MARRIAGE NOT A GROUND FOR LEAVE TO REMAIN

HL Deb 06 July 2004 vol 663 cc716-44

1. That a person has married a British citizen in the United Kingdom is not a ground for granting leave to remain under the Immigration Act 1971 (c. 77) if that person—
1. was granted leave to enter the United Kingdom for a period of less than six months, or
2. their period of leave to be in the United Kingdom expires in less than 3 months from the date of their marriage.
3. That a person intends to marry a British citizen in the United Kingdom is not a ground for granting leave to remain under the 1971 Act if that person—
4. was granted leave to enter the United Kingdom for a period of less than six months, or
5. their period of leave to be in the United Kingdom expires in less than 3 months from the date of their application for leave to remain.

The noble Countess said: My Lords, when I suggested at Report stage the possible introduction of a measure such as that in the amendment it was because I had a sudden vision of a vast bureaucracy waiting in the wings for the enactment of Clauses 19 to 24. I have been in your Lordships' House long enough to recognise that each time we have a new Act of Parliament we seem to double the number of officials and civil servants. That worries me somewhat.

Would it not be easier to tell all those single people to whom time-limited visas are issued that, should they wish to extend their stay in the United Kingdom, contracting a marriage here would not provide them with a ground to remain? That would be done at the time the visa was issued. I have limited the scope of the amendment to spouses who are British citizens because I recognise that we must observe the terms of EEA treaties.

I thank the noble Lord, Lord Rooker, for asking two officials from the immigration and nationality department to contact me last week. I was interested to learn that it is now EEA nationals who are a major source of bogus spouses. As the grounds for remaining on the basis of a marriage contracted with a person present and settled in the UK already are enshrined in rule 284 of the Immigration Rules, can the Minister say whether the rule is so ineffective as to require the introduction of Clauses 19 to 24 for all marriages? If not, why are those clauses not restricted to applications for marriages to EEA nationals only?Is there a problem?Would such discrimination go against the terms of the treaty?Is this a problem common throughout the EEA and, if not, why is the UK so disadvantaged?

I have no intention of pressing the amendment to a Division. I realise that the wording is faulty. However, I still suspect that there may be some less cumbersome way to deal with the problem. I beg to move.

6.15 p.m.

Lord Dholakia

My Lords, I support the amendment. The Minister was good enough to say earlier on that he does not listen to the ragbag of stuff in the Daily Mail. But this gives a completely different impression that this legislation has been pushed forward in the House of Lords and at one time did not have the scrutiny of the Joint Committee on Human Rights, which we have now received. This is very much a reaction to the headlines in the Daily Mail, the Express and the Sun about sham marriages. No one condones sham marriages. Even one is unacceptable and the figure that the Minister identified—up to 2,700—is worrying. I have studied his letter to the noble Countess, Lady Mar. He said that the main objective of the clause relates to non-EEA nationals marrying EEA nationals. That is a matter for European Community law. Why are we interfering with UK domestic law in this matter?

It would be particularly helpful to me if the Minister were to provide some statistics about where this fundamental abuse of marriage takes place. Are we talking about non-EEA nationals or people from Commonwealth countries?So far I have not seen any statistic which confirms that.

The amendment tabled by the noble Countess, Lady Mar, is appropriate for two reasons. First, the present immigration legislation provides adequately for entry clearance to be obtained for the purpose of marriage. One has to make the appropriate inquiries in this country regarding the basis of the issue of a certificate. If that certificate is not issued, one cannot come to be married in this country. If the certificate is issued, there is no problem. Why are we not controlling that aspect to ensure that only people who have the right to marry in this country are granted leave to remain?

Secondly, one is not allowed to change one's status after entering the UK. A student has to return to his country if he wishes to be married and a visitor has to do the same to obtain the appropriate certificate to enter the UK. Why are those rules not sufficient to deal with this problem?

Over a period of years the Home Office has moved away from the primary purpose rule, to which the Minister and I did not subscribe, and we have reached a stage where it was initially confirmed that leave to remain would be granted only when someone has had a stable marriage for a period of one year. That period has been increased to two years. If two years have been completed, leave to remain in the United Kingdom is granted.

There are ample safeguards in the existing legislation. In February, according to published figures, over 60 arrests were made in relation to sham marriages. If that is the case, why do we not use the existing law? Why can the Minister tell us that over 2,300 sham marriages took place in 2003 and only 60 people were arrested? I would much prefer that anyone who gets involved in a sham marriages is not allowed to stay in this country. I do not think that anyone has a problem with that.

But what the Minister proposes is not the way to deal with the situation. Why do we have to use marriage registrars as tools for immigration control? The Home Secretary at one time said I read it in a newspaper—that people who live in this country should marry people who are here. That does not build confidence. It is the right of individuals to marry whom they wish, but that must not in any way evade immigration control.

The amendment in the names of the noble Countess, Lady Mar, and my noble friend Lord Avebury makes sense. No one can use marriage as grounds to remain in the United Kingdom. The amendment gets rid of the role of registrars and the Home Secretary's role in determining who should marry whom. There is no need for a separate system of monitoring, because any appeal could be determined under the existing legislation and over 60 arrests have been made, so the present law is adequate to deal with the matter.

There are matters of serious concern, particularly among minority communities. I saw a headline in one of the ethnic papers, which said, Can we marry, Mr Blunkett?". The article was endorsed by the Labour Peers, the noble Lords, Lord Ahmed and Lord Parekh, by the Conservative Peer, the noble Baroness, Lady Flather, and by myself. We must be careful. The Home Secretary has better things to do than going around saying that he objects to particular marriages.

We have every right to control sham marriages, but it should be done on the basis of the amendment suggested by the noble Countess. If European law needs revision we should consider that rather than interfering with our domestic law.

Lord Avebury

My Lords, we have had two debates on the Government's new marriage clause, to which the amendment relates, but this is the first time we have considered it, as my noble friend said, with the benefit of the advice of the Joint Committee on Human Rights. I would like to place on the record our extreme gratitude to the committee for the rapidity and thoroughness of its work on all the clauses involved in recommitment as well as on other matters that invariably come before your Lordships that may have human rights implications.

We fully support the Government's aim of clamping down on sham marriages and we acknowledge that the increasing number of reports made by registrars under Section 24 of the 1999 Act indicates that further measures need to be taken to solve the problem. However, we have not been convinced that the existing powers, as my noble friend said, under criminal and immigration law are insufficient to curb the use of marriage as a means of evading immigration controls.

In that we are greatly reinforced by the discussion in paragraphs 36 to 81 of the JCHR report. The fact that almost half the report is devoted to the issue reflects its importance and the sensitivity of the human rights at issue, as we have sought to persuade your Lordships on two previous occasions.

For good measure, the JCHR not only enumerates the ECHR rights in Articles 12 and 14 but also the provisions in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which the United Kingdom is also a party. The first question the committee asked was whether the requirement in Clause 19(3) that express authorisation must be obtained for a marriage is a breach of Article 12 of ECHR; the right to marry. As it points out, although that right is according to international law, the wording is not interpreted as conferring an unlimited discretion on governments to circumscribe the right because otherwise Article 12 would be redundant.

Any restrictions on the right to marry have to be for a legitimate aim and must be proportionate. Thus, for instance, it was held that laws preventing prisoners from marrying were not within the scope of Article 12. We have to apply the same tests of legitimacy and proportionality to the proposals before us. In that regard, the JCHR has picked up the point we made in Committee that without knowing more about the Section 24 reports and the "striking discrepancy", as the report calls it, between the 2,251 reports by registrars and the 37 persons charged with criminal offences, we are not in a position to reach a conclusion.

As the committee says, we also need to know how many people have been refused leave to remain as spouses on the grounds that their marriages were sham; Amendment No. 15 touches on that point. The JCHR says that there is a significant risk that the proposed restriction on the right to marry may be disproportionate. It gives three substantial reasons, which I shall not attempt to summarise. It concludes that there is a significant risk that the requirement to obtain permission to marry as presently drafted will be incompatible with the right in the ECHR.

