DETERMINATION OF APPEALS (Hansard, 19 March 1969)

§ Mr. Merlyn Rees
I beg to move Amendment No. 2, in page 6, line 1, at end insert: (2) For the purposes of paragraph (a) of the foregoing subsection the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of paragraph (a)(ii) of that subsection no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.

§ The Speaker
With this Amendment I suggest that we take the Amendments Nos. 3 and 4.

§ Mr. Rees
Amendment Nos. 3 and No. 4 make consequential changes of wording in the present subsection (2).
Subsection (1) permits an adjudicator to allow an appeal if he consider that the decision in question was not in accordance with the law or the applicable immigration rules which we discussed in 690 Committee, but otherwise, apart from cases involving the exercise of discretion, the appeal must be dismissed.
There are cases when an entitlement to admission depends on Section 2 of the Commonwealth Immigrants Act, 1962, that is, on the immigrant's satisfying the immigration officer of certain matters— for example, that he is under the age of 16, and that both his parents are living in this countrty. I am advised that it could be argued in such a case that if an immigration officer refused admission because dissatisfied on these facts, his decision would be in accordance with the law and the adjudicator could do nothing. The Amendment makes it clear that the adjudicator is to apply the law to the facts as he sees them. That is the nub and the crux of what lies behind the Amendment.
The remaining words of the new subsection (2) have a different purpose. In Standing Committee there was a debate— reported in columns 69 to 78 of HANSARD for 11th February—on an Amendment to delete Clause 8(1)(a)(ii), in the course of which the question of appeals against discretionary decisions was discussed at length. The Government remain of the opinion that it is right to allow the appellate authorities to review the exercise of discretion by the Home Secretary or immigration officers, though only within the framework of the immigration rules.
It was suggested by the hon. Member for North Fylde (Mr. Clegg), who has explained to me why he cannot be here tonight, that the Clause might be amended so as to make this limitation explicit. I agreed to consider the suggestion and the second half of the new subsection (2) is intended to give effect to it.
The new provision makes it clear that refusal by the Home Secretary to make an exception to the immigration rules in favour of a particular immigrant cannot be reversed on appeal. This is in accordance with the recommendation of the Wilson Committee in paragraph 140 of its Report. So where a person was admittedly seeking to enter for employment and settlement without a voucher, a decision not to admit him could not be reversed on appeal whatever compassionate or other circumstances might be alleged.

§ Mr. Buck
The Amendment is useful in that, in its second half, it meets a point raised in Committee by my hon. Friends. Our only doubt is about the efficacy of Clause 8 as a whole. Although we debated this matter at length in Committee, I must record our doubts about the propriety and sense of having appeals overall against discretion. We believe that there is a lot to be said for matters raised on appeal to be confined to matters of fact and of law. The Amendment says that … the adjudicator may review any determination of a question of fact on which the decision … of the immigration officer has been based.
A provision of this kind should be in the Bill—I am surprised that it needed this Amendment to do that; I should have thought that that would have been the position, even without the Amendment—and as this proposal merely makes the situation clear and points out that the adjudicator will review matters of fact and arrive at his own conclusions on those matters of fact, we have no objection to it. However, I am still not convinced of the need for the Amendment. If the Minister takes the view that it makes for clarity, we will not oppose it.