EXEMPTION FROM DEPORTATION FOR CERTAIN EXISTING RESIDENTS (Hansard, 16 June 1971)

HC Deb 16 June 1971 vol 819 cc549-72 549

§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
The next Amendment is No. 34 and with it there is a list of other Amendments which I think it better not to try to describe. It appears as some sort of potpourri to me.

§ No. 94, in page 9, line 7, after '(c)', insert: 'if at the time of the decision of the Secretary of State he had at all times since the end of July 1971 been ordinarily resident in the United Kingdom and Islands; and (b) shall not be liable to deportation under section 3(5)(a)';

§ No. 99, in line 8, leave out 'five' and insert 'ten';

§ No. 35, in line 8, leave out 'been settled' and insert: 'or, if more than five years have elapsed since the end of July 1971, at all times since the end of that month been ordinarily resident';

§ As an Amendment to Amendment No. 35, in line 1, leave out 'five' and insert ' ten ';

§ No. 100, in line 12, leave out 'five' and insert ' ten ';

§ No. 36, in line 12, leave out 'been settled' and insert: 'or, if more than five years have elapsed since the end of July 1971, at all times since the end of that month been ordinarily resident';

§ As an Amendment to Amendment No. 36, in line 1, leave out 'five' and insert 'ten';

§ No. 37, in line 13, at end insert: ( ) A person who has at any time become ordinarily resident in the United Kingdom or in any of the Islands shall not be treated for 550 the purposes of this section as having ceased to be so by reason only of his having remained there in breach of the immigration laws.

§ No. 37, in line 13, at end insert: ( ) A person who has at any time become ordinarily resident in the United Kingdom or in any of the Islands shall not be treated for the purposes of this section as having ceased to be so by reason only of his having remained there in breach of the immigration laws.

§ No. 38, in line 14, leave out from beginning to 'was' in line 16 and insert: (2) The 'last five years' before the material time under subsection (1)(b) or (c) above is to be taken as a period amounting in total to five years exclusive of any time during which the person claiming exemption under this section".

§ As Amendments to Amendment No. 38, in line 1, leave out 'five' and insert 'ten'; in line 2, leave out 'five' and insert 'ten'.

§ No. 39, in line 19, leave out 'if'.

§ Mr. Maudling
I beg to move Amendment No. 34, in page 9, line 6, at end insert: 'if at the time of the Secretary of State's decision he had at all times since the end of July 1971 been ordinarily resident in the United Kingdom and Islands; and (b) shall not be liable to deportation under section 3(5)(a)'. My Amendments, that is, Nos. 34, 35, 36, 37, 38 and 39, have a limited purpose. Clause 7 to which these Amendments relate deals with the particular question of people already resident here when the Bill comes into force. I said at an earlier stage that I did not intend in any way to prejudice the position of people already here. It has been pointed out to me that there are one or two points where there is a difference between that and the Bill as it stands at the moment and, therefore, I want to change it by these Amendments.
The first point is, people who under the existing law are Commonwealth citizens and not liable to deportation on ordinary non-conducive grounds. I am ensuring that those already here will not become liable, as they would as the Bill originally was drafted, to deportation on non-conducive grounds.
Secondly, there is a rather complicated point about whether people, in order to achieve five years' residence within the meaning of the Bill, have been settled here without any restriction, or whether they are ordinary residents. The effect of 551 these Amendments is to make these changes.
First of all, Commonwealth and Irish citizens ordinarily resident here at the end of July, 1971, are not to be liable to deportation on non-conducive grounds provided they are ordinarily resident and their residence has been continuous up to the time deportation becomes an issue. This is carrying out an undertaking I gave.
Commonwealth citizens ordinarily resident here at the end of July, 1971, are not to be liable to deportation on conviction and recommendation by a court if at the relevant time they have been ordinarily resident here for five years and residence has been continuous since the end of July, 1971.
In other words, those ordinarily resident here will get the benefit first of all of not being liable to deportation on non-conducive grounds, and secondly, of the immunity from ordinary criminal grounds, after five years' residence here.
The other point which arose in Committee and which I am making quite clear is what happens when a person unfortunately is in prison during this period. The time during which he is in prison will not count towards the five years. It will not be a break in the five years. Therefore, if he spends six or nine months in jail, he will have to add another six or nine months to the end of his five years. This is what the Committee wanted, and I put forward these Amendments as carrying out my undertaking to ensure that the people already here will not be deleteriously affected by the Bill.