The committee also raised discrimination against persons who belong to a religion other than Church of England, to which I referred in Committee. The noble Lord, Lord Rooker, said that there was, no evidence of sham marriages in the Church of England".—[Official Report, 15/6/04; col. 696.] However, the committee did not consider that "a sufficiently weighty justification" for treating members of one religion preferentially in a private matter that affects almost everyone.

Finally, the committee takes up a suggestion I made in Committee that it should consider the application of Article 14 on non-discrimination together with Article 12 on marriage since the clause restricts the rights of non-EEA nationals to marry and therefore treats them less favourably because of their nationality. The committee says that in principle a prior authorisation requirement could be justified if it applied only to those in the UK unlawfully and that more generally it is legitimate to regulate the right to marry so as to prevent the exploitation of marriage as a means of circumventing immigration control.

But as drafted, it considers that there is a significant risk that the proposals will be found to discriminate on grounds of nationality without objective and reasonable justification. It is profoundly unsatisfactory that we should be considering the advice of the JCHR on this important matter at the eleventh hour and without the benefit of a reasoned answer from the Government to the detailed objections that they raise to the clause.

We regret that decisions are not going to be made on the basis of reasoned argument and that Ministers can easily cast aside the opinions of a committee established by your Lordships for the purpose of ensuring that we avoid making human rights errors that will land the Government in the courts. In the past the Government have ignored the JCHR's advice and have good reason to regret it. I hope that that will not happen again.

Baroness Anelay of St Johns

My Lords, I have tabled two amendments in the group, Amendments Nos. 20 and 23 to which it may be convenient for me to speak. Amendment No. 23 is supported by the noble Lord, Lord McNally, and the noble Lord, Lord Avebury. In referring to Amendment No. 20, it is a case of putting the cart before the horse. The nature of Third Reading procedure means that I know it is difficult for the Minister to move his amendments until the end when he is responding to everyone else's.

Although the Minister has not yet moved his amendments in this group, I shall welcome them when he does so because they more than adequately respond to the concern I reflected in my Amendment No. 20. The difficulty is that all of us start from the position that the noble Lords, Lord Dholakia and Lord Avebury, have so properly enunciated: we are all against the use of sham marriages for the purposes of obtaining residence in this country. That is not what the institution of marriage is about.

After that we get into difficulties as to how the measure should be applied. I say to the Government that we want to support them if we can but so far we are not convinced that they have properly put in place a mechanism to prevent sham marriages taking place. Therefore, I think that the Government have gone one step further in the right direction. I shall ask the Minister to speak to those amendments rather than simply repeat everything in relation to my Amendment No. 20.

6.30 p.m.

Amendment No. 23 reflects a concern that I had at earlier stages of the Bill. I pointed out that, as we are entering wholly uncharted territory in creating this super-league of registrars, it would be very valuable to have some way of reporting back to Parliament on the work that they were doing, and it would be valuable to know whether or not the Government's new provisions were having the impact that they intended or whether there were unintended consequences. The Minister had given his reasons for rejecting those amendments.

Last week, I had a very helpful meeting with the Joint Council for the Welfare of Immigrants. I am grateful to its members for taking the time to meet me. They put forward Amendment No. 23, which is before the House today. I hope that the approach that it adopts appeals more to the Government than did my original attempt. It provides for the Secretary of State to appoint an independent monitor, who would report on the refusal of permission to marry. He would report to the Secretary of State and the report would be laid before Parliament. Such an independence of approach could be very valuable indeed.

Earlier in our debates today—I noted that it was at about 3.40 p.m. when we were debating Amendment No. 3—the Minister seemed to say that he thought that that was a good idea. He referred to the fact that my idea of a monitor has a precedent in the 1999 Act, which creates an entry-clearance monitor. Indeed, he reminded us of other examples. Therefore, I hope that there is an appropriate read-across to this proposal. An independent monitor would be a valuable step forward here as well.

Baroness Carnegy of Lour

My Lords, government Amendments Nos. 16 to 19, 21 and 22 in this group are a handsome response to my noble friend's Amendment No. 20 and to the discussion that we had at an earlier stage. When we were debating this matter earlier, I asked what the position would be as regards Clause 21, which relates to Scotland. Looking at that clause, I am not sure whether any party to the purported marriage must appear with the registrar. If no one appears, the safeguard which the noble Lord is building in will not be possible. I wonder whether anyone who has it in mind to perpetrate a sham marriage will flee to Scotland to do so. I am not sure that that would be desirable.

Did the Government discuss this issue with Scottish Ministers to ascertain the position? Last night, I was lucky enough to be invited to a reception at the Scotland Office in Dover House and the First Minister was present. At that point, I had not realised quite what the position was. If I had, I think that I would have discussed it with him over a glass of wine. Does the Minister know the answer to that now?

In relation to Amendment No. 23, it seems that it is highly desirable to have some form of monitoring, and an independent monitor might well be a fairly unbureaucratic and inexpensive way of achieving that. I hope that the Minister will look sympathetically at the proposal.

Lord Lester of Herne Hill

My Lords, I intervene as a member of the Joint Committee on Human Rights. I am glad to do so in the presence of the noble Lord, Lord Judd, who, like me, has the great benefit of serving on that all-party, and beyond-party, committee. I shall explain the reason for my intervention.

Parliament has not been well served by the Home Office in the way in which these human rights issues have been dealt with. At the beginning of our report, which was published yesterday, we say at paragraph 3: We have made it clear in a number of reports that we regard it as unacceptable that amendments having significant implications for human rights should be introduced at a late stage in a Bill's passage through Parliament, without a clear explanation of the Government's view of the human rights implications. We find it particularly regrettable that we find ourselves once again in the very same position so soon after having made clear that such a practice undermines parliamentary scrutiny of legislation for compatibility with human rights. Such scrutiny is crucial to the democratic legitimacy of the Human Rights Act 1998. We once again draw this to the attention of each House". We work very hard; we have an excellent staff; we attend meetings; we consider reports; and we produce them as quickly as possible. The earliest that we could produce a report that could be of any benefit to Parliament and to this debate was yesterday.

My noble friend Lord Avebury has done the House a great service in summarising, in a way that I do not need to do, some of the main issues that we raised in the context of marriage and sham marriages. However, the situation is wholly unsatisfactory for this reason. Having done all that work and having produced what we consider to be a cogent report, it would be impossible for us to expect the Minister now, although we would like him to do so, to respond properly in this debate and before the end of Third Reading to the points that my noble friend Lord Avebury summarised. The net result will be that, in a thinly attended House late in the afternoon, the luckless Minister will have the task of responding to a report as best he can and we shall then move on.

What will be the result of that? There will be no effective parliamentary scrutiny of these human rights issues and, as my noble friend Lord Avebury said, the matter will end up in court. Although I practise at the Bar, I regard it as a misfortune whenever legislation is passed in a form so defective that judges and lawyers have to come to the rescue. That does no one any good—not even the legal profession. It is dispiriting and it is entirely the fault of the Home Office. I am sure that, when he replies, the noble Lord, Lord Rooker, for whom I have great respect and whose love of parliamentary democracy and respect for Parliament is beyond reproach, will, in some sense, apologise. I am sure that he will. But, of course, that will not make good what has been done on this occasion.

This is not an ordinary Bill. It is one that affects the rights of one of the most vulnerable groups of people in this country. I must choose my words carefully—I am tempted to go over the top, but I shall not. I hope that this is the last occasion in the lifetime of this Government, or any future government, that something of this kind happens. When it does, we let down the parliamentary process and, ultimately, we must resort to litigation, which is a great misfortune. Finally, I want to ask one specific question. It is a narrow but important one. In paragraph 46 of our report, we point out that: The legislation is… silent about the purpose of the open-ended power in the Secretary of State to exempt certain classes of individuals subject to immigration control from the new requirements". We point out: There is no indication of the sort of differentiations which might be made between different categories of people". I am sure that we would be grateful for an answer to that specific point and also for a reply to the various other points that have been made in our report.

Lord Judd

My Lords, I hesitate to intervene. However, I do so simply on this point because I am a member of the Joint Committee on Human Rights. Like the noble Lord, Lord Lester, I am second to no one in my admiration for my noble friend and the way in which he undertakes his work. Therefore, anything that we say contains no personal criticism of him whatever. But the Joint Committee is an all-party committee and the Government should be under no illusions that the points raised by the noble Lord, Lord Lester, were strongly expressed by everyone on the committee, whatever their party allegiance.

