estimate, then the total cost will be even less. Perhaps my noble friend could tell us how many appeals have been lodged since 2nd October. Given the Government's long-standing and very welcome commitment to these appeal rights, I find it difficult to understand why they cannot see their way to covering such costs out of the additional money allocated to immigration control by the Comprehensive Spending Review.
Secondly, the Government have abandoned their attachment to the notion of a self-financing regime in another area of new immigration policy; namely, and again this is very welcome, the regulation of immigration advisers by the newly-established Office
In such circumstances, I can see no reason why the Immigration Appellate Authority should pass on even a proportion of its costs to family visitor appellants and I hope that, even at this late stage, the Government may yet be willing to reconsider their approach to these appeals. I beg to move.
Earl Russell: My Lords, I can confirm what has been said by the noble Lord, Lord Judd, about the anger felt in 1993 at the withdrawal of the right of appeal for visitors' visas. I was in my place on this Bench. I still hear, ringing in my ears, the voice of the noble Baroness, Lady Flather, exclaiming, "My brother will be subject to this Bill". She went into the Opposition Lobby and a group of around half a dozen Conservative Peers followed her.
I was standing next to her in the Lobby when the noble Baroness, Lady Thatcher, coming late into the Division and inadequately briefed, saw a group of Conservatives and followed them into the Lobby. The noble Baroness, Lady Flather, who is an honourable lady, explained to the noble Baroness, Lady Thatcher: "I am sorry, Lady Thatcher. This is not the Conservative Lobby". That is one of my very favourite memories of 12 years in this House.
The manifesto commitment to restore the right of appeal was welcome. But I am afraid that these regulations can be described only as a partial fulfilment of that commitment. Noble Lords will note that Regulation 4 requires that the money--£500 for an oral hearing or £180 for an appeal on the papers--must be paid on the spot, in the local currency, immediately before the appeal can even be lodged. I ask those of your Lordships who went away on holiday this summer: how many stepped out of the aeroplane with £500-worth of the local currency in their pocket? I can be quite sure that I did not.
If one is coming over as a family visitor to attend a life event such as a wedding or a funeral--if it is not improper to describe a funeral as a "life" event--then it matters that the appeal should be heard quickly. The process, even if it can be done, of raising £500 in the local currency, will take time. Indeed, there will be a good many people who will not be able to do it. Not everyone who wants to visit a family member in this country has an annual income of £500.
The Government are bound, under the judgment in ex parte Witham, to waive or reduce fees for those who are of limited means. I am sure that the Minister will remind us of that obligation and he will urge that it is to be pleaded against a great deal of what we say. However, to do this, one has to find a firm which is approved by the Legal Services Commission. One must contact with that firm, advise it and lodge the appeal within 28 days. Perhaps I may ask the Minister: how many people in Chittagong possess a copy of the list of firms approved by the Legal Services Commission? I reassure the Minister that I do not expect him to answer that question. But if he does not answer it, he will have conceded one of my major points; namely, he will have conceded that the application of ex parte Witham will be extremely difficult, if not impossible.
I should like to ask the Minister one other practical question. If several relatives, coming together to attend the same event, all appeal, is the fee to be paid for one appeal or severally for several relatives? I hope that the answer will be that it is to be paid for one appeal. However, if I can be given the answer to that question, I shall be extremely grateful.
My next concern relates to Regulation 2(2), which provides lists of eligible relatives. This represents what I have described in many other contexts as an entirely misguided method of drafting legislation; namely, the method of proceeding by total enumeration of individual categories. When that list is found to be inadequate, it is equivalent to opening the stable door after the horse has bolted. More regulations have to be brought in to introduce more categories. It is much better to use the recommendation of the Renton report on the preparation of legislation and to state a general principle which can then be applied by a court to the no doubt peculiar facts of any individual case.
But it would apply to all the innumerable hard cases which the drafting of Regulation 2(2) will throw up. To begin with, although it is to be welcomed that it includes an unmarried partner, it does not specify the children of an unmarried partner by a previous union. Of course, within the fact of mortality there must be many such cases. It does not mention the spouse of a nephew or niece. A nephew or niece who wishes to attend a family wedding and is told that they cannot bring their spouse with them will feel what I would regard as a very natural sense of grievance. It is not clear whether adoptive parents are treated as parents. I should be grateful if the Minister could clarify that point.
