APPEALS IN RESPECT OF DEPORTATION ORDERS (Hansard, 19 October 1971)

HC Deb 19 October 1971 vol 823 cc613-22 613

§ Lords Amendment: No. 30, in page 16 line 17, at end insert: ; but, in calculating the period of eight weeks limited by section 5(3) above for making a deportation order against a person as belonging to the family of another person, there shall be disregarded any period during which there is pending an appeal against the decision to make it.

§ Mr. Carlisle
I beg to move, That this House doth agree with the Lords in the said Amendment.
It might be for the convenience of the House if we consider with it the following Lords Amendments:
No. 31, in page 16, line 18, leave out from beginning to "a" in line 22.
No. 32, in page 16, line 28, leave out subsection (4).
No. 33, in page 17, line 5, at end insert: (7) On an appeal against a decision to make a deportation order against a person as belonging to the family of another person, or an appeal against a refusal to revoke a deportation order so made, the appellant shall not be allowed, for the purpose of showing that he does not or did not belong to another person's family, to dispute any statement made with a view to obtaining leave for the appellant to enter or remain in the United Kingdom (including any statement made to obtain an entry clearance) unless the appellant shows that the statement was not so made by him or by any person acting with his authority and that, when he took the benefit of the leave, he did not know any such statement had been made to obtain it or, if he did know, was under the age of eighteen. (8) An appeal under this section shall be to the Appeal Tribunal in the first instance, instead of to an adjudicator, if—

(a) it is an appeal against a decision to make a deportation order and the ground of the decision was that the deportation of the appellant is conducive to the public good; or

(b) it is an appeal against a decision to make a deportation order against a person as belonging to the family of another person, or an appeal against a refusal to revoke a deportation order so made; or
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(c) there is pending a related appeal to which paragraph (b) above applies.
(9) Where an appeal to an adjudicator is pending under this section, and before the adjudicator has begun to hear it a related appeal is brought, the appeal to the adjudicator shall be dealt with instead by the Appeal Tribunal and be treated as an appeal duly made to the Tribunal in the first instance. (10) In relation to an appeal under this section in respect of a deportation order against any person (whether an appeal against a decision to make or against a refusal to revoke the order), any other appeal under this section is a "related appeal" if it is an appeal in respect of a deportation order against another person as belonging to the family of the first-mentioned person. No. 34, in Clause 17, page 18, line 42, leave out subsection (6).
No. 35, in Clause 19, page 20, line 16, leave out "(3)".
No. 36, in Clause 21, page 20, line 44, leave out "(3)".
This group of Amendments was brought forward by the Government in Committee in another place in fulfilment of an undertaking given by my right hon. Friend the Home Secretary in this House on Report. Their effect, in simple terms, is to give a full right of appeal on merits to a person ordered to be deported as being a member of the family of a person who has been ordered to be deported.
Clause 3(5)(c) introduces the power to order the deportation of members of families. Clause 15(4) provided that in such cases there was no right of appeal against the deportation order by a member of the family except on the ground that there was in law no power to make the order, or to make the order against the principal person who had been deported. This was because it was felt that, since in the great majority of cases wives and children will have been admitted to the United Kingdom not in consequence of any claim of their own but as dependants of a man ordered to be deported, they would be unlikely to have any claim of right to remain if he was to be excluded, other than a claim based on compassionate considerations.
It was felt that if the only ground for not deporting the members of the family was likely to relate to compassionate circumstances it was best left to the Secretary of State to assess those rather than that the decisions should be left to individual adjudicators, whose decisions 615 might well be extremely inconsistent with each other, and who would not see the volume of such cases as would be available to the Home Secretary. However, my right hon. Friend, in view of the opinions expressed in this House, undertook to look at the matter, and he has decided to introduce full rights of appeal on merits. So as to avoid the danger of inconsistency, appeals of this nature will lie direct to the appeal tribunal and not to the individual adjudicator.
Accordingly, the Amendments provide, first, that where the head of the family is to be deported following a recommendation by a court of law there will be an independent right of appeal to the tribunal if it is proposed to deport members of the family, and, secondly, that where the deportation of the head of the family for breach of conditions or overstaying is proposed, the anneal will go to the tribunal instead of the adjudicator if it is proposed to deport members of his family also and any of them have appealed against the decision, and then the two appeals can be heard together.
Where the deportation is on conducive grounds, the appeal of the principal deportee in any event lies direct to the tribunal, and therefore any appeal by members of the family can be taken at the same time, and any appeal against refusal to revoke a deportation order by a member of the family will also lie direct to the tribunal.
My right hon. Friend also undertook that any member of a family will be given the opportunity to avoid what might be felt to be the stigma of deportation by leaving under arrangements for supervised departure. It would be out of order for me to go into any argument on the merits of supervised departure now, but I would point out that the first Amendment provides that in calculating the period of eight weeks, with regard to the time elapsing before the Home Secretary has to make the order, there shall be disregarded any period during which there is pending an appeal against the decision to make the order". That deals with the unlikely case where the principal deportee has left the United Kingdom before the determination of an appeal by a member of his family against deportation, and ensures that in such a case there is a full period of eight weeks 616 after that determination for the making of the order if the member of the family then refuses to leave under supervised departure.
The fourth Amendment reproduces the provision which originally appeared as part of Clause 15(4). It deals with an appeal against a decision to make a deportation order against a person as belonging to the family of another person, or on an appeal against a refusal to revoke such a deportation order, when the appellant shall not be allowed, for the purpose of showing that he does not or did not belong to another person's family, to dispute any statement made with a view to obtaining leave for the appellant to enter or remain in the United Kingdom … The provision was amended in another place to allow an appellant to dispute such a statement if he shows that the statement was not so made by him … with a view to obtaining leave to enter or remain in the United Kingdom or by any person acting with his authority and that when he obtained leave to enter or remain he was aged 18 or over and did not know that any such statement had been made to obtain leave.
The provisions of the Bill are certainly fairly complicated for one coming fresh to it. Perhaps I can summarise what I have just said with regard to the right to dispute statements made on another occasion by assuring the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) that the provision goes no wider than the common law doctrine of estoppel, and I am sure is for that reason to be welcomed by him and anyone who has considered the details of the Bill.
The advice with regard to deportation is in the draft Rules. The Rules set out in paragraphs 46 to 51 general guidance for the Immigration Appeal Tribunal when dealing with family deportation cases.
I hope that I have made what is a fairly complicated provision reasonably clear.