Lord Rooker

My Lords, I am very grateful for, and embarrassed by, some of the things that have just been said, particularly, I freely admit, in view of the fact that, until the noble Lord, Lord Avebury, was on his feet, I did not even know that the report was being published yesterday. Before coming back on the scene, I have obviously tried to get myself briefed on the amendments that we are discussing today and on some of the issues that were not in the recommitted part of the Bill. I wanted to be updated, but I did not know that the report had been published. But I am not hapless; I am angry that I did not know that it had been published. I clearly could not come with a response in 24 hours. I also hope that this is the last time that happens.

Draft Bills are published much more frequently; in fact, one is due imminently. If we are serious about the scrutiny of legislation, serious about getting it right and serious about human rights legislation, we cannot later say that we regret putting the Bill on the statute book but we have done it we will slip round it. That is not on.

I do not know the background and the chronology of events or why the committee did not report. I always speak at this Dispatch Box on behalf of the Government, unless I am speaking for myself. At the moment, I am speaking for myself and for the Government in apologising to your Lordships' House. The Government's treatment of the committee could be bordering on contempt in not allowing sufficient time for scrutiny because I cannot respond.

The Third Reading is set for today. I do not know what procedures will be used in the other place when its Members get this Bill back. Clearly they must have plenty of time to talk about the recommitted issues as they did not debate them when the Bill was before them. I hope that there will be sufficient time for the JCHR report to be considered in the other place, and that the Government somehow concoct a response to the report before amendments are discussed. That is the minimal response. I have no knowledge that this is being put together but I certainly hope so.

If I were in the House of Commons as a Minister—let alone as an Opposition or Back-Bench Member—and there was no response to the JCHR report in the amendments that come from this place, I would have one hell of a row. It will be very substantial block of amendments—almost a Bill on its own.

That is my view as a Minister, not just as an individual Member of the House. This situation puts me in a position where I cannot do my job of representing the Government to this House. I am critical of the machinery, but my job is to represent and speak for the Government in this House. I cannot do that as I would wish to as I have been placed in this position. The Government therefore lose out and we ask for trouble next time around. That situation has to be corrected in future.

I would like to say to the noble Baroness, Lady Carnegy, that she has got it dead right about Scotland. I will come to that point as I will go to my prepared notes in a jiff. In Scotland, there is no requirement to turn up. The situation will be looked at in case there is a problem.

This comes back to the issue of marriage tourism that I raised in Committee—people from overseas who want to get married, probably not on a bridge but perhaps in a castle or somewhere similar. In those cases, it may not be possible to turn up and give notice. The noble Baroness, Lady Carnegy, has got it dead right and has not misread the Bill or the amendments.

I will now proceed with the notes that I have. They were prepared by the Home Office in advance of the Bill and the remarks that I have just made.

Under Amendment No. 15, a person married in the UK, or intending to marry in the UK, would not be eligible to apply for leave to remain where he, or she, has been granted less than six months' leave or only have three months or less of his current leave remaining.

In April 2003, a similar provision to subsections (1)(a) and (2)(a) of the amendment—the six months' leave point—was included in the immigration rules. Paragraph 284 of the immigration rules requires that persons applying for leave to remain on the grounds of a marriage to a British citizen or person settled here have extant leave to remain in the UK and have been granted over six months' leave since the date that they were admitted to the United Kingdom, or have entered the UK with leave as a fiancé. That is one of the normal routes. Where a person does not meet this criterion, he would be expected to leave the UK and apply for entry clearance as a spouse. Many people do that.

While subsections (1)(b) and (2)(b) of the amendment—the three month leave point—may have a use in prohibiting persons approaching the end of their leave from entering into a sham marriage, the Government do not feel that it would be appropriate to consider it at this time. Should evidence arise that such an amendment is necessary, an amendment to the immigration rules could be made in secondary legislation. In any event, the immigration rules would be the appropriate place to make provision of this nature, not primary legislation. I hope that that point is accepted because it is well made.

6.45 p.m.

Furthermore, the amendment tabled by the noble Countess, Lady Mar, does not assist us in combating marriage abuse when it is undertaken by a non-European Economic Area national marrying an EEA national. It is the act of marriage that gives a right of residence in these cases rather than the act of the Home Office granting leave to remain. Those marrying an EEA national do not need to obtain leave to remain on the basis of that marriage to have a right of residence through that marriage. This is because the rights of residence obtained through the marriage to an EEA national are the subject of European law rather than UK domestic legislation. Their rights are irrespective of an individual's immigration status in the UK at the time of the marriage.

As noble Lords will know, all EEA nationals have the right of free movement throughout the EU. This means that they are not subject to immigration control and do not require leave to enter or remain in the United Kingdom. In order to ensure that an EEA national can exercise free movement of rights effectively, he is entitled to have his family members accompany or join him when in another member state and exercising a treaty right.

The family member therefore derives free movement rights through his relationship with the EEA national. This includes a right of residence equivalent to that of his EEA family member. In practice this means that, like the EEA national, he does not have, or need to have, leave to remain when residing in the UK. He is in the UK as a family member of an EEA national exercising a treaty right and is therefore able to obtain a residence document confirming this right. This document is issued for the length of the residence permit his EEA national family member can also obtain. This would normally be for a period of five years.

Reports from registrars and other intelligence sources suggest that fixers of sham marriages are increasingly favouring this EEA route. As an indication of this, 61 per cent of the Section 24 reports received by the Immigration Service in May involved EEA national spouses.

While we are not obliged to issue a residence document in the case of sham marriages, the burden of proof in establishing whether the marriage is one of convenience lies with the Secretary of State. This is a very difficult and a resource-intensive activity.

As such, if we are to stop spouses of EEA nationals abusing immigration law through sham marriages, the most effective option is to stop them from getting married in the UK in first place. Designated register offices in addition to the requirement for entry clearance or a Home Office certificate of approval will provide a complementary two-pronged approach to tackling this marriage abuse.

With this in mind, I hope that the noble Countess, Lady Mar, will withdraw this amendment. She said that she would not proceed with it. I hope that that explains some of the reasons why the amendment cannot be accepted. It is a seductive one until the question of where those rights come from is considered.

As noble Lords will recall, the noble Baroness, Lady Anelay, tabled an amendment at Report stage that would have required both parties to attend the designated centre together. This was resisted because as drafted it did not meet the policy aim, but I stated that we were considering the policy intention behind the amendment. Since then, she has tabled Amendment No. 20, explicitly requiring both parties to attend the centre together.

The noble Baroness stated on Report that it was important that registrars at the new designated centres should be able to use the expertise they will build up in detecting sham marriages effectively, and that it was difficult to see how they could do this if under the new measures the parties to the proposed marriage were able to give notice of their intention to marry at separate designated centres. That would be the position under Clause 19 as currently drafted. The Government agree with the noble Baroness, and have tabled Amendments Nos. 16 to 19 in response to her amendment.

Requiring only non-European economic area nationals to attend designated centres or allowing the couple to attend separately would potentially leave a large loophole in the legislation. The fixers of sham marriages will be able to have participants to the marriage give notice separately which, of course, will deny registrars the opportunity to observe the interaction between couples at the notice stage and reduce the ability of registrars to identify suspicious marriages for the purposes of Section 24 reporting.

By requiring parties to the marriage to give notice together we shall ensure that registrars have an opportunity to observe interaction between couples, enabling them to form a view on whether an intended marriage should be reported as suspicious under current legislation. They will become familiar with the signs indicating a sham marriage and, therefore, be in a better position to be able to identify potential offenders and, in some cases, repeat offenders. One would think that people would not be so stupid as to return to the same register office, but it is amazing what people do. It happens; people have a forged passport and turn up wanting it renewed, never thinking that someone may be checking on it the other side of the desk. It is amazing and it could arise.