It is sometimes supposed that this difficulty in enumerating family relationships is somehow to be taken less seriously because it applies only to the extended family patterns of other countries or to the somewhat disorderly patterns of families of the 20th century. That is not so. I am at present working on an
We are told--and the noble Lord, Lord Judd, has reminded us--that the Government claim that there is no new money. The noble Lord has given one reason why that is not so; I shall give another. In the first year of this Government, when they set out to follow the previous Conservative government's spending limit, they tried so hard that they achieved an undershoot of £3 billion. The Treasury, with consummate brilliance, wrote that £3 billion into the permanent public spending totals on which future increases were to be based. The Government did not need to let the Treasury do that. Within that £3 billion was plenty of money to finance the £10 million that the noble Lord, Lord Judd, is moderately asking for.
When we used to have a right of appeal, the rate of success was between 50 and 60 per cent. It is perfectly possible that half of those will be denied an effective right of appeal by these new regulations. That is an awful lot of injustice. It will apply most severely to visitors from the Indian sub-continent--India, Pakistan and Bangladesh. I wonder whether it would have been applied if these regulations dealt with the category of people who are most numerous in the United States and Canada. I wish I did not have to ask that question. I hope that the Minister can tell me that he will withdraw the regulations and that I can forget about it in future.
Baroness Uddin: My Lords, I thank the noble Lord, Lord Judd, for bringing this matter before the House. I am greatly inhibited whenever I hear the noble Earl, Lord Russell, speak on these matters. He has expressed much more eloquently than I could have what I wish to say. However, for posterity's sake, I shall persist in repetition. I hope that one day the noble Earl will quote what I have said in one of his speeches.
I wish to make a brief intervention in this important debate which, as the noble Earl said, particularly affects so many British Bangladeshis, Indians and Pakistanis as well others who are settled here but have relatives living abroad.
I wish to acknowledge the good work of the CRE, the Immigration Advisory Service, the National Assembly Against Racism, JCWI, the CAB, ILPA and so on. It is very important that they have persisted when many of us had taken our eyes off the ball to do other things.
I also pay tribute to my right honourable friend the Home Secretary and the Government for having recognised the great distress which was caused by the previous Conservative government when, in 1993, they removed the right of appeal for refused visitors. The refusal, without redress, of entry clearance for relatives of British citizens to come to the UK for important family events made many feel that they were second-class citizens in their own country.
That concern was expressed in the annual reports of Dame Elizabeth Anson, the independent monitor of refusals that did not carry a right of appeal. Consequently, there was a manifesto commitment to reintroduce a right of appeal, and that was honoured in the legislation introduced last year by the Government.
I accept also that the definition in the regulations of a family relationship which gives the right of appeal in the event of refusal of entry clearance is sufficiently wide to cover most relatives, although not those of partners who are not married and others mentioned by noble Lords. Perhaps the Minister can tell us why this should be so in these welcome days of non-discrimination in the post-Lawrence era.
Yet, sadly, I have to speak of discrimination in the prescription of fees for those wishing to exercise their statutory right of appeal. There was, of course, no mention of fees being charged in our manifesto commitment. Had the opposition party called for this, I think our side would have called "foul". Labour's policy handbook published in October 1996 stated:
What troubles many of us is that, if both the Home Office and the FCO have agreed to waive any extra costs for administering this new right of appeal, why cannot the Lord Chancellor's Department do the same? When new rights of appeal have been introduced in the past there has been no requirement to pay court fees; so why now? If their estimate is correct, that of the 19,500 such appeals a year some 80 per cent will be reviewed on the basis of the papers alone, without an oral hearing taking place, the costs will be minimal in comparison with the whole. The 20 per cent of cases in which there are full oral hearings represent some 3,900 appeals, as against the Immigration Appellate Authority's estimate of 57,900 disposals of completed appeals of all types in a full year.