§ Mr. Peter Archer
On behalf of my right hon. and hon. Friends I congratulate the hon. and learned Gentleman on the rapidity with which he has mastered the very complicated provisions of the Bill.

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§ Mr. Clinton Davis
He had to. The others dared not intervene, having regard to what they have said in the past.

§ Mr. Archer
I am not privy to the councils of the Government Front Bench, so I can neither confirm nor deny my hon. Friend's speculation.
However, I sincerely congratulate the hon. and learned Gentleman. If we had had the benefit of the clarity of his mind at an earlier stage we might have been spared a great deal of the discussion which went to securing these Amendments. I say that without any disrespect to the right hon. and hon. Gentlemen who dealt with the Bill.
The provisions about holding statements against immigrants now do not go further than the common law doctrine of estoppel. Our complaint all the way through was that they went further than the common law doctrine of estoppel and very much further than the dictates of natural justice. It has taken the whole of the previous proceedings on the Bill to reduce this to the limits of the common law doctrine of estoppel, with which none of us quarrels.
As to the appeals Rules point, we are grateful to the Home Secretary for having considered the matter and having made the concessions. I hope that the Home Secretary will not think it ungracious if we wonder how these provisions came to be absent from the Bill in the first instance. One would have thought that elementary justice required that there should be some form of appeal. As my noble and learned Friend, Lord Gardiner, said in another place, this is perhaps one more stage in the battle to subject Home Office officials to an appeal, in accordance with the general principle that people who are entrusted with great administrative powers over the lives of others should hold them subject to some form of appeal. Even our judges are subjected to appeal.
It would have been very difficult to justify for any great length of time and over many more stages of the Bill the absence of an appeal in situations such as this. Perhaps we will be forgiven if we are not wholly satisfied even now. As my noble Friend, Baroness White, said in another place, the procedure for appeal can be completely fair and satisfactory, but 618 that does not help greatly unless we know on what grounds we can appeal.
Now, again somewhat belatedly, the Home Secretary has published the amended Immigration Bill Rules relating to rights of appeal. I am not sure how far we should be within the rules of order in debating them. In so far as they relate to the Amendment, I take the liberty of saying in passing that, although we are grateful to the Home Secretary for publishing them, he has not entirely resolved our puzzlement. In my case he has rather exacerbated it.
Paragraph 47 of the Rules states: In most cases wives and children will have been admitted to the United Kingdom as dependants of the principal deportee. In these circumstances they have no claim to remain if he is to be expelled". One would have thought that it followed from that that, where they are not dependants, there would be no need to expel them if the head of the family had to be expelled.
Paragraph 48 states: The ability of the wife to maintain herself and any children in the United Kingdom, or to be maintained by relatives or friends without charge to public funds, is not in itself a sufficient ground or allowing her to remain here". One would have thought that it followed from paragraph 47 that it was. All is not lost to her if she proves that she can maintain herself and her family. That ability will be a relevant factor if other circumstances point to that conclusion.
6.45 p.m.
I as a lawyer would have been happier—the hon. and learned Gentleman will appreciate this—if the burden of proof had been the other way. It is being said that, if all the circumstances point to her being allowed to remain, then perhaps if there is any remaining doubt it will push it over the border that she can maintain herself and her family, and therefore nothing will be lost by allowing her to remain here. What is now said is that if she can prove affirmatively that everything points in that direction that will push it over. If she can maintain herself and her family, unless someone can point to some good reason why she should not be allowed to remain I should have thought that we should be generous and hospitable.
I must not pursue a further incursion into these draft Rules. In due course 619 possibly we shall be allowed to discuss them.
We on this side accept the other matters mentioned by the hon. and learned Gentleman. We accept them, indeed, with all the gratitude that we can muster in view of the time and effort that it has taken to extract them. If I may say without irreverence, I have never understood why there should be such unmitigated joy in Heaven over late repentance. One would expect it to be mitigated by some irritation. However, we accept the Amendment.