Where suspicions are aroused, Section 24 reports can be made and the Immigration and Nationality Directorate's increased commitment to enforcement and intelligence in this area will mean that, where appropriate, action can be taken. Amendments Nos. 21 and 22 will amend subsection (2)(b) of Clause 23 to bring the powers available in Northern Ireland's enabling clause into line with the amended provisions in Clause 19(2). If there are signs that the problem of sham marriages has been displaced to Northern Ireland, these amendments will give the Secretary of State, after consultation with the Registrar General for Northern Ireland, the power to require that parties to a marriage, involving a European economic area national, give notice together and in person at a designated register office. With that in mind, I would hope that the noble Baroness, Lady Anelay, will withdraw her amendment and that noble Lords will agree to the amendments that I shall move in due course.

The noble Baroness, Lady Anelay, and the noble Lords, Lord Kingsland, Lord McNally and Lord Avebury, have tabled Amendment No. 23 requiring an independent monitor to be appointed in order to report annually on refusals for permission to marry under subsection (3)(b) of Clause 19. Such a monitor does not exist for any of the Immigration and Nationality Directorate's other managed migration functions, such as leave to remain applications. At this point, the Government do not believe that it is appropriate to appoint one to report on this function. We believe that it would be adding unnecessary bureaucracy.

All the Immigration and Nationality Directorate's practices and procedures are subject to compliance with the Race Relations Act 1976, as amended, and are subject to independent review by the race relations monitor. The current monitor reports annually to Parliament and operations under subsection (3)(b) would be included within that remit. So there would be a mechanism for reporting to Parliament.

As I have stated in each of our debates, the Government appreciate the importance of parliamentary scrutiny of the workings of these clauses, which I would have thought would have included the JCHR points that I made earlier. However, we do not feel that an annual report from an independent monitor would be a suitable vehicle in this instance. As I stated on Report, the Immigration and Nationality Directorate officials are seeking to identify a suitable government publication in which the numbers of applications made for certificates of approval and the numbers of successful and unsuccessful applications could be included. I pointed out that some of the issues probably could not be reported if people were simply making inquiries. This publication, once we have found a suitable one, would then be laid before Parliament.

In Amendment No. 24 the noble Lords, Lord McNally and Lord Avebury, have requested that a statutory right of appeal be introduced for those persons who are refused a certificate of approval by the Home Secretary under subsection (3)(b) of Clause 19. The Government do not believe that a statutory right of appeal is necessary in relation to such refusals, as a decision to refuse a certificate of approval will be subject to challenge by way of judicial review. All applications for certificates of approval will be considered and determined in accordance with published guidance, which will set out the factors to be taken into account by caseworkers when determining such applications. Where an application for a certificate of approval is refused, a person would be free to challenge the decision by judicial review on what are commonly known as Wednesbury grounds—by the way, that is a place in the Black Country in the Midlands—which is that no reasonable person in the same position could reasonably have reached the same conclusion. For example, a person might challenge the decision on the basis that it was not made in accordance with the published guidance, or that the published guidance was itself unreasonable. Therefore, we think that judicial review is a sufficient and appropriate method of challenge to decisions to refuse an application for a certificate of approval.

In light of that, I would hope that noble Lords will not proceed with those amendments.

Some further points were raised. I shall refer to that raised by the noble Lord, Lord Lester, and my noble friend Lord Judd on the JCHR report. We are satisfied that the provisions are fully compatible. We appreciate that the timing is not ideal. We shall respond in detail in writing, as the points raised merit a detailed response. That is the official Home Office response.

Lord Judd

My Lords—

Lord Rooker

My Lords, I have not finished yet. I am saying that in my view a response in writing, even if it is an interim response, should be in front of the House of Commons when the Bill returns to that House with the Lords amendments. That is only fair because of the major changes that have been made in this House. I shall give way to my noble friend.

Lord Judd

My Lords, I am very grateful to my noble friend for giving way. Does he agree that the advice that he has just conveyed to the House is in itself disturbing? No Minister, of course, would bring any legislation to this House unless there were a statement saying that it was compatible with human rights obligations. Our job in the Joint Committee is to examine that and to see whether it is valid.

Lord Rooker

Yes, my Lords. No Minister would sign the front of the Bill unless he received written advice to the effect that it was compatible. That is the case. I just do not know what the procedure was. The Bill was introduced, it went through Committee stage and Report stage in this House and was recommitted to a Committee so that some amendments could be added. It was not another Bill. I am not sure whether a signature was required because the Bill was that which was presented to Parliament, both to the first House and then to this House. I have never been required to sign to the effect that a particular amendment to a Bill is compatible. On the other hand, the advice that one receives would cover these points. The Committee has a job to do.

Lord Lester of Herne Hill

My Lords, the way in which the Minister has put the point is entirely fair and practical and shows his commitment to parliamentary scrutiny. I am sure that in the Commons his words will be read and I am sure that the committee will appreciate what he has said.

Lord Rooker

My Lords, I appreciate that. I am speaking from experience and I am trying to help the Government. We have placed ourselves in a difficult position. I believe that an interim response in writing ought to be made available and I have said that from this Dispatch Box, so that is it.

A noble Lord raised the point about people's changing status once they are in the UK. Persons who have been granted six months' leave or less since entering the UK may not switch into marriage. Those may be people on short-term visas, such as students. Anyone else can switch into marriage if he or she has been granted over six months' leave since entering the UK. However, those provisions apply only to persons marrying British citizens and persons settled here; they do not apply to European economic area nationals exercising treaty rights.

I was asked about Clause 19(3)(c) and who would be exempt. We envisage that persons with settled status in the UK will be exempt under subsection (3)(c). Thus the clause is being left to secondary legislation under the negative resolution procedure, and will be subject to the usual Parliamentary scrutiny procedure. I am not clear whether that answers the point about paragraph 46, which the noble Lord, Lord Lester, asked me about. A note has not winged its way to me, and I shall see if I can get one before we finish tonight, because I can refer to it on another amendment, as I did in our earlier debate on Zimbabwe.

I hope that is a sufficient explanation, that this apology is accepted, that noble Lords will not, therefore, push their amendments to a vote and that, in due course, they will support the amendments I shall move on behalf of the Government.

7 p.m.

The Countess of Mar

My Lords, before the noble Lord, Lord Rooker, sits down, could he respond to my question about Rule 284? Is it working properly?

Lord Dholakia

My Lords, I hope the Minister can write to me if he is not able to answer my question. The purpose of a sham marriage is one of non-EEA nationals marrying EEA nationals for the purpose of leave to remain in the United Kingdom. Would the noble Lord, Lord Rooker, agree that there is nothing to stop non-EEA nationals marrying an EEA national in a European country and then coming to this country and exercising their rights here? There is no way you can control that particular situation.

Lord Rooker

My Lords, off the top of my head I think that is correct, but I shall take advice and write to the noble Lord, Lord Dholakia. That was one of the issues raised in our earlier debates. I can only repeat the point I made about paragraph 294 at the opening of my speech. As I made clear, the amendment of the noble Countess, Lady Mar, does not assist us in combating marriage abuse when it is undertaken by a non-EEA national marrying an EEA national. As I said, Paragraph 284 of the immigration rules requires the persons applying for leave to remain on the grounds of marriage to a British citizen or persons settled here, to have extended leave to remain in the UK and been granted over six months' leave since the date they were admitted to the UK, or have entered the UK with leave as a fiancé. Of course, that happens up and down the country many times a week. I suspect.

When a person does not meet these criteria, they would be expected to leave. Quite clearly, if we have a position of alleged sham marriages, something is not working in the rules the way they are intended. It may sound like a glib answer to the noble Countess, but that must be the position. Hence, we need these extra powers.

The Countess of Mar

My Lords, the noble Lord, Lord Rooker, will not mind my saying that I think that was a dreadful answer. It does not answer my question.

I am very grateful to noble Lords who have taken part in this debate. We have given the subject an airing, and perhaps the JCHR will be proved right. My instinct tells me that this group of clauses is not a good one. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 [England and Wales]:

Lord Rooker

moved Amendments Nos. 16 to 19:

Page 18, line 37, leave out "a notice" and insert "the notices"

Page 18, line 39, leave out "may" and insert "shall"

Page 19, line 1, leave out paragraph (b) and insert—

"(b) shall be delivered to the superintendent registrar in person by the two parties to the marriage,"

Page 19, line 5, leave out first "the" and insert "his or her"

On Question, amendments agreed to.