§ Mr. Peter Archer
Mr. Deputy Speaker, you described this group of Amendments as a pot-pourri. It is certainly a complicated series which may affect the lives of many unsuspecting families and, possibly, pose problems for many unsuspecting judges.
As the right hon. Gentleman has explained, the background to all the Amendments lies in his undertaking both in Committee and on Second Reading that immigrants who were already living in the United Kingdom, although they may not be patrial under the Bill, will not be in a worse position in consequence than they are at present. That is a wholly 552 commendable purpose, and in so far as that purpose is fulfilled by this group of Amendments, we welcome them.
Amendment No. 34, as the right hon. Gentleman says, seeks to implement that undertaking in relation to deportation on non-conducive grounds. As originally drafted, non-patrials would be liable to deportation on this ground in the first five years under the Bill, whereas under the present law they are not. The Amendment seeks to restore their existing position, provided they continue to reside here. I am sure the right hon. Gentleman did not intend to claim that latter provision as a concession. It is, of course, a restriction on the concession which he is making, but it is a restriction of which we do not complain.
Amendment No. 34 also provides, separately, that non-patrials will not be liable to deportation even if they are in breach of condition or have overstayed their leave, provided they have been here for five years. We are not entirely happy about that last provision. I am not sure why the right hon. Gentleman felt it necessary to introduce the five-year restriction period and why he did not apply the concession to all immigrants who are already here.
Subject to that, and to what I propose to say later in relation to our Amendment No. 94, we have no quarrel with Amendment No. 34. We shall merely invite the House, and possibly the right hon. Gentleman, to consider, having heard the argument, whether our Amendment may not be preferable to the way in which the right hon. Gentleman has sought to do this. It may be for the convenience of the House if, before I come to our Amendment, I indicate the view of the Opposition on each of the other Amendments which the right hon. Gentleman has introduced.
Amendment No. 35 provides that those who are now living here will receive the benefit of the Government's promise only if they continue to live here. We have no complaint about that in general but we are a little worried about the way in which it will operate in practice. A person who is now living here and who goes and lives elsewhere for three years can hardly complain if he is not permitted to return on the conditions he would have enjoyed had he lived here all through that period. But supposing he 553 has qualified under Clause 7, has resided here for five years and wishes to go abroad for a holiday, to visit his family or in the event of a family crisis. I am told that there is anxiety among the immigrant community about how this provision will operate in practice in that situation. When this man returns from abroad he will be confronted by an immigration officer. He is not a patrial, so presumably he will not go through the queue which, after the Bill becomes law, will be marked "Patrial". The immigration officer will, presumably, be a somewhat suspicious individual. That is the function of immigration officers, and we do not complain about that. But how is he now to convince the immigration officer that he is not subject to control under the Bill, that he is not liable to deportation if in breach of condition and, therefore, that he need not be interrogated to show whether he is in breach of condition? Is there a document which he can show to the immigration officer? If so, what kind of document, and how does he go about getting it?
If I may digress a moment while, I hope, still remaining in order, this question has been put to me in relation to Clause 34 (4), which, as I understand its purpose, carries a little further the protection which the right hon. Gentleman is seeking to afford in these Amendments. It is not enough in that situation to say, "It is easy. All he does when he returns is to explain to the immigration officer the circumstances of his case". Immigration officers are not as gullible as that, and we should have reason to complain if they did no more than accept explanations, even if they were given as articulately as, perhaps, the right hon. Gentleman might give them.
The situation is all the more difficult when the people with whom immigration officers will be dealing are not articulate and not clearly aware of the provisions under which they are required to satisfy the immigration officer on certain matters. Sometimes people can make elaborate provision in advance, but sometimes they have to leave the country so quickly, perhaps because of a death in the family, that they cannot make such provision. In many situations of that kind, there is not much that they can do. When they return, therefore, they must run the risk of being in the sort of situation which I have described.
554 When there is all the time in the world, however, and all they want to do is to know how to set about smoothing their path when they return, what can they do? I am sure that the immigrant community would welcome such guidance as the right hon. Gentleman can give.

§ Mr. Raymond Gower (Barry)
It occurs to me that such a person returning would have documents. For instance, if he had been here continuously over a period he would have National Insurance papers, tax returns and all sorts of things. The immigration officer would not have to rely on his word. There would be ample evidence that he had been here for a long time and been away for just a few weeks.

