Immigration Bill

HL Deb 12 April 1988 vol 495 cc979-1042

3.1 p.m.

Report received.

Earl Ferrers moved Amendment No. 1: After Clause 3, insert the following new clause:

("Members of diplomatic missions.

. At the beginning of subsection (3) of section 8 of the principal Act (exemption from immigration control for members of diplomatic missions etc) there shall be inserted the words "Subject to subsection (3A) below," and after that subsection there shall be inserted— (3A) In the case of a member of a mission other than a diplomatic agent (within the meaning of the said Act of 1964) subsection (3) above shall apply only if he enters or has entered the United Kingdom—

1. (a) as a member of that mission; or
2. (b) in order to take up a post as such a member which was offered to him before his arrival;

and references in that subsection to a member of a mission shall be construed accordingly." ").

The noble Earl said: My Lords, it may be for the convenience of your Lordships if I speak to Amendments Nos. 1 and 18 together.

The amendment to Section 8(3) of the 1971 Act is being proposed to address an area of actual and potential abuse. I apologise for introducing this amendment at a fairly late stage in the Bill, but we are anxious to take this opportunity to deal with a problem.

The problem arises from the fact that at present Section 8(3) of the Immigration Act of 1971 confers exemption from immigration control on all members of a mission within the meaning of the Diplomatic Privileges Act 1964, together with members of their family forming part of the household. This extends to all locally-engaged staff; that is to say, someone who has come to this country for another purpose and has then been taken into employment by a mission. But locally-engaged staff are not generally accorded any other form of diplomatic immunity or privilege.

Immunities and privileges are not granted to locally-engaged staff if they are permanently resident in the United Kingdom. In effect, the Foreign and Commonwealth Office considers all locally-engaged staff to be permanently resident unless it receives formal notification from the mission to confirm that an individual is only temporarily resident and that he intends to depart when his employment in the United Kingdom finishes. In practice, at present all locally-engaged staff are exempt from immigration control, while virtually all enjoy no other form of immunity or privilege.

This exemption is exploited by people who seek to prolong their stay in this country when they would not otherwise qualify to do so. There is scope for abuse in two ways. First, missions may employ people who are already in the United Kingdom as illegal entrants, or on temporary admission, or as overstayers. This employment places the person concerned beyond immigration control. He cannot be deported; nor can he be made subject to the immigration legislation. In effect, such a person can stay in the United Kingdom for so long as he remains employed by the mission.

Secondly, missions may be used as safe havens by prospective overstayers. An immigrant awaiting the outcome of an appeal against a refusal to vary his stay can join the staff of a mission and remain there even after his appeal has failed. He cannot then be deported. The control can also be frustrated by those who would otherwise be in breach of no-employment conditions, that is, people who are admitted as visitors or students, for example.

We are not concerned here with those who are appointed as full diplomatic agents. The problem relates to those who take up administrative and technical posts or service staff such as chauffeurs or caretakers. These are the positions that are the subject of the proposed amendment.

The effect of the new clause will be that locally-engaged staff in these non-diplomatic posts and their families will no longer be exempt from immigration control. Missions will continue to be able to employ locally-engaged staff in these categories provided that their immigration status enables them to take employment. It may also be possible for others to be employed in these categories, but only if the mission notifies the Foreign and Commonwealth Office of their appointment in accordance with the Vienna Convention on Diplomatic Relations. The Foreign and Commonwealth Office will then need to be satisfied that the individual is in bona fide employment and is entitled to immunities and privileges.

The proposed amendment puts into practice the advice which was given to missions by the Vice-Marshall of the Diplomatic Corps that they should not employ people who would not otherwise be permitted to work in the United Kingdom.

The proposed amendment would not apply retrospectively. Those already employed by missions would retain their exemption from immigration control while they remain in that capacity. These arrangements will be fully explained to missions before the amendment comes into effect. The proposed consequential amendment to Clause 11 will provide for the amendment to Section 8(3) to be brought into effect by means of a commencement order.

This is not an enormous problem at present. However, the fact remains that this loophole has been exploited in the past, and so long as the potential for abuse remains, it is likely to be exploited in the future. The Government have therefore taken this opportunity to improve the effectiveness of our immigration control arrangements in this area by means of this amendment. I commend it to the House. I beg to move.

Lord Elwyn-Jones

My Lords, the fact that this proposal arises from advice given to missions generally by the Vice-Marshall of the Diplomatic Corps gives it great strength. Are we unique in acting upon that advice, or will this be generally applied? That there should be a limit to the possibilities of abuse by those purporting and claiming to be members of diplomatic missions is clearly a wise and necessary step. To what extent shall we be unique in this regard, or will there be reciprocal arrangements made in and for other diplomatic missions in other countries? Will the rules also apply to our own diplomatic missions abroad?

Lord Harris of Greenwich

My Lords, as I understand it, the noble Earl indicated a few moments ago that this is not a major problem. His precise words were that it is not an enormous problem. How many cases have there been? It would be very helpful if he could answer that question.

Earl Ferrers

My Lords, it is difficult to answer the question of the noble Lord, Lord Harris, because one does not know all those cases where people have taken advantage of the system. I could not therefore give the noble Lord an accurate answer. However, I can tell him that there have been quite a number of cases.