[Amendment No. 20 not moved.]

Clause 23 [Northern Ireland]:

Lord Rooker

moved Amendments Nos. 21 and 22:

Page 21, line 27, leave out "may" and insert "shall"

Page 21, line 28, after "given" insert "by both parties together"

On Question, amendments agreed to.

[Amendments Nos. 23 and 24 not moved.]

Clause 26 [Unification of appeal system]:

Lord Goodhart

moved Amendment No. 25:

Page 26, line 5, at end insert—

"( ) If an application under section 103A(1) is brought by a party to the appeal other than the appellant, the appellant's costs—

(a) in respect of the application, and

(b) in respect of the reconsideration,

shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22) (funding of services)."

The noble Lord said

My Lords, this is a very short point. The provisions of Clause 26 of the Bill relating to legal aid for reconsideration of the original decision of the appeal at the asylum and immigration tribunal are apparently based on the assumption that the application for reconsideration will be made only by an asylum seeker or immigrant. In fact, an application can be made by the other party to the appeal, the Home Office, which may be unsatisfied with a decision in favour of the asylum seeker or immigrant.

The provisions are that legal aid can be granted to an asylum seeker or immigrant only retrospectively. In the case where the asylum seeker has been successful before the tribunal and then the Home Office has obtained an order for reconsideration, it does seem unfair that the asylum seeker, or lawyers, should be entitled to the benefit of legal aid only retrospectively. Having won first time, surely the asylum seeker must be entitled to legal aid to defend his or her position. I beg to move.

Lord Kingsland

My Lords, I find the argument of the noble Lord, Lord Goodhart, very compelling.

Lord Filkin

My Lords, I can assure the noble Lord, Lord Goodhart, and the House that Clause 103D will only apply to reviews and reconsiderations instigated by the appellant. This is already explicit—or perhaps implicit—in the text of Clause 103D(1) and (3). They use the words "on the application of the appellant" as a prelude to the new provisions conferring new powers on the tribunal and the High Court to order payments out of public funds. In all other circumstances, the usual legal aid scheme will continue to operate, including the means and merit tests and the usual arrangements whereby the court or tribunal can order the losing party to pay the winning party's costs, without any drain on public expenditure. Nothing, therefore, in Clause 103D applies in relation to cases where the review is instigated by a party to the appeal other than the appellant. I hope that that clarification is helpful to the noble Lord, Lord Goodhart.

Lord Goodhart

My Lords, I am grateful to the Minister. It certainly is not explicit, and it was not clear to me that it was implicit. In view of what the Minister has now said, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart

moved Amendment No. 26:

Page 26, leave out lines 6 to 8.

The noble Lord said

My Lords, this is much more serious group of amendments. I speak also to Amendment Nos. 27, 28 and 30 to 33. These are all amendments to Clause 26.

Clause 26 eliminates the adjudicators and provides for appeals by immigrants or asylum seekers from an adverse decision or an immigration officer direct to the asylum and immigration tribunal. If that appeal is rejected, the immigrant or asylum seeker can apply to the High Court for an order requiring the tribunal to reconsider its decision on the ground that it may have made an error in law.

The Bill inserts new Section 103D into the Nationality, Immigration and Asylum Act 2002. That is the provision which deals with costs. Under Clause 103D(1) and (2), the applicant's costs may be paid out of the Community Legal Service fund if, but only if, the application has succeeded. That is the cost of the application, not of any reconsideration which has been ordered. At the reconsideration stage, the tribunal can order the costs of both the application and the reconsideration to be paid out of the fund under Clause 103D(3) and (4). The reconsideration does not have to be successful in order to get an order, but the result has to be taken into account under these provisions. Clause 103D(6)(a) provides that if payments of legal aid are made, the amount of payments may vary according to the result. That is to enable the Government to provide mark-up success fees for successful applications. Section 103D(6)(c) provides that the power to make an order for the payment of costs, may be restricted by reference to the outcome of the appeal".

The Government have made it clear that they intend to introduce a conditional fee system for both the application and any reconsideration which may result from a successful application. There is an absolute "no win—no fee" system at the application stage because the order under subsection (1) can only be made if the appropriate court has made an order. At the reconsideration stage, the Government have said that they will limit payments out of the fund to winners or near misses, but as with conditional fees under the Access to Justice Act 1999 there will be a mark-up for successful cases.

Conditional fees were introduced by the 1999 Act for civil cases involving damages or claims to property. Conditional fees have many defects, but we have to accept they are here to stay in civil cases. Up to now, they have not been introduced in public law cases and they cannot, under the 1999 Act, be introduced for criminal cases. If ever the conditional fee system was applied to criminal appeals, I believe there would be an absolute uproar in the legal profession and beyond it. What would the effect of that be? Of course, it would depend on the amount of the "success fee" or mark-up. If we assume that it is 100 per cent—that is, double the standard fee being given if successful; it certainly would not be more than 100 per cent, and could well be less—it would mean that lawyers would not take a case unless the chances of success were greater than 50 per cent, otherwise they would end up being out of pocket.

People convicted of crime must obviously be allowed to apply for leave to appeal from conviction even if their chance of success is quite small, and if the judge hearing the application for leave thinks the case is strong enough to justify leave to appeal then the appellant will get legal aid for that appeal, win or lose. The consequences of a wrongful rejection of an asylum claim can be just as disastrous as the consequences of a wrongful conviction, so I believe that legal aid for the application and reconsideration should in principle be treated on the same basis as criminal appeals. It is completely unacceptable if lawyers refuse to take a case because it only has a 40 per cent chance of success, or indeed a 20 or 25 per cent chance of success.

I am prepared to accept that some modification of the criminal appeal basis is appropriate here. For the application, what I propose is to remove the requirement that the costs of the application can only be paid if the application succeeds. That is the result of Amendment No. 26, which leaves payment in the discretion of the High Court judge who hears the application. This discretion would of course be retrospective, but I believe the court, if left with that discretion, would order payment where it was reasonable to make the application, even though it had not succeeded. Conversely, where there were no reasonable grounds for making the application, costs would be refused. The costs of the application are relatively small, because applications are determined on the basis of written submissions of the applicant, without argument. But the reconsideration stage involves considerably more time and work, because the cases have to be argued and are contested. It is true that they are legal arguments only, but they could be time-consuming, involving a full day or more.

In principle, I believe that if the application is granted, that shows there must be reasonable grounds for reconsideration and legal aid should be granted before the reconsideration hearing. I put forward an amendment at Report which would have had that effect. I have however decided not to bring that amendment back, and have instead put down Amendment No. 28, which gives the High Court power to grant legal aid in advance where reconsideration is ordered. I do not intend to press that amendment because it is not central to the case that I am making. I recognise that there could be cases in which the grounds on which a successful application has been based are misleading or incomplete. For example, failure of the lawyer making the application to cite an important decision in another case of which the judge is unaware.

7.15 p.m.

I am, therefore, prepared to accept that the order for payment of costs should be retrospective and in the discretion of the tribunal, but I believe strongly that costs should only be refused where there are no reasonable grounds for making that application. That is the effect of Amendment No. 30. If the costs are refused, reasons must be given so that that decision can be reviewed: that is the purpose of Amendment No. 31. I have passed over Amendment No. 27, which is a very minor consequential amendment.

It follows that reference to the amount of the payments varying according to the results, and to the order for payments being restricted by reference to the outcome of the appeal should be omitted. That is the effect of Amendments Nos. 32 and 33. The Bill as amended will still give protection to the legitimate aims of the Government. Applications will still be dealt with quickly, because there will be no prior applications for legal aid. Hopeless applications will be deterred because the judge or tribunal can dismiss them and refuse, in their discretion, to order costs. Lawyers in the few unreasonable cases which may slip through the filter will be punished by being refused payment out of the Legal Aid Fund.