§ Mr. Archer
If the answer is—no doubt the right hon. Gentleman will tell us—that when such a person goes abroad in those circumstances he should take with him his driving licence, his National Insurance card and all his other personal papers, that at least will be known to the immigrant community and they can act accordingly. But I venture the hope that, when someone goes abroad on a trip of this kind, he does not have to take with him all those documents which most of us know we should lose if we took them with us and which we always leave at home. I hope, therefore, that there is a more simple answer.
I was confronted with an example of this sort of situation only a fortnight ago. A student was coming to visit his brother who is a doctor practising in my constituency. My constituent was anxious that, when his brother arrived, there would be no difficulty at the airport, it being a perfectly bona fide visit. He wrote, therefore, to the Home Office, asking what he should do, and he wrote to the British consul at the place where his brother was staying to make the same inquiry. In each case, he received the same answer, that there was really nothing he could do about it. The student was entitled to come here to visit his brother, and he must merely explain the purpose of his visit to the immigration officer when he arrived.
The doctor wrote to me saying that he was not happy about it and asking whether I could do anything to make sure that his brother would be able to enter without difficulty. I telephoned to the 555 Minister of State's private office. I received a most willing response, but I was told that there was really no procedure prescribed for such a case. When he arrives, I was told, he will simply have to explain the circumstances, the consul who had already been consulted would, no doubt, make known to the immigration officer the purpose of the visit, and there would be no difficulty. I had to be content with that, and I informed the doctor accordingly.
In fact, when the brother arrived, he was detained all night. He was subjected to a long cross-examination. The doctor himself, who attempted to intervene, was subjected to a long cross-examination. The result was frustration and anger and a general mix-up of a kind which one hopes need not normally occur.
Admittedly, the student in that case was not in the sort of category with which the right hon. Gentleman is dealing in these Amendments, but his case raises the same sort of problem. We want to ensure that people should not get into a situation where they are subjected to that kind of treatment. It would not be difficult to provide them with some kind of document which they could show to the immigration officer

§ Mr. Anthony Fell (Yarmouth)
The hon. and learned Gentleman said a moment ago that most of us lose documents anyway, so what is the point of presenting the person with another one?

§ 9.0 p.m.

§ Mr. Peter Archer
I was saying that it would be a pity if every immigrant when abroad were required to carry with him his National Insurance card, driving licence and all the kinds of personal papers which, if we lose, we feel we have gone out of existence. I was proposing that there should be one simple document which somebody going abroad could carry with him. Of course he might lose it and that could apply to any document. The possibility is that there could be a stamp in a person's passport. If the hon. Member for Yarmouth (Mr. Fell) wants to pursue his objection, the person might also lose his passport. We should provide one simple procedure that would not impose too great a burden.

556

§ Sir George Sinclair (Dorking)
Is not a re-entry document the sort of thing that is required? A great deal has been done to eliminate trouble at the port of entry, which has been beneficial both to the immigrant and to the immigration officers. It would be of particular help if we were to provide a simple re-entry certificate with a time period contained in it.

§ Mr. Archer
Not for the first time the hon. Member for Dorking (Sir G. Sinclair) and I are proceeding along the same lines. I would be happy if the Home Secretary could consider some such suggestion.

§ Mr. Maudling
If the immigrant wants to go abroad all he does is take his passport with him and have it with him when he returns. There would be no change in that situation.

§ Mr. Archer
The Home Secretary says that they should take their passports. It does not follow that anybody entitled to a United Kingdom passport who was nevertheless a non-patrial would find that all the questions put to him by the immigration officer would be answered by the production of a passport. Our complaint is that the Bill does not equate citizenship with patriality. What is required is a certificate to say that a non-patrial is entitled to enter and leave the United Kingdom. This is all we are saying. If this suggestion puzzles the Home Secretary, I have no doubt that some of his hon. Friends behind him who have grasped the point will explain it to him.
Amendment No. 35, subject to what I have just said, does not occasion us any difficulty, and I will say no more about it, nor do we have any quarrel with Amendment No. 36, which affects the new proposal in relation to deportation on the recommendation of a court.
Clause 37 seems to be the right hon. Gentleman's response to an invitation made to him by the hon. Member for Ashford (Mr. Deeds) to offer some kind of amnesty to those already in this country. If that is so, then again it is welcome so far as it goes. Amendment No. 38 is in fulfilment of the right hon. Gentleman's undertakings to ensure that, for the purposes of deportation on the recommendation of a court, the period of five years would not be interrupted 557 by a sentence of imprisonment so that the period would have to begin again. Again we would welcome that. Finally, Amendment No. 39 is consequential.
I hope that I have indicated the Opposition's attitude to the object of the Home Secretary's Amendments.
I turn to our Amendment No. 94 which, in effect, is a sub-Amendment to Government Amendment No. 34. The difference between our respective proposals is that the Home Secretary wants non-patrials already residing here to be liable to deportation under the family provision unless they have resided here for five years. That would be the effect of the non-event, of what he has not done.
We say that they should not be liable to be deported under that provision even if they have not resided here for five years. If they are liable to be deported under that provision, they are in a worse position than had the Bill not taken effect. I understand that that is contrary to the right hon. Gentleman's declared intention. If his intention is that those who were residing here should be no worse off, it is not fulfilled while they are liable to deportation under this provision for their first five years of residence.
It has not been made clear to me what dire threat hangs over us which requires this self-afforded dispensation from the Government's declared intention. I ventured to point this out in Committee at col. 965, and the right hon. Gentleman undertook to look into it. So far we have not been told the consequences of what he saw when he looked in. I hoped that he might have mentioned it when introducing the Amendments. We shall certainly listen to anything that he says on the matter, but, as at present advised, we take the view that our Amendment should commend itself not only to my hon. Friends, but to the Government, because its purpose is to give effect to their declared intention.