Never before have the costs of the hearing of a statutory right of appeal in an immigration case been required of a potential appellant before the exercise of that right. Even if all the appeals were unsuccessful and no fees were repayable as a result, the total revenue would be no more than £3.5 million. This Government are not subject to excessive financial restraint.
It is clear to all of us, and it must therefore be clear to the Government, that those who are most likely to exercise this right of appeal are relatives from the Indian sub-continent. That is why I raise this point. In those circumstances, the measure appears to be indirectly racially discriminatory against persons from certain parts of the world. I find that unacceptable. How does the measure square with the welcome insistence of the Government on access to justice? It can surely only deny people that access.
In denying access to the right of appeal, will these provisions stand the test of Article 6 of the ECHR? It is argued that court fees are payable in the civil courts. But we are not dealing with the civil courts; we are talking about the Immigration Appellate Authority, which was set up as part of the tribunal system 30 years ago following the Wilson committee recommendations recognising that the right of appeal is especially important when dealing with the exercise of authority by the Secretary of State. That distinguishes it from many other tribunals. Moreover, other fees, such as they are, do not in any way match the magnitude and effect of the fees in the regulations.
Is it claimed that family visits are less important than other matters for which entry clearance is required and which carry a right of appeal in the event of refusal, such as the right of appeal for those on working holidays? A visit by elderly relatives who have never seen their grandchildren or their home and school--and which may take place only once before their death--cannot be equated with the visits of working holidaymakers, yet the latter do not have to pay court fees.
Finally, I am concerned about the precedent that is set by the regulations. Will it mean that the Lord Chancellor's Department will wish to start charging fees for other appeals--for example, those regarding family settlement? That would be a retrograde step. It raises further fears among communities, which would appear to be justified if this approach continues.
In my humble opinion, there seems to be no moral, let alone any other justification for these fees. That is why there is widespread dismay and anger among the British resident ethnic minority communities. Rightly, they have a strong feeling of betrayal. One questions whether it is really worth antagonising so many of our citizens with this measure.
In the interests of the values that have guided this Government in the past, as now--caring for those with limited resources, access to justice for all, non-discrimination against the minority communities and their relatives, social inclusion and, more importantly, the right to family life--I urge them to withdraw these fees and, in so doing, restore people's faith in their intentions towards the ethnic minority communities.
Lord Newton of Braintree: My Lords, I rise to speak briefly in this important debate. I should like to express my thanks to the noble Lord, Lord Judd, for giving us the opportunity to discuss this subject. Perhaps I may say to the noble Baroness in passing that I share her feelings about following the noble Earl, Lord Russell, whose erudition and eloquence I have struggled to match since we first took part in debates together some 40 years ago.
I should mention that I am currently chairman of the Council on Tribunals. It is a role in which I have had the privilege of succeeding the noble and learned Lord, Lord Archer of Sandwell, who has made so many distinguished contributions to the proceedings of this House in that and in many other capacities.
It will come as no surprise, indeed it will not be news, to the House that the Council on Tribunals has consistently expressed general concern about people being charged fees for exercising rights of appeal. In this case, I can perhaps most easily summarise its position by simply quoting from paragraph 1.27 of its annual report for 1998-99, which states:
The council was not consulted on the detail of the regulations that are before the House. That is not a complaint; I merely want to place it on record. Had it been consulted, I have little doubt that it would have chosen to reiterate the concern it had expressed earlier. I acknowledge that this is speculation, because the council has not discussed this matter recently, but it might have wanted to express particular anxiety about the apparent scale of the additional deterrent to oral hearings; that is to say, hearings where the appellant or his relatives can be heard and seen in person, bearing in mind the excellent point made by the noble Lord, Lord Judd, that it is credibility that is at issue in so many of these cases.
The council might also have wished to refer again to a statement at the end of the passage that I quoted about the human rights implications, particularly now that the Human Rights Act has come into effect. I have no doubt that the Government have given consideration to this matter, but it seems especially relevant in the light of what has been said by other noble Lords about the problems that could arise where an appellant has very limited means.
I shall confine myself to the muted and measured language that the council used in its report and is accustomed to employing. I simply say that I look forward to listening with care to the Minister's comments on the important points that have been made in this debate.
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