If these amendments are not accepted, there is a real risk of injustice to immigrants and asylum seekers. That is the view of the Joint Committee on Human Rights, in a report which was published much longer ago than yesterday. These passages are from its thirteenth report of the present Session. On page 23 the committee says: It seems to us undesirable that the right of access to court for the protection of the most fundamental of rights should be made to depend for its effectiveness on the degree to which lawyers are risk-takers". The report continues at paragraph 1.85 to say: The evidence of respected bodies with practical experience in the field is that the legal aid proposals will inevitably lead to meritorious cases not proceeding because of the practical impossibility of obtaining representation, and this will in turn lead to individuals being returned in breach of the UK's ECHR obligations and of the principle of non-refoulement. We remind the Government of its obligation under the ECHR to ensure that there is available a practically effective opportunity to have the substance of any arguable Convention complaint considered, and that this obligation includes a positive obligation to take steps to make sure that there are not practical obstacles to the availability of such an opportunity". Then, in paragraph 1.87, the committee says: We agree that the effect of the proposed conditional fee legal aid regime for High Court reviews from the Tribunal will be that meritorious cases do not get brought because of the lack of representation".

I am astonished that the Government are prepared to put into the Bill provisions which will cause such obvious injustice—doubly so when that injustice could be avoided by alterations to the Bill which would protect the legitimate objectives of the Government: the deterrence of unmeritorious appeals. I beg to move.

Lord Kingsland

My Lords, the encyclopaedic preamble of the noble Lord, Lord Goodhart, to these amendments has left me with a relatively modest task. I entirely share his views about conditional fees, as indeed I explained at Report. It seems to me that they are, in principle, wrong in the context of public law matters. Not only are they wrong but also, in my submission, unworkable because the financial affairs of asylum seekers are such that they could never afford the insurance premium necessary to guarantee their legal representatives' fees in circumstances where the case was lost.

On the other hand, I also share the view of the noble Lord, Lord Goodhart, that is appropriate to award costs at the reconsideration stage, retrospectively, and at the discretion of the tribunal. The test should be a merits test and it should be a robust test without being unfair. There is no amendment which seeks to gauge exactly what the merits test should be. I shall be interested to hear whether the Government have given any further thought to that matter between Report and Third Reading.

Some of the amendments carry the name of both the noble Lord, Lord Goodhart, and myself. Since the noble Lord has already spoken to them, I need add nothing. But there is one amendment in the name of the noble Lord, Lord Goodhart, which I have been unable to support. I refer to Amendment No. 28. That is not because I disagree with the spirit of the amendment but because it seems unfair that there should be, as it were, two classes of legal aid rules for those who reach the reconsideration stage.

There are rules which are established by the High Court judge, because Amendment No. 28 says that a High Court judge, may order that the appellant's costs in respect of the reconsideration shall be paid out of that Fund", and rules that apply to those applicants who have not had such an order made by the High Court judge and therefore have to rely on the discretion of the tribunal. That seems to put the second category in a disadvantageous situation. I would like to see all those who come before the tribunal for reconsideration having their legal aid applications treated on the same basis.

Lord Clinton-Davis

My Lords, I am not entirely persuaded that the Government have alighted on the correct solution to what is undoubtedly a very difficult problem. Nor am I persuaded that the alternatives which have been postulated, notably by the noble Lord, Lord Goodhart, provide the complete answer, although I think that in theory, they are rather more compelling than the Government's case.

I plead guilty to preferring, in our earlier debates, a view different from that of the Government. I shall not weary the House with a reiteration of all the arguments. Suffice it to say, we are both dealing with situations which, by their very nature, are, at this stage, unproved and, indeed, cannot be verifiable.

I submit, therefore, that the Government should have an opportunity—two years from the enactment of the Bill, say—to determine whether their preferred way works without having any serious impact on civil liberties or whether we should revisit the matter, giving the Legal Services Commission the task of determining whether there is an arguable case, and that those putting it forward should be in no doubt that their costs will be paid. I ask my noble friend whether this idea is worth contemplating, as I believe it is.

Lord Filkin

My Lords, in responding to what have been clear and succinct speeches, I shall set out the Government's position pretty fully. That is not because I want to weary the House but if, as may well be the case, we come back to these issues time and time again—and I hope that I have the attention of the noble Lord, Lord Kingsland, on this point—it is fair that noble Lords should understand why the Government are doing this and the force of their position in this respect, so that there is no misunderstanding. When we originally introduced the Bill into this House, we had sought to remove judicial review. We did so not for any flippant or frivolous reasons but because we have a duty to this country to try to make the asylum system work. This is in the interests of those who claim refuge in our society but also in the interests of the taxpayer, the efficient use of public money and the confidence of our society that the Government are addressing the issue of asylum properly as well as addressing asylum abuse properly.

We listened to noble Lords when they said that they felt that ousting judicial review was going too far, and we listened seriously. The noble Lord, Lord Kingsland, had the courtesy to acknowledge that when my noble and learned friend the Lord Chancellor put before the House why we had listened and why we were going to change. But make no mistake—we are not embarking on a process to recreate, amendment by amendment, the old two-tier system of appeals from the original decision process that we currently have. That is for a very good reason. While undoubtedly there are some people who ought to have had further consideration, in practice the process has led to abuse. If this House is party to perpetuating such abuse, the public will express their views on the matter very clearly and strongly. I make a distinction between abuse and trying to ensure that we uphold the civilised standards that we are proud of in our society.

So we are not going to allow the recreation of a bells and whistles two-tier system which has been the central thrust of this part of the Bill. Why not? First, there is the issue of cost. The cost of legal aid for asylum and immigration cases went from £53 million in 1998–99 to £176 million in 2002–03, while the most recent figure is nearer £200 million. There are plenty of good uses for £200 million.

The cost of an individual pursuing an appeal through to judicial review is probably about £4,000. Of course it is right and proper that such an individual should be legally aided by the state if there is serious merit in his or her case, but it is not right and proper for the state to fund an appeal when there is not serious merit in the case. Our society would hold us, as a House, in contempt if we were not able to make that distinction.

There is also the issue of delay. The consequence of a byzantine structure of appeals, which is what we are trying to demolish, is that it takes well over a year—more than 62 weeks—for a person who is persistent with their legal adviser and uses every single step of the process to bring the matter to a conclusion. We are seeking to put in place a system that is fair to the appellant but can nevertheless be concluded within 20 weeks or so.

The effect of a long-running process also matters. Europol—not me and not the Home Office—estimates that 70 per cent of people who come into the EU are facilitated in doing so by criminal gangs. It is self-evident that they have to have assistance to get to Britain, either through false means of transportation or forged documentation. This is a criminally run and criminally supported business. One of the reasons that it is a good business for criminals is that people will pay them substantial sums of money to try to get into Britain and pursue an asylum claim.

Britain is attractive because the process is long and slow, and removals are difficult. Countries where the process is rapid and removals are certain are a much less attractive proposition for a facilitator who is trying to extract £5,000 from somebody in the Indian subcontinent who wants to get into another country. That is why it matters.

The final reason why the process matters is that wider society in Britain does not believe that the Government or Parliament are able to make that distinction between people who are genuine asylum cases and those who, supported by criminals, are able to make claims that are not genuine and have a state-funded process that supports them in doing so. That undermines the confidence of society in government and the administration of justice. More seriously, it also undermines the public's belief that people who are granted asylum in our society are genuinely deserving of the refuge that this country gives. That matters in terms of our society. I do not want, nor should this House want, society to think that asylum recipients are liars, cheats, crooks or frauds. That terribly damages community cohesion.

I have set out with no apology why that matters and why I fear noble Lords will be hearing me say it on a number of occasions again in the future, if, as I fear, both opposition parties choose to ignore that serious picture and vote against what we are proposing.

I turn to the specifics of the issue. Approximately 70 per cent of people who are given a "no" decision by IND lodge an appeal. In many ways, one would expect them to do so. Of that 70 per cent who have had their case heard by the independent tribunal, which has not found that they deserve asylum according to our laws and international standards, about 50 per cent then appeal to the Immigration Appeal Tribunal. The noble Lord, Lord Newton, who is in his place—

The Countess of Mar

My Lords, perhaps I may slightly correct the Minister. The first appeal is to an adjudicator, not to an independent tribunal.

7.30 p.m.

Lord Filkin

My Lords, the noble Countess, Lady Mar, is absolutely right. The first appeal is to an adjudicator in the Independent Immigration Appellate Authority. The second appeal is to the independent tribunal. I thank her for that correction.