§ Mr. Powell
I wish to refer to the group of Amendments which is my contribution to the amalgam on the Order Paper, which you, Mr. Deputy Speaker, rather kindly referred to as the pot-pourri. It seeks to increase from five to ten years the time after which those already settled and resident here are not liable to deportation. I could have wished that I had had the 558 opportunity in Committee of putting my point on this and on two succeeding groups of Amendments to my right hon. Friend. I am sorry that I was prevented from doing so by circumstances not in my control.
The Bill alters the position for the future. For all future immigrants, whether aliens or Commonwealth citizens, liability to deportation will be permanent unless and until they become patrial. Unless or until they become patrial, whether an alien or a Commonwealth immigrant has been here, five, ten, 15 or 20 years, he will still be liable to deportation—I should add that I am solely concerned with this type of deportation—following a conviction by a court and upon the recommendation of the court. It is to that class of deportation that I am solely referring. It is therefore thought right as a principle by hon. Members on both sides that there should be no limitation of time upon liability to deportation.
We are passing a completely new dispensation of the immigration law and, without dissent from any quarter, we declare that there ought not to be a limitation of time upon the liability of non-patrials to deportation. It must be taken, therefore, that the House regards as just and proper that, however long a non-patrial settler has been here, if circumstances warrant it he should be liable to be returned to the country of his origin for the good of this country and, in many cases, in his own interests.
I contend that we should take this opportunity to alter the provisions which are carried forward by the Bill relating to persons already settled here at the time when it becomes law. I face, immediately, the objection that to do that would, in some sense, be retrospective, or that it would be in breach of the general principle which my right hon. Friend has maintained throughout—and in the interests of which he has moved the Amendment technically under discussion by the House—namely, not to prejudice the position of persons already here. But I would observe that all legislation on citizenship and immigration, by its very nature, alters existing rights, whether or not they are actually being exercised.
When the five-year deportation rule, if I may so briefly describe it, was written 559 into the 1962 Act, that itself created a liability which did not previously exist. There was no liability to deportation for Commonwealth citizens up to that time. That Act created it at a stroke, and yet it was not thought wrong on that account to do so. Indeed, the 1962 Act, the 1968 Act, and any legislation which alters the law on citizenship, or the law on immigration, necessarily alters the rights of persons which they are enjoying up to the time of the legislation. So I do not think that that objection in principle can be urged against the House looking again at the five-year rule in relation to existing immigrants in this country.
But, more narrowly, can it be said that to look at, and to alter, that rule would prejudice the position of those already here? The argument against prejudicing anyone's position is that one alters what he was taking into account in deciding how to behave, that one changes the conditions on which he was taking his decisions.
Let us apply that proposition to the matter under consideration. If it is true that the potentially delinquent immigrant jealously counts the time—five years—from his first residence in this country, and then, on five years plus one day, says, "Now come on, let us go and beat it up, because at least I cannot be deported" then, indeed, on that assumption we would be changing his position if we were to reconsider the five-year rule. But I cannot seriously think that the House either envisages that that is a factor which is, or ought to be, taken into consideration by those resident in this country, or that that is a condition of their personal decisions which this House ought to be jealous to preserve.
I conclude, therefore, that we are not estopped by any consideration of fairness or reasonableness or, indeed, by the principle laid down by my right hon. Friend, from reconsidering, on this occasion, the five-year rule, and reconsidering it in the light of the fact that for the future there is to be no limitation on time whatsoever, by common and general consent.
Of course, as the years go on the new rule will apply to an increasing proportion of the immigrant population here—alien or Commonwealth—but for the present, and for many years to come, the 560 old rule, the rule being carried forward by the Clause, will be that which will apply to the vast majority of cases which may come within the purview of a decision of the court to recommend, and of the Home Secretary to confirm, deportation.
I believe that many hon. Members whose constituencies know these problems will agree with me that they have been confronted with instances where, flagrantly, but for the five-year rule, such-and-such a person ought, in the interests of all concerned, to have been deported. Certainly, as the years have gone by, I have seen more and more instances in which the five-year rule seemed to me to be an irrational and objectionable limitation. I have publicly said, in the light of this experience, that it was a rule which I believe should be altered and a period which should be extended. In the Amendments which I have put on the Order Paper, I have simply suggested the doubling of the period. That would certainly greatly reduce the degree of the present mischief, but I will not quibble about the period.
Of course, an argument could be made for any particular length of years. But circumstances today are very different from those when the figure five was first chosen in 1961. When that Bill was framed, much the greater part of the then immigrant population fell within the period of the previous five years, and in some years following that, the five-year rule brought within its ambit the large majority of the then immigrant population. It is a term of years which has become increasingly anachronistic as the years have gone by. If anyone were to argue that today a period of 10 years is too short a limitation, if limitation there has to be, I would not be disposed to disagree with him.
But I believe that the time has now come when the five-year rule should either be abolished, as we are abolishing it for the future, or revised by an increase in the period.