In reply to the noble and learned Lord, I am grateful to him for taking that attitude. When the Vice-Marshall of the Diplomatic Corps has given this advice it is obviously of considerable importance. The noble and learned Lord asked whether we are unique in this aspect. So far as I know, we are unique in this country in having a Vice-Marshall of the Diplomatic Corps. I am not certain what happens in other countries. Perhaps they have their equivalent. I cannot say what the effect will be in other countries. Nor can I tell the noble and learned Lord whether there will be any reciprocal action. All we are saying is that people who take employment in missions should be those who are entitled to be employed and that those who are abusing this entitlement, and thereby escaping immigration control, should not be entitled so to continue.

Lord Mishcon

My Lords, I hope that the noble Earl will forgive me, but I do not think he quite caught the point that as I understood it my noble and learned friend was advancing. This was the point, I believe: is the noble Earl saying that this is a common protection in regard to immigration where members of the mission are concerned? In other words, does it apply in other countries? Are we likely to be affected by this clause in regard to membership of our missions abroad? I believe that was the point of the question. I am advancing it now because of our rules at Report stage that only one speech is permitted.

Earl Ferrers

My Lords, unfortunately I can speak only with the leave of the House. I do not know whether the House wishes to give me that leave.

Noble Lords

Granted!

Earl Ferrers

I took the noble and learned Lord's point quite well, even though it was re-emphasised by the noble Lord, Lord Mishcon. What I cannot tell him is what effect this will have on other countries. Other countries have their own immigration rules and we have to abide by them. Presumably they are different from our immigration rules.

We are merely seeking to ensure that people do not abuse our rules. I hope the noble Lord will accept that. While he was being good enough to explain the point, which I understood in the first place, I have been able to find out that in 1986, among those who took up employment which entitled them to exemption from immigration control, there were—in answer to the specific question of the noble Lord, Lord Harris—119 overstayers or illegal entrants and 286 were subject to non-employment conditions. The great majority of these were employed as members of missions.

On Question, amendment agreed to.

Lord McNair moved Amendment No. 2: After Clause 3, insert the following new clause:

("Appeal against return of asylum applicant to country where he fears persecution.

.The following subsection shall be inserted after section 13(3) of the principal Act— ( ) The limitation of subsection (3) above on the exercise of the right of appeal against refusal of entry shall not apply in any case in which a person is to be removed to a country where he claims to have a well-founded fear of persecution on grounds of race, religion, nationality, membership of a social group or political opinion." ").

The noble Lord said: My Lords, I must admit straight away that I am in deep water on this. It has a marked similarity to an amendment which the noble and learned Lord, Lord Elwyn-Jones, moved in Committee as Amendment No. 10 and which reappears today on the Marshalled List. At Committee stage the noble Earl, Lord Ferrers, gave a by no means totally hostile response to the amendment. In fact at the time I thought he was downright friendly. He has since been kind enough to send me a copy of a letter which he sent to the noble and learned Lord. I hope to hear later what he thought of the letter he received and of the copy of the order which it contained.

However, this amendment differs from that one in that it refers to a different section of the principal Act. The other amendment referred to Section 15, which deals with repeals in respect of deportation orders, whereas the amendment I am moving now refers to Section 13 of that Act, which deals with appeals against exclusion from the UK.

To a non-lawyer the distinction is a trifle technical, but presumably if someone is excluded from the United Kingdom he is likely to find himself subject to a deportation order unless he learns of his exclusion before he has set out on his journey to this country. The position is further complicated by the fact that my amendment refers to Section 13(3) of the principal Act and this is to be repealed or altered by Clause 3(2) of the Bill. Hence my confusion and my inability to explain my amendment with the clarity I should like and for the lack of which I apologise.

However, if the principle is conceded that we cannot, must not and will not deport anybody to a country in which he has a well-founded fear of persecution on those well-known convention grounds—which I need not repeat—then surely both Sections 13 and 15 of the principal Act should be amended in such a way as to reflect that principle. I beg to move.

3.15 p.m.

Lord Mishcon

My Lords, I can readily understand why the noble Lord finds that this might be confusing to the House. I am wondering whether some sensible arrangement cannot be made which will commend itself to him and to the House. It seems to be foolish to have a debate on these two clauses separately. Although I believe that originally it was thought sensible to have Amendments Nos. 2 and 8 grouped together, I wonder whether the House and the noble Lord, Lord McNair, will accept that it would be desirable to have Amendment No. 5 also spoken to in regard to this matter. Precisely the same principles apply.

I hope that I shall obtain the leave of the House later to speak for a second time on this group of amendments since my only reason for rising is to try to save the House in a procedural sense from wasted time in dealing with another amendment which covers the same principle.

Lord Renton

My Lords, I am sure that noble Lords will agree with the noble Lord, Lord Mishcon, in that we should consider these various alternatives together not only to save time but because they are such closely linked matters.

It may surprise some noble Lords to be reminded that I am in favour of our doing something in the Bill about the way in which asylum cases are handled. Indeed this was the only point at Committee stage on which I agreed with noble Lords opposite. I have not changed my mind on that, although I have an open mind still as to the best method of dealing with it. Fortunately in our country we have a very long and admirable tradition of granting asylum in genuine cases. It is a jurisdiction—an exercise of the prerogative on behalf of the Crown, I believe, originally—which has always been exercised by the Home Secretary, generally in person. These cases are not very numerous compared with other immigration cases. My recollection is that they have nearly always gone to the Home Secretary for him to consider himself.