Those figures demonstrate a level of appeal to the higher stages which one sees in no other tribunals in our jurisdiction. That is for two obvious reasons. First, the applicant has absolutely nothing to lose by playing the appeal process to the maximum. Without being too sharp about it, the lawyer has absolutely nothing to lose by taking cases that do not have serious merit, or even reasonable grounds to argue, to the next stage of appeal because they are fully funded by the state in doing so. Therefore, we have a system which provides an incentive for both applicant and lawyer to play it long. That produces the serious, negative consequences that I have described. Those consequences matter to this Government and they matter to this society.

Finally, I shall speak to the summary figures. If one looks at the number of people who appeal from the decision of the adjudicator to a higher tier of process and if one then tracks the figures around the system, only one in 10 of those people who appeal against an adjudicator's decision has that decision changed at the end of the process. If one wanted evidence of abuse, that figure would provide it. I have identified the motivation for abuse, but that figure demonstrates that there is abuse in the system. Only one in 10 cases actually leads to a change in decision.

The statistics are complex. I have put a letter in the Library of the House which explains why I am absolutely confident that that is a true and fair figure. It is the figure that should be sitting over this debate. We are not talking about a system where there is no problem and which we do not need to worry about sorting out. We need to worry about sorting it out extremely seriously and I shall watch with interest how the respective parties vote on these issues if the House divides.

That is why the appeal system matters and why the Government are committed to trying to do something about it. I shall now say where the amendments are deficient and why I do not agree with them. I shall also, as I hope is my wont, signal where there may be some common ground. I shall be interested to see whether there is any common ground on these issues.

I turn briefly to the process. Section 103D was part of the package of amendments that was introduced to replace the judicial review ouster with a new system of access to the higher courts. It is central to ensuring that only those with a genuine claim apply for review and to discouraging abuse. I have spoken about the abuse and I shall not repeat that. In exceptional circumstances, the High Court will have the power to order legal aid to be paid for the review process. An example of an exceptional circumstance might be a case where, on consideration of the review application, the High Court referred it to the Court of Appeal because it raised a question of law of general importance to the system. In those cases, it is right and proper that legal aid should be awarded, as I am sure that the noble Lord, Lord Goodhart, would recognise.

Under those new arrangements, we are asking lawyers to share the risk with the taxpayer when deciding whether a case should be pursued beyond the single tier. If we went along with the thrust of the amendment of the noble Lord, Lord Goodhart—for whom I have the greatest respect and who I know has tabled it from good principles—the broad consequence would be that virtually any appellant would be able to argue that there was some reasonable grounds. One would need an absolutely hopeless lawyer or an absolutely hopeless case, or both, not to be able to find some reasonable ground for lodging an appeal. The consequence of no reasonable grounds is that virtually everybody would continue to receive legal aid, even for cases—

Lord Goodhart

My Lords, is the Minister aware of the famous remark of one appellate judge; that the fact that a case has been argued for a week does not mean that is an arguable case?

Lord Filkin

Yes, my Lords, I take the point. Without speaking at great length, while it is, on the face of it, seductive to the House to think that there are no reasonable grounds, I envisage the consequences of that being our finding ourselves very much where we are now. And where we are now is very unsatisfactory for the reasons that I have given.

Some of the debate will turn on whether it is reasonable to put the burden on the lawyer to make a judgment about whether he should take a case to appeal. The lawyers who are making that judgment will already know the case, because, in most cases, they will have advised the applicant on legal aid when he was making his appeal to the IND. They will have advised the applicant when he made his application to the IAT. Therefore, they will know the facts and the strength of that case. Essentially, the system will be that they should be rewarded on success and that they should be rewarded on near-misses. They should be rewarded at a higher rate than would normally be the case so that they are compensated for the risk that they take, because none of us can perfectly judge which case is a winner or even which is a near miss. Our intent is not to squeeze out of the system those cases which have reasonable grounds for being argued—those cases should be brought forward. Nor is it our intention to make the legislation so stringent that a good asylum lawyer cannot make a judgment where he thinks that the case has legs and should have a hearing. If he gets that wrong, one wants him to be in a position whereby, on swings and roundabouts over time, sufficient legal aid is granted as to continue an adequate supply of lawyers. Therefore, central to our thinking is that one has to pitch the legal aid, by whatever mechanism—there could be variability in it or a debate about it—so that there is an adequate supply of lawyers who are prepared to come forward and take cases that should be taken up because they have merit. However, we have to squeeze out those cases where there are no reasonable grounds for believing that there has been an error of law on the part of the AIT and that, therefore, they justify a reconsideration.

At previous stages of the debate, I have been asked why the LSC should do not all of that. There are two reasons for that. First, the LSC will add a further delay to the loop. Secondly, it is extremely difficult, just on the basis of the case that is presented on paper by the appellant's solicitor, to make a judgment about whether that case has strong merit. Therefore what happens is that such cases are put through and it is only when the full case is argued before the AIT on reconsideration that anyone apart from the lawyer will be in a position to make a judgment about whether the case had serious merit or not. The approach involves those reasons and not any flippant reasons. If we could have done it another way we would have given it serious consideration, but it does not actually work in practice if we are to achieve what we wish to.

The mechanism of trying to incentivise lawyers to bring forward good cases—and to reward them at a level that ensures that they do so and take a reasonable level of risk—has to be crafted in detail through regulations. Those require a serious discussion with the professions to get the level right to ensure there is an adequacy of supply. That is not a flippant but a serious point. We want to ensure that there is adequacy of supply so that they do take those judgments and risks. We cannot calibrate the detail of that now.

Amendment No. 26 would enable the High Court power to award legal aid for review applications even if the application was dismissed. That is totally at odds with the policy underpinning the proposals, which is to encourage lawyers to focus on meritorious cases. Paying legal aid for unsuccessful applications will not give the deterrent effect that is so crucial to ensure lawyers do not flood the High Court and the tribunal with weak cases.

Amendment No. 28 gives the High Court power to order legal aid to be paid for reconsideration. Again that undermines the policy intention. It is important to understand the process. The review stage is a gateway. It will be a paper-based process and the High Court will only be engaged in deciding whether the tribunal might have made an error of law that affected the outcome. If it does make that decision, it will order the tribunal to consider the case in practice.

On reconsideration, parties to the appeal will be able to make oral representations and the tribunal will have the opportunity to examine cases fully. It is inappropriate for the High Court, at an ex parte hearing, to make a definitive ruling binding on the tribunal. That judgment should be made at the tribunal, as I think the noble Lord, Lord Kingsland, accepted when he spoke in his support for some of the amendments.

Let me give an illustration of why that is so. We have some experience from, I think, May 2003 to April 2004 on statutory—

Lord Goodhart

My Lords, I do not know if it will help the Minister, but I said in opening that I was not intending to press Amendment No. 28.

Lord Filkin

My Lords, I thank the noble Lord, Lord Goodhart. He is quite right. Perhaps I will spare him some of my further dire statistics, but I can no doubt share them with him on another occasion.

On Amendment No. 29, if the High Court thinks a review application has no merit, the amendment requires it to issue a certificate to that effect. I recognise the intention behind the amendment, but it is not necessary.

As the noble Lord, Lord Kingsland, knows, under the Government's proposals, which will be detailed in the regulations made in due course, we foresee the High Court will order legal aid to be paid only in exceptional cases—for example, as we stated explicitly in Clause 103D(1) where the court refers a case to the Court of Appeal. In the majority of cases the High Court is only dealing with ex parte application and will not play a part in ordering legal aid to be paid. It will be for the tribunal. Amendments Nos. 30 and 31 require the tribunal to award legal aid in every case unless there were no reasonable grounds for doing so. I have spoken to that already and shown the dire consequences that would come about.

Amendment No. 32 removes from the Bill the power to award different payments to different cases, based on the outcome of the case. What I heard from the noble Lord, Lord Kingsland—no doubt he will correct me if I heard wrongly—was that while he did not like conditional fees—I think he went so far as to say that they were wrong—he did agree that for having an effective control system, costs had to be awarded retrospectively at the discretion of the tribunal. We are four square on that point.