§ Mr. Gower
In view of his comments on this five-year rule, does my right hon. Friend find a similar objection to the longstanding rule that an alien who comes here for five years is able to apply, in normal circumstances, to be a naturalised citizen—which is applied not only here 561 but in many other countries? Is there not a relationship between that kind of rule and the rule of five years which came into the earlier legislation?

§ 9.15 p.m.

§ Mr. Powell
There may be, but then that, too, is modified in the new circum stances. As my hon. Friend knows, under this Bill there is a discretion now on the Home Secretary after five years to con sider whether he will or will not accord patriality. Of course my hon. Friend appreciates that, as soon as an immigrant becomes patrial, the liability to deporta tion does not apply to him. Therefore, if one were considering the deportation of someone who had been in this country 9½ years, he would be a person who, during the last 4½ of those 9½ years, had not exercised his right hitherto to be patrial. We are, in other words, considering a person who, by his own decision, had not made this country—

§ Mr. Robert Hughes
rose—

§ Mr. Powell
May I just—

§ Mr. Hughes
It is an important point.

§ Mr. Powell
Yes, but it cannot be so important as to justify the interruption of a single sentence. I will willingly give way to the hon. Member when I have completed my observation, that, if there were a 10-year rule today, it would include five years during which those to whom it applied had deliberately chosen not to become what is now patrial, or citizens of the United Kingdom and Colonies by registration, but to remain either aliens or Commonwealth citizens whose home was elsewhere.

§ Mr. Robert Hughes
The right hon. Gentleman says that such a person deliberately for 4½ years had not exercised his right to apply for patriality or citizenship. He might well have applied but, because of the discretion of the Home Secretary, have been refused such a right.

§ Mr. Powell
The hon. Gentleman is mistaken. That discretion is for the first time introduced by this Measure in the case to which I am referring; namely, of those immigrants who are already here. They have had the automatic right, after five years' continuous residence in this country, to be registered as citizens of the United Kingdom and Colonies, and 562 therefore those to whom one would extend this liability are people who, by their own choice, have decided that this country is not their home. That, I believe, is a further justification for taking this opportunity to review what I have briefly called the five-year rule.
I do not believe that either my right hon. Friend or any other hon. Member can justify circumstances in which immigrants who have been in this country for six, seven or eight years and who are guilty of serious offences for which a court would not hesitate to recommend, and the Home Secretary would not hesitate to confirm, deportation, should be free of that possibility simply because of a figure written into a Measure of 10 years ago.
This is ripe for revision now. I do not know whether the Government, at this stage or subsequently, are prepared to consider doing so. But as time goes on, if it is allowed to elapse, the urgency and necessity of this revision will become ever clearer.

§ Mr. Bidwell
In Committee the right hon. Member for Wolverhampton, South-West (Mr. Powell) tabled a number of Amendments—I believe that he suffered from an abcess which made him retire from the Committee temporarily—and I tabled some which would have reduced the qualifying period to three years instead of 10 years.
I had in mind that as we were moving towards the concept of twinning the intake of alien and Commonwealth workers into this country, it would be right to afford them the facility of citizenship rights after three years and that the five-year period should not apply. If we were progressing in a logical and decent British way, that would be the direction in which we would be heading.
However, we are not heading in that direction by this Measure, and because of the illogicalities both in regard to patriality and the fact that we are not twinning, the situation confronting alien and Commonwealth workers coming here is such that the right hon. Member for Wolverhampton, South-West is able to play ducks and drakes with the Bill, which is what he proceeded to do when he joined the Standing Committee.
The right hon. Gentleman is, of course, trying to put the engines in reverse and 563 to place in jeopardy a number of people who came to this country at our invitation to earn a livelihood and exercise their rights under the 1962 Act, as amended by the 1968 Act. They want their families around them, and it is to be regretted that the Home Secretary, over the appeals system, has taken a step backwards.
One cannot overlook the sinister purposes of the right hon. Member for Wolverhampton, South-West, particularly in his desire to put these people in jeopardy. It is wicked for the right hon. Gentleman to make such proposals, particularly when one has regard to his responsibilities as, in a sense, an employer, as a former Minister of the Crown and as the right hon. Gentleman who, in 1962, when responsible for health matters, urged the recruitment of coloured people from overseas into the British hospital services. That has been exposed to us in more glaring form in remarks made by the Common Market negotiator, the right hon. and learned Member for Hexham (Mr. Rippon), in saying that during the right hon. Gentleman's period as Minister of Health he had said that there was no need to raise British nurses' pay because he could recruit labour in the markets overseas for the hospital services.

§ Mr. Powell
rose—

§ Mr. Bidwell
I will give way in a moment. It therefore makes his situation all that much more despicable in my view.