Owing to the strange and disturbed world in which we live, the number of applications for asylum has greatly increased in recent years. The difficulty of Home Secretaries in dealing with them has also increased. There are now so many cases in which people may merely have been political dissidents or wrongdoers in some way of another as well in their own countries and they think that the solution to their personal problem is to come to this great, free country of ours to claim the right of asylum in the hope that it will be granted.

I believe that it is right while we are legislating on immigration that Parliament should have some idea of the way in which the Home Secretary will in future exercise his discretion, especially in dealing with those awkward borderline cases. At the same time Parliament should give a degree of moral support to the Home Secretary on occasions when he must refuse cases which do not appear to be genuine. However, an answer to that point is contained in the phrase, "well-founded fear". That phrase appears in Amendment No. 2 and again in Amendment No. 5. We must understand whether that expression is intended to apply an objective test (for which I would hope) or whether the movers of the amendments consider that it should be a subjective test (with which I would not agree).

It is quite clear that Amendments Nos. 2 and 5 are alternative ways of doing the same thing. However, Amendments Nos. 3 and 8 appear to be alternative ways of doing different things. That is not a good way of puting it; "different ways of doing different things" is a better phrase. As regards Amendment No. 3, I see no harm in a code of practice, although I prefer to see issues stated in principle in an Act of Parliament, so long as one does not enter into too much detail. As regards Amendment No. 8, I would be opposed to that suggestion. Bearing in mind the history of this matter, in exercising a discretion—originally a prerogative discretion—we should not be establishing an independent review board which would take away responsibility from the Secretary of State, albeit by means of an appeal. I hope that my noble friend will not accept Amendment No. 8 although I have an open mind as regards the other amendments.

Lord Elwyn-Jones

My Lords, in considering these amendments we come upon a sombre feature of contemporary civilisation, if that is not too pompous a way of putting it. It is the extent of the denial of human rights and of persecution which exist in different parts of the world. When one looks at the business of the Human Rights Committee of the United Nations one sees the immense variety of issues with which it is called upon to deal: for example, deportation and depatriation on a massive scale; torture; imprisonment without trial; and a whole range of denial of human rights which is now a feature of the contemporary world. There are now probably as many if not more people seeking refuge from persecution than there have been at any time in our lives. We in this country can claim a reasonable record of the regard for our duty to refugees from countries in which they were liable to persecution.

In dealing with this matter, we think it right to set out clearly the rights of refugees and to ensure that those rights and possibilities for having their cases considered are embodied in the law and not in mere orders. Perhaps I may put the matter in that way, but not without paying due regard to the efforts made by the noble Earl in meeting the point in the draft order he has set. It has the limitation of being an order and not something embodied in the Act. It is therefore more capable of amendment, cancellation or revocation than would be the case if it was desired to change a fundamental statement in regard to this field of human rights, such as would be embodied if the language proposed in Amendment No. 5 was included in the Bill. It is stated quite firmly as limiting the restriction of the right of appeal against deportation in cases of breach of limited leave, as dealt with in Clause 4. Added to the words: except on the grounds that on the facts of his case there is in law no power to make the deportation order for the reasons stated in the notice of the decision are the words in Amendment No. 5 which read: or on the ground that he has a well-founded fear of persecution in the country to which he is to be deported on grounds of race, religion, nationality, membership of a social group or political opinion.". As the noble Lord, Lord McNair, has indicated, that reflects what is now well established in international conventions. Indeed, it reflects the wording of the 1951 United Nations convention on the status of refugees and the protocol to that convention. This country is a signatory to that convention which prohibits the removal of any person to a country or territory where he has a well-founded fear of persecution. That is a well-established condition.

Although we appreciate the fact that the order, to which the noble Earl will refer when the opportunity arises, makes some reference to the inclusion of that language, it is nevertheless an order the making of which is within the entire authority of the Secretary of State. One of the remarkable features of the Bill is the arbitrary power that it gives to the Secretary of State. Clause 4 restricts the right of appeal against deportation in cases of breach of limited leave. Subsection (2) reads: Subsection (1) above applies to any person who was last given leave to enter the United Kingdom less than seven years before the date of the decision in question but the Secretary of State may by order exempt any such persons from that subsection in such circumstances and to such extent as may be specified in the order.". I do not believe that it is an appealable order. Its terms are not capable of amendment, save under the terms of the provision in the clause which states that: The power to make an order … shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament". The word used is "annulment" and not "amendment".

Therefore, while we greatly appreciate the thought that has been given to the order and to this matter, we believe that at this of all times, when crazed governments are creating appalling problems for their citizens, the rights and possibilities for civilised countries to deal properly with refugees in the international scene has now become a vital aspect of the humanity of societies and of governments. With great respect, I invite the noble Earl, Lord Ferrers, to give thought to this matter once again. His sympathy for it and his attitude towards it have been shown, but I beg him to make the decisive leap from a mere order to embodying this principle in the Bill and subsequently in the Act of Parliament.

3.30 p.m.

Lord Bonham-Carter

My Lords, I wish to make an apology to your Lordships' House. I regret to say that I have an engagement at 5 o'clock and I must leave at 4.30. Therefore, I shall be away for an hour or two but I hope to return afterwards.