The noble Lord also said that he was perfectly comfortable with a robust merits test. What I understand by that is that he would see that there should be the payment of legal aid, clearly on cases that succeeded, and no doubt also, without putting words into his mouth, on cases that had merit or strong merit. Therefore I infer from what he said that there should be a flat fee on all such cases. It is possible that we are talking about whether there should be a two-stage fee or a flat fee, perhaps at a higher level than the lower level might be on a two-stage fee, applied for perhaps a tightly limited number of cases.

7.45 p.m.

If that is what the noble Lord, Lord Kingsland, intended—I am not getting a response; yes I am—I do not think the difference between us is necessarily massive. But no doubt he will correct me if I am wrong.

I have gone on long enough. I am glad to hear that I have the House's support on that as ever. But my length is for a reason. If we do not get this matter right—if this House does something to the Bill that means we fundamentally do not fulfil the duty we have to the country in being fair to asylum seekers, yet also controlling abuse of the system—we will be rightly pilloried, but also the issue will return to your Lordships' House. It is as well that noble Lords understand why we feel strongly on this issue.

Before the noble Lord, Lord Clinton-Davis, interrupts, I conclude that I agree with him that as regards the system that we intend to put in place—with or without modifications, if there is scope for modifications—we would be very happy to give a commitment that we will review its operation over a two-year period and will put the report of that review into the Library of the House, so that it is there for inspection, debate and evaluation. I hope that answers the point of the noble Lord, Lord Clinton-Davis. I hope that with those reasons the House will not feel it necessary to move to a Division because I have clearly signalled my willingness to debate within the parameters on which I had a discussion with the noble Lord, Lord Kingsland.

Lord Kingsland

My Lords, I am most grateful to the noble Lord, Lord Filkin, for those remarks. The position is this: we have put our names to Amendment No. 26—it is a joint amendment—and Amendments Nos. 32 and 34. Those amendments seek to remove the conditional fee system from the Bill. As far as we are concerned, those amendments are unnegotiable. We find a conditional fee system unacceptable.

However, for my part, if the noble Lord were prepared to say that he would go off to another place and introduce a system based on merits with a robust merits test, but which applied equally to winners or losers without any distinction between the two—if he were prepared to give that commitment on the Floor of the House—then I would be prepared to leave the noble Lord to fulfil that commitment in another place and see what came back to your Lordships' House as a consequence.

Lord Filkin

My Lords, I will respond to the noble Lord, Lord Kingsland. Although I have probably implied as much in what I said, but let me spell out our view for the avoidance of doubt. We are not wedded to the finest detail of the proposed mechanism. We are wedded to a system that focuses legal aid tightly on those cases which have real merit. That is for good reason. That means the decision can be made only at the end of the process by the tribunal. The detail has to be worked out in regulations, for good not flippant reasons, because one is also partly trying to ensure that whatever system one sets up has an adequacy of supply. You have to have an adequacy otherwise you do not meet the interests of justice.

If the debate is on how we craft a system that has a robust merits test—"significant merit" are the words that I would tend to look at—we are not wedded to a two-tier system and we are open to looking at introducing amendments that brought in a serious merits test and paid legal aid for cases that won or did not win but met the serious merits test. I give that commitment that we would be happy to do so in another place. I hope that answers the noble Lord, Lord Kingsland, clearly and unequivocally.

Lord Goodhart

My Lords, our amendments meet absolutely the legitimate intention of the Government to cut expenses, because they would make the award of legal aid retrospective, so that it would not be granted when the application for reconsideration was made on unreasonable grounds. The Minister shakes his head, but he said during the course of this debate that the Government's aim was to squeeze out cases in which there were no reasonable grounds. That is exactly our aim too. The problem is that the Minister's draft of these clauses will squeeze out not only cases in which there are no reasonable grounds but those in which there are reasonable grounds.

Lord Filkin

My Lords, I hope that I understand the position taken by the noble Lord. Noble Lords have corrected me previously, but I have said quite a lot. Essentially, I am convinced, as are our lawyers and officials, that the effect of the noble Lord's amendment would be that we would rapidly have a very large number of cases with pretty weak merits coming through the system, legally aided by the state. We would be recreating the two-tier system with all the negative consequences that I have set out.

Lord Goodhart

My Lords, in that case, I must ask for the opinion of the House. 7.52 p.m.

On Question, Whether the said amendment (No. 26) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 95.

Division No. 3
CONTENTS
Addington, L.	Mar and Kellie, E.
Avebury, L.	Michie of Gallanach, B.
Barker, B.	Miller of Chilthorne Domer, B.
Colwyn, L.	Naseby, L.
Falkland, V.	Newby, L.
Falkner of Margravine, B.	Northover, B.
Garden, L.	Oakeshott of Seagrove Bay, L.
Goodhart, L.	Phillips of Sudbury, L.
Greenway, L.	Razzall, L.
Hamwee, B.	Redesdale, L.
Harris of Richmond, B.	Roberts of Llandudno, L.
Hooson, L.	Roper, L. [Teller] B.
Howe of Idlicote, B.	Russell-Johnston, L.
Kimball, L.	Sharp of Guildford, B.
Listowel, E.	Shutt of Greetland, L. [Teller]
Livsey of Talgarth, L.	Smith of Clifton, L.
Mackie of Benshie, L.	Thomas of Gresford, L.
Maclennan of Rogart, L.	Thomas of Walliswood, B.
McNally, L.	Tordoff, L.
Maddock, B.	Wallace of Saltaire, L.
	Walmsley, B.

NOT-CONTENTS
Acton, L.	Clark of Windermere, L.
Ahmed, L.	Clark of Hampstead, L.
Amos, B.(Lord President of the Council)	Clinton-Davis, L.
Andrews, B.	Cohen of Pimlico, B.
Archer of Sandwell, L.	Corbett of Castle Vale, L.
Bach, L.	Crawley, B.
Bassam of Brighton, L.	David, B.
Borrie, L.	Davies of Coity, L.
Brooke of Alverthorpe, L.	Davies of Oldham, L. [Teller]
Brookman, L.	Dean of Thornton-le-Fylde, B.
Burlison, L.	Desai, L.
Campbell-Savours, L.	Dixon, L.
Carter, L.	Drayson, L.
Carter of Coles, L.	Dubs, L.
Chandos, V.	Elder, L.
	Evans of Parkside, L.

Evans of Temple Guiting, L.	MacKenzie of Culkein, L.
Farrington of Ribbleton, B.	Mackenzie of Framwellgate, L.
Faulkner of Worcester, L.	Mar, C.
Filkin, L.	Masham of Ilton, B.
Fyfe of Fairfield, L.	Massey of Darwen, B.
Gale, B.	Merlyn-Rees, L.
Gibson of Market Rasen, B.	Morgan of Drefelin, B.
Gilbert, L.	Morris of Aberavon, L.
Goldsmith, L.	Nicol, B.
Gordon of Strathblane, L.	Pitkeathley, B.
Gould of Potternewton, B.	Radice, L.
Grocott, L. [Teller]	Ramsay of Cartvale, B.
Harris of Haringey, L.	Randall of St. Budeaux, L.
Harrison, L.	Rendell of Babergh, B.
Hart of Chilton, L.	Richard, L.
Haskel, L.	Rooker, L.
Hayman, B.	Rosser, L.
Hogg of Cumbernauld, L.	Sainsbury of Turville, L.
Hollis of Heigham, B.	Sawyer, L.
Hoyle, L.	Simon, V.
Hughes of Woodside, L.	Taylor of Blackburn, L.
Hunt of Chesterton, L.	Temple-Morris, L.
Hunt of Kings Heath, L.	Triesman, L.
Janner of Braunstone, L.	Truscott, L.
Jones, L.	Tunnicliffe, L.
Judd, L.	Turner of Camden, B.
Lea of Crondall, L.	Wall of New Barnet, B.
Levy, L.	Warner, L.
Lockwood, B.	Watson of Invergowrie, L.
Lofthouse of Pontefract, L.	Whitaker, B.
McIntosh of Haringey, L.	Wilkins, B.
McIntosh of Hudnall, B.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 27 to 34 not moved.]

Baroness Crawley

My Lords, I beg to move that the proceedings after Third Reading be now adjourned until five minutes past nine o'clock.

Moved accordingly, and, on Question, Motion agreed to.