§ Mr. Bidwell
We welcome any retreats by the Government which are due to the painstaking discussions which we on this side initiated in Standing Committee. The considerable national anxieties to which expression was given in the other place have played their part in bringing about this change.
I do not like the conception of family deportation. I am struggling to remain within the bounds of order but I remind the Secretary of State that with the patriality concept he had no right to deport children who were born in Britain and who are therefore patrials.
In those circumstances, it was elementary that there should be this machinery of appeal as applying to members of the family other than the breadwinner who might be the subject of deportation. There is the question of the scattering of families. There is the particularly vexed question of the West Indian mother all of whose children may not be living with her, some of them having gone into the homes of relatives. The question of family deportation would not then be publicly countenanced.
Therefore, I am very pleased at the change. I have to be careful in uttering words like that in the presence of my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis), because he seems to take the view that we should not thank the Government for very much. We should bend over backwards to thank them if they withdrew the Bill.
We cannot look a gift horse in the mouth. I have confidence in the general public view of the circumstances in which deportation can and cannot take place. I have confidence in the extent to which the public would accept the deportation 620 of a whole family. That would be a rare event.
It would have been better if the Government had retreated two steps backwards instead of the little step backwards which they have taken on this question. They should have accepted the full import of what my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) has said. The reverse case should have applied, with the State accepting the onus of laying a case against a wife and children. At what age does a person cease to be a child? In many instances, teenage children would be married, and that is only one example of the difficulties liable to arise. In such circumstances, the proposal would never get off the ground, provided that it were publicly ventilated. I welcome the changes because they will ensure that public ventilation.

§ Mr. Clinton Davis
I join my hon. Friend the Member for Southall (Mr. Bidwell) in saying that mitigating the worst offences in the Government's provisions about appeals does not altogether avoid the ugly concept of family deportation, or whatever other euphemism may be provided for it—supervised departure, or whatever it may be. I look forward to the supervised departure of the whole Government, but that is not relevant now.
The criteria to be available to the adjudicator on an appeal are not sufficiently spelled out in the rules. I have not had sufficient opportunity to consider that, but perhaps the Under-Secretary will comment. No doubt we shall later be able to consider the criteria. It will be necessary to see how the system works in practice before reaching any specific conclusion.
In passing, I must observe that appeals were fought root and branch by the Government earlier in our discussions. Whenever the adjudicator was mentioned, the Home Secretary kept on with his plaintive song that the matter was not justiciable. How many times we heard that phrase! Now it is justiciable, and this is another concession to the Opposition's point of view. It is a pity that the Government have not been a little more charitable to the views that we expressed so often in Committee. We spent many hours on this matter and at last we seem to have got some degree of common sense into the Government's 621 head about this and other matters, perhaps because of the pressure of noble Lords.
The doctrine of estoppel seems now to have been brought into conformity with the general rules of the common law in this regard, but I should like an assurance that that is so, for it has been a little difficult to digest all this information in this very hurried manner.
The Joint Council for the Welfare of Immigrants has asked me to pose a question to the Under-Secretary. I apologise for not having given him notice, but there was no opportunity to do so. By far the largest group involved in estoppel are elderly men admitted as dependants of children already here and who have either falsified their age or stated that they had no wives or children still dependant on them in their country of origin. Most of these people were admitted before entry certificates became compulsory in May, 1969. Difficulties arise when they subsequently send for their dependants.
In future, will dependants of those who came in as the result of false statements made before the Bill automatically be refused, or will they be covered by the Government's statement that those already here on a permanent basis will not be affected by the new rules? If the Under-Secretary is not able to deal with that now I will readily understand and will write to him about it.
Whatever the situation on all these matters, one must concede that the Government have seen some degree of light. The murky nature of family deportation still remains, and I do not think that the Government can emerge with anything but shame for having embraced this concept, which sullies further their already rather sullied reputation.

§ Mr. Carlisle
By leave of the House, I cannot at this point answer the question posed by the hon. Member for Hackney, Central (Mr. Clinton Davis), but if he cares to write to my noble Friend who is responsible for these matters I am sure that my noble Friend will be able to answer it. I cannot let his last comment go unchallenged. As he knows, the idea of deportation of other members of a family is certainly not unique to this country, as he tended to suggest it was.
622 However, I rose to answer the comments of the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer), the hon. Member for Southall (Mr. Bidwell) and the opening remarks of the hon. Member for Hackney, Central. The advice or guidance given to the tribunal in these matters is laid down in the draft Rules. The Rules which the House has seen are only draft Rules. I assure the hon. and learned Gentleman that the Government will carefully study his detailed remarks about the draft Rules and we will take into account what he has said before the final form is drawn up. In due course that final form will be presented to the House, when it will be subject to the negative procedure.

§ Question put and agreed to.

§ Subsequent Lords Amendments agreed to.