Having said that, I have great pleasure in supporting the amendment moved by my noble friend Lord McNair and in following on the words of the noble and learned Lord, Lord Elwyn-Jones. The amendments in question, severally, joined together or themselves amended, return to the important question which I believe lies at the heart of this Bill; namely, the right of appeal. It is an involvement of the law as opposed to administrative law in the execution of our immigration policies.

I am much heartened that the noble Lord, Lord Renton, sees force in principle in the amendments proposed. I add that, although the numbers involved, to which he has referred, have markedly increased since 1981, in the last year they have somewhat diminished. Of course the number of refugees goes up and down according to events outside this country and according to the acceptance or rejection of regimes in other countries which are well beyond our control. Therefore, I do not attach much significance to those rises and falls over the years.

Lord Renton

My Lords, when the noble Lord says that numbers have increased, is he saying that the number of those who have been granted asylum has increased or the number of those applying for it, including those applications which were refused?

Lord Bonham-Carter

My Lords, I take my evidence from Social Trends, which shows that the numbers applying between 1979 and 1986 have increased and in conjunction with that that the numbers granted asylum increased but have now decreased to lower than the number for 1979, the number of those granted exceptional leave to remain having increased to higher than the number in 1979. I can supply the noble Lord with the figures if he so wishes.

Therefore, the centre of this whole argument is the right of appeal. I do not believe that we are requiring very much of the noble Earl, Lord Ferrers, in asking him to consider seriously the proposal made by the noble and learned Lord, Lord Elwyn-Jones, whereby some redress would be provided for administrative procedures when they go wrong.

I add that almost all organisations connected with refugees have advocated a right of appeal and that that right of appeal is based on the recommendation of the Wilson Report of 1970, a most remarkable and important document. Paragraph 84 of that report, Cmnd. No. 3387, states: The other main argument in favour of an appeal system rests on a basic principle. Its advocates contend that, however well-administered the present control may be, it is fundamentally wrong and inconsistent with the rule of law that power to take decisions affecting a man's whole future should be vested in officers of the Executive from whose finding there is no appeal. In our opinion, these critics have reached the heart of the matter". That is a very considered and important conclusion from a considerable lawyer. I believe that the Government would do well to take it seriously and I hope that the noble Earl will find it persuasive.

I said that almost all organisations interested in refugees have recommended a right of appeal. The Minister of State will remember that the 1984 Select Committee on Race Relations in another place recommended that there should be a right of appeal and that in 1985 the Government rejected the recommendation but on grounds that are of some interest today. The grounds on which it was rejected were the existence of the judicial review, that representations by Members of Parliament could cause a stop to deportation and that there was referral to UKIAS. Since then the referral procedure has been modified: representation by MPs no longer provides a stop, and judicial review, as the noble Earl will agree, has its limitations and is not a substitute for an appeal on merits. As the noble and learned Lord, Lord Elwyn-Jones, said, if we abandon this and do not accept the amendment we may be in breach of Article 13 of the European Convention on Human Rights.

In Committee I referred to this country's proud record in the 19th century as a refuge and place of asylum to which people from all over Europe came when they were victims of persecution. Our record in the 1930s in respect of the receptionof Jewish refugees from Germany was not as glorious. It was better than some but could have been better still. However, I know that that record could have been worse. I dread to think what would have happened to many of those refugees who found a home here in the 1930s if this legislation unamended, had been on the statute book then.

All that this legislation hopes to do is to ensure refugees a right of appeal, that their right of appeal is protected by statute and that they are not simply victims of executive administration. I hope that the noble Earl will listen to the plea from this side of the House and to what the noble Lord, Lord Renton, has said.

Lord Mishcon

My Lords, mercy and the guardianship of our traditional history do not constitute a monopoly for any part of your Lordships' House. This is one of those series of amendments on the Bill when I believe that in every section of the House there is what the noble Lord, Lord Renton, described as an open mind but at the same time a receptive mind as to how best we deal in this era of all eras with our participation in the relief of the problems of genuine refugees.

We are considering three amendments against the background of the Minister's generous statement in Committee when we were considering somewhat similar amendments. I know that the noble Earl will not mind—indeed he may appreciate it—if I quote what he said in Committee on 21st March: As has been said from all sides of the Committee it refers"— and he is talking about the amendment— to the very basic position of people who are seeking asylum. It is right to remember that we are discussing Clause 4, which refers to the restricted right of appeal against deportation". The noble Earl then quoted Clause 4(2) of the Bill, and continued: We believe that it is quite right to take account of those who are concerned about asylum. We recognise that asylum applications give rise to very special considerations and in this Bill we have made provision to ensure that in certain circumstances those who have been in this country for fewer than seven years are not denied a right of appeal—because it is with that that we are concerned—which is able to take account of asylum questions. I do not believe that there is anything between us on this issue because it is the Government's intention to make that point clear by means of an order".—[Official Report, 21/3/88; col. 67.] What we are dealing with at Report stage is a decision by this House, which I hope is united in all its sections, on the best way of dealing with the issue of those who come to our shores and claim the right of asylum. I am sure that the Minister will join in endeavouring to obtain the best answer to this problem. Following upon the undertaking which he gave to try to see whether we could look at any order that might deal with this problem before the Bill left this House, the Minister courteously sent to certain noble Lords a draft of that order. I should like the noble Earl to listen to the reasons why, in spite of that generosity in sending us a draft order, we beg him to consider that that is not the correct answer to the problem.