§ Mr. Powell
Since the hon. Member has sought to place on the record of the House the same falsehood as he sought to place upon the record of the Committee, I will again state that my right hon. and learned Friend, the Member for Hexham admitted that he had no foundation whatsoever for the statement which he attributed to me in that interview.

§ Mr. Bidwell
The right hon. and learned Member for Hexham did no such thing. If the exchanges of letters which the right hon. Gentleman had with his right hon. and learned Friend on this matter were supposed to amount to a retraction on the part of the right hon. and learned Member for Hexham, I invite any Member of the House to look very carefully at the wording used by 564 the right hon. and learned Member for Hexham. In effect, what he was doing in those exchanges was inviting the right hon. Gentleman to prove further the exact words but not withdrawing the substance; the words he used meant that he was not making a retraction.

§ Mr. Powell
The right hon. and learned Member for Hexham attributed words to me and attributed a statement to me. I asked him to refer me to the circumstances or occasion on which I made that statement, and he admitted that he was unable to do so.

§ Mr. Bidwell
What he was admitting in that exchange of correspondence is that he—[HON. MEMBERS: "Withdraw."]—was not recollecting the exact words. I am not withdrawing—I do not believe that the right hon. and learned Member for Hexham would withdraw either—and I make a public statement to that effect. I put it on the record deliberately in the Committee proceedings and deliberately in this debate, because it is about time that in this respect the phoniness of the right hon. Member for Wolverhampton, South-West was completely exposed, in the way in which it has been successfully exposed since he has entered debates in this Parliament, which he did in a very belated way.
Returning to the substance of the Amendments, I welcome the promise made by the Home Secretary in Committee. I will not say that I am highly delighted, because that might upset my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis). On Second Reading, the Home Secretary said that the Bill did not worsen the situation for immigrants in Britain at present. But he subsequently found out that that was not the case. Therefore, I am pleased that he sought to set this right by this series of Amendments. He does not quite succeed, as my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) has pointed out by his further observations, but I know that that is his solemn intention. We can deduce that from the speech he made.
On the question of the span of time, we have customarily looked at people as "belonging", and that is what the argument about the five years is all about. 565 Historically, as the hon. Member for Barry (Mr. Gower) suggested, we have become attached to the concept that when someone from overseas has been here over a five-year period, when he may opt for citizenship, that is a fair amount of time.
My hon. and learned Friend the Member for Rowley Regis and Tipton has voiced the anxieties felt by members of the immigrant community who do not feel able to take advantage of Commonwealth citizenship rights under the British Nationality Act, 1948, and therefore take naturalisation or British citizenship. One reason for my hon. and learned Friend raising this question was conversations I have had with him. I want the Secretary of State to take full cognisance of all the Commonwealth considerations. Half the population of the Commonwealth are Indians—550 million. I am told by immigrant constituents of mine that only a small proportion of them take advantage of the British Nationality Act, 1948. When the right hon. Gentleman understands the reason for that he will better understand the fears of a person who has lived in this country for, say, 20 years and who has, perhaps, built up a business here. I have in mind a factory owner here who is also a property owner in India.
9.30 p.m.
The difficulty about Commonwealth citizens who have the necessary five-year residence qualification taking up citizenship is that the Indian Government, for example, do not recognise dual citizenship. The taking of British nationality by an Indian immigrant affects property interests in India. People who have been in Britain for as long as 10 years are afraid when they leave Britain, because the Bill and the regulations arising from it will impose upon immigration control officers a degree of diligence which will involve interrogation. The Home Secretary should not underestimate this point or the difficulties which will arise for immigration control officers.
People cannot carry a collection of Indian passports. When a passport is renewed at the High Commission office here the old passport must be relinquished. The certificate of departure matching the certificate of entry has a more significant meaning than the Secre 566 tary of State was disposed to think that it might have.

§ Mr. John Biggs-Davison (Chigwell)
The hon. Gentleman has spoken of a reluctance among immigrants in his constituency to assume British citizenship. Should not those who settle here have an undivided allegiance instead of trying to have the best of two countries?