The first point I make is one that has already been made. Orders are all very well; they can be altered so easily. They are administrative affairs and they are not known to the world outside. The Immigration Act will be known and read in the world outside. I believe that this House, of all places, wants to pass an Immigration Bill in which the world can see that we have made specially fair provisions for those who are genuine refugees and who enter our shores in accordance with convention, and the ordinary principles of mercy which we have shown very generously in the course of our history. It is for that reason that that provision should be put into this Bill and not be left to an order.

In commenting upon the question of procedure—namely, whether it should be in the order or whether it should be enshrined in an Act of Parliament—the noble Earl said that he felt the difficulty in including it in an Act of Parliament was that it might need an amending Act, whereas one could deal with an order in a different way should one require to amend it in the future. That almost emphasises the point that I was trying to make about the ease of altering an order. If we are careful about the wording that we use in regard to this matter, is it really likely that we will want to amend? If an amendment were necessary, is it so difficult to ensure that that amendment is brought before Parliament if the real need arises? That is the first point.

The second point arises out of the content of the draft order. I realise that the House is in some difficulty, because although I have the draft others may not. It has been made perfectly clear by the noble Earl—I want to emphasise this—that this is not a promised draft. The Minister in his courtesy and with his usual lucidity in regard to these matters pointed out that this was really a first draft and that it may be altered in the course of time before it emerges as a final order.

I believe I can make clear to the House what is intended in the order. In the draft the following matters arise. In its thinking (if I may put it that way) the draft order exempts from Clause 4(1) of the present Bill, any person who claims that his deportation would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees". Later the order says that a person so exempted, may appeal under Section 15 of that Act against a decision to make a deportation order against him on the grounds that"— and the words are almost repeated by way of saying that, his deportation would be contrary to the United Kingdom's obligations under the Convention". There is another ground; namely: that on the facts of his case there is in law no power to make the deportation order for the reasons stated in the notice of the decision". For all practical purposes we can ignore the latter provision because it is most unlikely that a deportation order would be made if there was no power to do so.

We are therefore left with the bare right of appeal under the provisions of this draft order. I emphasise the fact that it is a first draft and the noble Earl in no way committed himself to this as the final wording. I have already said why I do not think it should be an order, but we are left with an order where the bare right of appeal is limited to the fact of its being the deportation order which is contrary to our obligations.

In order to bar any right of appeal the answer that the Government can so easily give—I am not thinking of any specific government and certainly not of this one, but we are legislating here for all types of government—is, "We have looked at the bare definition in the convention. We take the view that however we might have been moved, and possibly should have been moved, by mercy in this case, it is not within our obligations under this convention to admit. That may be by virtue of numbers or the fact that there is a nearer country over whose borders this man might have gone together with his family instead of coming to us; but this is no obligation". If there is no obligation then there is no right of appeal.

The next point is that quite apart from objecting to an order as against legislation, I feel that we ought not to be satisfied with the wording of the order as it is at present going through the Minister's mind. Within our legislation there ought to be a right of appeal where someone can make a prima facie case that he fears persecution and the fate that might befall him and his family within the meaning of this amendment. The amendment, of course, follows the wording of the convention.

I now turn to the best way of dealing with such an appeal. I respectfully say to the House that there ought to be a completely independent and specialised body to which such an appeal can be directed. It will have experience of the condition of refugees, of the genuineness of refugees, and it will be able to meet on an ad hoc basis. This body would be, as set out in Amendment No. 8, an asylum review board. What would it be doing, we having told the world that this is what we are prepared to do in regard to our participation in the rescue of refugees?

It would examine decisions to refuse applications for asylum. Those appeals would be from persons, who claim to have a well-founded fear that the country to which they are to be removed will return them to a country where they have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion". The board would have power to direct that, a person shall be granted a right of appeal to an adjudicator if the Board finds the person's fear of being returned to a country where he fears persecution reasonable". It would go to the adjudicator if that prima facie case was shown to the satisfaction of the review board.

Bearing in mind the sympathy expressed by the Minister at col. 67 of the Official Report of 21st March, it may well be that he will have something more advantageous, more tidy and more sensible to put forward than our amendments. My colleagues and I do not claim (and I am sure that the noble Lords, Lord McNair and Lord Bonham-Carter, will not claim) that we want to do anything other than produce a proper, practical result uniting with our colleagues throughout the House. I await with some anticipation the Minister's reply, which I hope will be sympathetic. One will then be able to decide the best method of proceeding for the benefit of one section of the community alone, and certainly not for the benefit of any political party. The section of the world that I am talking about at this moment are our refugees.

Lord Walston

My Lords, I am sure that the noble Earl is just as anxious as noble Lords who have spoken and have put their names to the amendments that this country should not return a would-be asylum-seeker to a country where he will be persecuted on the grounds that are set out here. It is simply a question of how to ensure that. It is all very well to say that the decision rests with the Secretary of State. However, as realists we know perfectly well that the Secretary of State has no time to investigate personally the pros and cons of the arguments put forward by the asylum-seeker. He obviously, and rightly, has to take the word of his officials.

In many cases—I do not say all cases—we know that the decision is taken at the relatively low level of the immigration officer and then moves up through the hierarchy. We want to establish that the asylum-seeker will have an opportuntity to put his case in the best possible light for himself, and not simply to one man who has to deal with a myriad of would-be entrants into this country, some of whom are legitimate and some, unfortunately, who are without good grounds for coming. We want to establish that the asylum-seeker will have his opportunity of convincing an experienced and impartial body that if he is returned to his country of origin he will be in danger of persecution on the various grounds set out. Surely the best way of achieving that is to give him the right of appeal to just such a body, which is experienced and impartial, and at the same time give him the opportunity of producing, probably with professional assistance, evidence which will support his case. Very often that will not be possible for him to do under the present circumstances.

The proposals put forward in the three amendments go a long way to ensuring that what we all want should be done, and, as the noble Lord, Lord Mishcon, rightly pointed out, should be seen by the rest of the world to be done. It is our desire not simply to keep out as many people as we possibly can but to keep out those who are trying to find a loophole in our legislation and to allow into this country those who are in genuine fear of persecution in their own countries. I share the hope expressed by other noble Lords that the noble Earl will look with favour on the principles behind the three amendments, whether or not he accepts them in toto, and if he fails to do that he will hold out some hope of other methods of achieving the common end so that not only he and his colleagues but all noble Lords who have spoken in support of the amendments are satisfied.

Lord Pitt of Hampstead

My Lords, I have dealt with immigration cases over the years and I am convinced that the setting up of appeals tribunals has improved conditions tremendously. By allowing people to go to an adjudicator and if necessary to the appeals tribunal we have improved conditions tremendously for people seeking through the immigration rules to enter this country. The conditions of asylum-seekers are much more serious. If a mistake is made someone may be sent back who has a genuine fear not merely of his liberty but also of his life.

We are dealing with somebody for whom the decision is of the utmost importance. Therefore it is even more important that we should try to get it right. The proposal that we have some form of appeal machinery for asylum-seekers in those circumstances is one which I feel every Member of your Lordships' House should consider seriously. As the Minister is the person who will have to deal with it immediately, I hope that he will consider it more seriously than anybody else.

As has been said by other speakers, the method is a matter about which we shall have to have further debate this afternoon but the principle needs to be accepted. If we accept the principle, it needs to be in statute. I understand from what we have heard so far that the Minister is proposing to do something via an order. I join the appeal to him that if we accept the principle, let us make sure that we put it in statute.

4 p.m.

Earl Ferrers

My Lords, the noble Lord, Lord McNair, said when he moved the amendment that he was in some confusion. I fear that I am in even more confusion now because it appears that we are talking not just to his amendment but also to Amendment No. 8, which deals with the Asylum Review Board. Both amendments deal with people arriving at the ports. At the same time we are dealing apparently with Amendment No. 5 in the name of the noble and learned Lord, Lord Elwyn-Jones, which concerns appeals against deportation—in other words, people who are leaving. I think that we have got ourselves into a modest disarray. Even if the noble Lord, Lord Mishcon, shakes his head with the clarity of mind which he always has, those of us who do not have such an advantage find it a little more confusing than he does.

The noble Lord, Lord Mishcon, said that we need to take care of the position of genuine refugees. On that aspect there is nothing between us. Indeed, it is an expression I have used before and I use it again: we are anxious to take care of those who are genuine refugees. My noble friend Lord Renton said that we must keep an open and receptive mind in the matter. I hope that we shall because we are anxious to get the balance right and it is a difficult position to be in.

The purpose of the amendment of the noble Lord, Lord McNair—Amendment No. 2—is to introduce a form of in-country appeals system for those who arrive at our ports and claim asylum. The present position is that those people have a right of appeal, but of course it is exercisable only from abroad.

The argument in favour of the amendments is clear: that it is unsatisfactory that people who claim to be in fear of persecution—indeed, perhaps in fear of their lives—should be expected to return to the very country in which they fear persecution while they wait for an adjudicator to decide whether their fear is well-founded. I can understand and sympathise with that argument. Those are important issues which the Government take most seriously and which we have considered with great care.

The essence of our objection lies not so much in the fact that we do not want to look after the genuine refugee but in the fact that such a system, which permitted asylum applicants to remain in the country while their appeals were heard, would open the way to widespread abuse and delays which would ultimately have the effect of undermining our asylum determination procedures.

My noble friend Lord Renton said that the number of asylum-seekers is on the increase. He is quite correct. Indeed the experience of other countries points in that direction. For example, if one looks at the Canadian system, one sees that at present all asylum applicants have access to the appeals system within that country. The number of asylum applications has risen from 1,600 in 1980 to almost 30,000 in 1987, with a backlog of more than 40,000 cases outstanding, which is rising at a rate of about 2,500 each month. The noble Lord, Lord Bonham-Carter, chivvied us in Committee about the length of time taken by the appeals system. I ask him now to address his mind to the Canadian situation and to think what would happen to our appeals system if that practice were to be followed in this country.