§ Mr. Bidwell
Life is not as simple as that. The hon. Member, who has a fairly wide international experience, would be able to approach these matters with more competence than he customarily does if he understood them better.
Immigrants coming to work here do not know what the country is like, except by hearsay from relatives. They do not always have any firm idea of how long they will stay. I am sure that when relatives of mine emigrated to Australia they could not have had any firm idea of the length of time which would pass before they would feel sufficiently at home there to want to acquire Australian citizenship. There are always divided loyalties; there is always the thought that one might wish to go back, and we have the additional complication of property rights and so on.
But property factors can be of some advantage. I know that the hon. Gentleman is interested in using overseas aid in a most intelligent way. When I was in India I found that as a result of earnings in this country certain things were blossoming in the Punjab, in the Jalandhar city area, which could be highly commended. It seems that certain property rights have been established both in that country and here, by virtue of settlement.
Children of Indian parents who were brought here as babies or were born here are now pure patrials under the Bill. If one asks them whether they are Indian or British, they will sometimes reply that they regard themselves as a bit of both. They look Indian, with their dark skin and dark hair, but they do not always dress as Indians. They speak like Cockneys, and do not like curry. That is the reality of the immigration situation, and the sooner hon. Members like the hon. Member for Chigwell (Mr. Biggs-Davison) and the nation as a whole understand these matters, the more intelligently will they be able to go 567 about their business of having a decent immigration control system and a decent race relations system, free of colour and ethnic discrimination. We are going some way towards that. The more we talk about it, the more we are likely to achieve it.
I have spoken for longer than I intended, but I have been provoked by interruptions, especially from the right hon. Member for Wolverhampton, Southwest. He calls me his sparring partner, and I did not want to let him down this evening.
I hope that the Home Secretary will take seriously into account the difficulty—it may be only transitional, as we are having a new Bill—experienced by many immigrants having popped back to their land of origin to a funeral or wedding. More and more of them are becoming affluent in this country. In my constituency we have a branch of Air India which has facilitated travel to India. It has quite a personable office, which is a credit to the neighbourhood, and in it there is a beautiful girl wearing a sari. There will be more and more of such return trips by many people who have not taken British nationality and who want to come back again. They feel that they are as much British as they are Indian, yet they believe that because of the Bill they are having to suffer a far more thorough interrogation at Heathrow Airport now.

§ Mr. Maudling
The debate has gone a little wide of the Amendments—

§ Mr. Bidwell
I tabled a probing Amendment to get off my chest what I have just got off it. Therefore, I shall not seek to move that Amendment, and shall thus be saving time.

§ Mr. Maudling
I do not know whether it is a question of fair exchange being no robbery, because I have not seen the other Amendment. The Clause deals only with exemption from deportation for certain existing residents. The purpose of my Amendments is solely to change the Clause in two particular regards, in order to carry out the undertaking that I would not change the situation of people already here. That is all that the discussion is about.
The proposal of my right hon. Friend the Member for Wolverhampton, South 568 west (Mr. Powell) is to extend the five-year term to 10 years, though, as he pointed out, 10 was an arbitrary figure and he was not particularly insistent on it. What he sought was a longer period. I am not persuaded that that would be wise. The five-year period is a term used in many ways in this type of legislation, and I do not see the justification for changing it now. People coming in future, as my right hon. Friend pointed out, will obtain exemptions from deportation, which we are talking about, not by the effluxion of time but by registration. In discussing the Amendments, we are talking about those who are already here. I cannot see the justification for using this occasion to extend from five to 10 or any other number the period of years which they have to go through to earn exemption.
It is very important to try to carry out the principle that in the Bill we are not taking action against people already here. I may be slightly out of order in referring to people coming in the future, but perhaps you will be indulgent, Mr. Speaker. As I have said, for them we are not extending the period of years, but are introducing a different system, of registration. To extend the period of years would not be consistent with what we are doing with people coming in future, and certainly not with the undertaking I have given about not doing harm to those already here. For those reasons, I cannot accept my right hon. Friend's Amendment to my Amendments or to the Clause.
I hope that the House will accept that what I am doing in the Amendments is to carry out the undertakings I gave in Committee. The hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) referred to Amendment No. 37, which says that a person ordinarily resident here already shall not, for the purpose of counting his time here, lose any time that he overstays his leave. The reason is simply to bring the provision into line with existing legislation. Section 7(2) of the Commonwealth Immigrants Act, 1962 makes that provision. If I did not make it, I should be worsening the position of people already here.

§ Mr. Peter Archer
I hope that the right hon. Gentleman was clear that I was not complaining about what he was doing.

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§ Mr. Maudling
The hon. and learned Gentleman seemed to think that the purpose of Amendment No. 37 was connected with the suggestion of an amnesty. It is not. But that question might well be considered on Third Reading. I am not sure, but it seems to me that it is not a matter arising on this Amendment.
I do not find very valid the hon. and learned Gntleman's other point on my Amendment which was whether in practice people who go on holiday and so on can come back to this country again without great difficulty. This is a matter of administration, not of law. The Amendments are concerned solely to continue the existing situation.
I confirm that the phrase "ordinarily resident" is interpreted in common sense terms. If a man goes on holiday or makes a short visit home, he does not break his period of ordinary residence. If he went for a year or so, that might be another matter. A holiday does not break the period of ordinary residence, but a longer stay would.
The position about evidence of how long a person has been abroad will be the same after acceptance of the Amendment as it is now and as it has been for several years. Immigrants already here often go on holiday and have to present documents to show, when they come back, how long they have been out of the country. This is a matter of administration, not of law.
I will look at the current administration to see whether there are any difficulties in practice arising about people who have been on holiday and, on return, being unable to prove that they are "ordinarily resident". I will look at the question of administration, but it is nothing to do with the Amendment.