Since May 1986 Canada has succeeded in removing only 140 of the total number of unsuccessful asylum applicants. The backlog in that respect was so bad that she even granted an amnesty in May 1986 when 22,800 asylum claimants were allowed to remain, irrespective of the merits of their case. However, even that measure did not help the situation. In the words of the Canadian Minister of Employment and Immigration: Canada's refugee-determination system is strained to the breaking point". As a result, Canada has had to introduce legislation, which is now before her parliament, designed to streamline such procedures and, hopefully, to contain what she sees as the present abuse of the system.

However Canada is but one example; Denmark provides another. After introducing a more elaborate refugee determination procedure, Denmark found herself facing greatly increased numbers of asylum applications; in one month alone they received 3,000 which was a five-fold increase. As a result of that Denmark has also had to modify her procedures.

I cited those examples as an indication of the general trends which exist elsewhere. I am not, however, suggesting that, if the United Kingdom introduced a port appeals system, we would find ourselves, as Canada has, with 30,000 applications in one year. My point is merely that it would be unrealistic to expect that the United Kingdom alone would be immune from such pressures.

It is of course impossible to say precisely what effect the introduction of a port appeals system would have. It is, however, relevant to consider the number of people who at present have no in-country right of appeal and who are refused leave to enter this country each year. Last year there were about 19,000 such people. If all that those people had to do, in order to ensure that they were not immediately removed from the United Kingdom, was to claim asylum, it seems to me to be fairly safe to assume that a large proportion of them would do so.

It is reasonable to ask what effect that would have on the appeals system. At present there are about 100 port arrivals per year who have an in-country right of appeal—that is, people with entry clearances or work permits—and who exercise that right. It takes two to three months for their appeals to be heard by an adjudicator, with further delays if the case then goes to a tribunal or if there are applications for a judicial review. It takes little imagination to guess what would happen if the number of appeals increased even tenfold to 1,000—and the likelihood must be that the numbers would be far greater—especially when one realises that the potential is about 19,000 already, and that the introduction of the system would encourage others to try their luck.

Although the United Kingdom has not experienced such a dramatic rise in the number of asylum applications as many other countries have, the numbers nevertheless have tripled since 1979 while the proportion qualifying for refugee status has declined from 60 per cent to 13 per cent. So more people have applied— unsuccessfully—for asylum. However, over the same period between 70 per cent. and 80 per cent. of asylum applicants have in fact been allowed to remain in the United Kingdom merely because, although the majority do not qualify for refugee status, it has become impossible to remove them because of the passage of time. Therefore, if we start building even greater delays into the system, as the amendment requires, those figures would rise still further, and I do not believe that that would be a satisfactory situation.

We do not therefore believe that an in-country appeals system is a feasible proposition. In our view a better approach would be through a revised referral system which would allow an independent view to be put forward in the majority of port cases. Referral arrangements of that sort, which would involve a 24-hour turn-round of cases where safe third countries were concerned, are presently under discussion between the United Kingdom Immigrants Advisory Service (UKIAS), the United Nations High Commissioner for Refugees (UNHCR) and the Government. It would not be right for me to provide any details about those proposed arrangements as they are still under discussion, but we hope that it will be possible to reach agreement on a satisfactory scheme.

The noble Lord, Lord Mishcon, said in relation to the amendment of the noble and learned Lord, Lord Elwyn-Jones, (Amendment No. 5) that we should be satisfied with an order. In Committee I said that I would consider whether it would be possible in the short time available to produce a draft order. The noble Lord then very courteously and correctly said that what was produced was not written in tablets of stone and therefore could well be changed. However, we did produce a first draft of an order and I hoped that he would agree that this would effectively meet the objections and the points which he sought to enshrine.

The order will provide a right of appeal, on asylum grounds, to the appellate authorities against the decision to make a deportation order. That right of appeal will apply irrespective of the length of time that a person has been in the country. The noble Lord, Lord Mishcon, spurned the fact that the draft order could be amended, but the whole point of a draft order is that it can be amended, and not just for asylum-seekers; it includes those people who have left on a trip abroad during the currency of their leave.

I had hoped that your Lordships would have considered that it was appropriate to keep the order-making power in the Bill, but not because some terrible trick is going to be played. If there were some terrible trick, the noble Lord, Lord Mishcon, and your Lordships could always complain and could refuse to accept the order, because it will be subject to parliamentary resolution. The advantage of keeping it is that it preserves a measure of flexibility. It enables any government to take account of the possibility that additional categories of people might, at some future stage, be regarded as meriting exemption, without the need to introduce primary legislation.

Lord Tordoff

My Lords, I am sorry to interrupt the noble Earl, but he made a statement which I do not think is strictly accurate. The House does not vote against such orders. It may discuss them, but it does not vote against them.

Earl Ferrers

My Lords the purpose of a negative resolution is that the order is put down and comes into effect unless Parliament decides against it. If a debate is held and the order is voted against in either House, the order fails.

Lord Tordoff

My Lords, does the noble Lord accept that it is the convention of the House that we do not vote against such orders?

Earl Ferrers

My Lords, whatever the convention, that is the right of Parliament. It is the right of both Houses. It depends upon the orders. The noble Lord, Lord Tordoff, shakes his head, but I well remember the Stansted order being voted against in the House many years ago, before, if I may say so, we had the advantage of having the noble Lord with us. That created the most fearful row. The Stansted order was considered here, and I think I am right to say was voted against. Anyhow, the Government withdrew it. The noble Lord will remember what then happened to Stansted Airport.