§ Mr. Peter Archer
Under the existing law, it is possible for a person to be away for two years, or up to two years. I have had representations on this matter. We should be clear about what a "short period" is.

§ 9.45 p.m.

§ Mr. Maudling
I will look at that point. It is a question of interpretation rather than of statute.
The point raised by Amendment No. 94 would arise only in a small number 570 of circumstances when the question of family deportation arises. It would arise in the case of the head of family who is liable to deportation—in other words, when he has been here for less than five years. If the members of the family concerned have been here for five years, it would not arise because they would have gained exemption in their own right. Therefore, this point could arise only when both the head of the family and other members of the family had been here for less than five years. Acceptance of the Amendment would mean that the head of the family but not the other members of it would be liable to deportation. That would create a considerable anomaly. I do not think that acceptance of Amendment No. 94 would produce a sensible result. It would arise only in the case of someone who had not earned, by the period that he had been here, exemption from deportation. It would not apply to people exempted in their own right.

§ Mr. Peter Archer
What about the position of someone to be deported under Clause 3(5)(b)? According to the right hon. Gentleman's Amendment, he would not be liable to deportation, even if he had not been here five years.

§ Mr. Maudling
People would be liable to be removed under the "conducive to public good" provision as the Bill stands. But I propose that Commonwealth citizens already here should be in the same situation as they are now—in other words, not liable to be deported on non-conducive grounds.
The Government's Amendments are designed to carry out the undertaking that we shall not detract from the position of people who are already here. I cannot accept the Amendment of my right hon. Friend the Member for Wolverhampton, South-West as I do not think that it would be in keeping with the spirit or general principles of the Bill.

§ Amendment agreed to.

§ Further Amendments made: No. 35, in page 9, line 8, leave out 'been settled' and insert: 'or, if more than five years have elapsed since the end of July, 1971, at all times since the end of that month been ordinarily resident'.

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§ No. 36, in line 12, leave out been settled 'and insert: 'or, if more than five years have elapsed since the end of July, 1971, at all times since the end of that month been ordinarily resident'.

§ Mr. Powell
I beg to move Amendment No. 101, in page 9, line 18, leave out from 'Islands' to end of line 20.
This Amendment and Amendment No. 102—page 9, line 24, leave out paragraph (b)—hang together.
My right hon. Friend the Home Secretary has just explained the effect of subsection (2), namely, that if a person who can claim the five-year rule has been or is during any part of the five years which he would like to count imprisoned or detained for six months or more, the six months is added on to the five years, so that he has to do five years six months. It is illogical to select a minimum period of six months for this purpose.
Earlier today, the House agreed that deportation was often right and justified when the conviction carried a much lesser penalty than imprisonment for six months. There could easily be a case in which a person seeking to claim exemption had been imprisoned not once but two or three times during the five years but in each case for shorter periods than six months. It would be absurd and scandalous that he should still be able to claim a clean sheet during the five-year period for exemption.
I do not feel that this limitation is justified. It would be much more logical that any period during which the person had been imprisoned or detained should be added to the five-year period as that which must have elapsed before the immunity was gained.

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§ Mr. Sharples
The effect of the Amendment would be to withdraw from the Irish or Commonwealth citizen who had been accepted for settlement by the end of July, 1971, the exemption from deportation that he is to obtain under the Bill on completion of five years' residence here free of conditions if he was at any time during the previous five years sentenced to imprisonment or detention.
I do not think my right hon. Friend the Member for Wolverhampton, Southwest (Mr. Powell) will be surprised when I advise the House not to accept the Amendment.

§ Mr. Powell
I accept, and I hope that my hon. Friend will treat me as accepting, the effect of my right hon. Friend's Amendment to the subsection which the House has just made, so that, given that Amendment, the effect of my Amendment would simply be to add to the five-year period which has to be worked shorter periods than six months, if necessary.

§ Mr. Sharples
But my right hon. Friend appreciates, I am sure, that the loss of rights which derive from the six months period is in the existing law.
The effect of the Amendment would be to remove from a Commonwealth or Irish citizen who had received a sentence of less than six months, or had been sentence to be detained for even one day, the exemption from deportation which he already has. It worsens the position of those already here. My right hon. Friend will have heard the debate we had on the last group of Amendments. It is the firm intention of my right hon. Friend the Secretary of State that the position of those already here should not be worsened. The Amendment would worsen the position of those already here.
It may well be said that this lies within the discretion of my right hon. Friend the Secretary of State. None the less, there are people already here who may have suffered a very short period of detention during the previous five years and it would add to their anxieties unnecessarily. It would be wrong to accept the Amendment. I therefore advise the House to reject it.

§ Amendment negatived.

§ Amendment made: No. 39, in page 9, line 19, leave out 'if'.—[Mr. Maudling.]