Having had that mild diversion, perhaps I may return to the point of this series of amendments. I understand the noble Lord's great concern to see that the genuine refugee seeker is permitted asylum. I can assure your Lordships that a genuine refugee is normally easily identified and will be granted refugee status. In some cases where there is real doubt the asylum-seeker may be granted exceptional leave to enter. It is because we are concerned that people should not abuse the system that I am hesitant to invite your Lordships to accept the amendment.

Lord McNair

My Lords, the amendment which I so hesitantly moved a long time ago has received powerful support, and not only from this side of the House. I must admit that the noble Earl's somewhat deadpan response has not encouraged me. To hear those administrative arguments when we are discussing the most fundamental human rights matters is profoundly depressing. I have always felt that the 1951 convention on refugees was perhaps the noblest and most unsordid collective act of the governments of the world that there has ever been. I regard our adherence to that convention and to the principles underlying it as perhaps the most important test of our national reputation. I feel obliged to ask the House to agree with me.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 146.

DIVISION NO. 1
CONTENTS
Airedale, L.	Kilmarnock, L.
Amherst, E.	Leatherland, L.
Ardwick, L.	Llewelyn-Davies of Hastoe, B
Attlee, E.	Lloyd of Hampstead, L.
Aylestone, L.	Lloyd of Kilgerran, L.
Banks, L.	Lockwood, B.
Basnett, L.	Longford, E.
Bonham-Carter, L.	Lovell-Davis, L.
Boston of Faversham, L.	McNair, L.
Bottomley, L.	Mayhew, L.
Briginshaw, L.	Mishcon, L.
Brooks of Tremorfa, L.	Molloy, L.
Bruce of Donington, L.	Mulley, L.
Campbell of Eskan, L.	Nicol, B.
Carmichael of Kelvingrove, L.	Oram, L.
Carter, L.	Parry, L.
Cledwyn of Penrhos, L.	Peston, L.
Cocks of Hartcliffe, L.	Pitt of Hampstead, L.
Davies of Penrhys, L.	Ponsonby of Shulbrede, L.
Dean of Beswick, L.	Rathcreedan, L.
Donaldson of Kingsbridge, L.	Ritchie of Dundee, L.
Dormand of Easington, L.	Sainsbury, L.
Elwyn-Jones, L.	Saint Brides, L.
Ennals, L.	Seear, B.
Ezra, L.	Serota, B.
Falkland, V. [Teller.]	Shackleton, L.
Fisher of Rednal, B.	Shaughnessy, L.
Foot, L.	Shepherd, L.
Gallacher, L.	Stallard, L.
Galpern, L.	Stedman, B.
Glenamara, L.	Stewart of Fulham, L.
Graham of Edmonton, L.	Stoddart of Swindon, L.
Grey, E.	Taylor of Blackburn, L.
Grimond, L.	Taylor of Gryfe, L.
Hampton, L.	Taylor of Mansfield, L.
Hanworth, V.	Tordoff, L. [Teller.]
Harris of Greenwich, L.	Underhill, L.
Henderson of Brompton, L.	Wallace of Coslany, L.
Hooson, L.	Walston, L.
Houghton of Sowerby, L.	Wells-Pestell, L.
Hunt, L.	Whaddon, L.
Hutchinson of Lullington, L.	Wigoder, L.
Irving of Dartford, L.	Willis, L.
Jacques, L.	Winchilsea and Nottingham, E.
Jay, L.
Jeger, B.	Winstanley, L.
John-Mackie, L.

NOT-CONTENTS
Abinger, L.	Jenkin of Roding, L.
Airey of Abingdon, B.	Kaberry of Adel, L.
Aldington, L.	Kimball, L.
Allerton, L.	Kinloss, Ly.
Annan, L.	Kinnaird, L.
Arran, E.	Kitchener, E.
Auckland, L.	Lauderdale, E.
Balfour, E.	Layton, L.
Bauer, L.	Lloyd-George of Dwyfor, E.
Beaverbrook, L.	Long, V.
Belhaven and Stenton, L.	Lucas of Chilworth, L.
Beloff, L.	Luke, L.
Belstead, L.	Lurgan, L.
Bessborough, E.	Lyell, L.
Birdwood, L.	McFadzean, L.
Blake, L.	Mackay of Clashfern, L.
Blyth, L.	Macleod of Borve, B.
Boyd-Carpenter, L.	Malmesbury, E.
Brabazon of Tara, L.	Margadale, L.
Brookeborough, V.	Marley, L.
Brougham and Vaux, L.	Merrivale, L.
Broxbourne, L.	Mersey, V.
Bruce-Gardyne, L.	Milne, L.
Butterworth, L.	Milverton, L.
Caithness, E.	Monk Bretton, L.
Campbell of Alloway, L.	Moran, L.
Campbell of Croy, L.	Morris, L.
Carnegy of Lour, B.	Mottistone, L.
Carnock, L.	Munster, E.
Carr of Hadley, L.	Nelson, E.
Chapple, L.	Newall, L.
Chelwood, L.	Nugent of Guildford, L.
Coleraine, L.	O'Brien of Lothbury, L.
Colnbrook, L.	Onslow, E.
Constantine of Stanmore, L.	Orkney, E.
Cottesloe, L.	Orr-Ewing, L.
Crickhowell, L.	Oxfuird, V.
Cullen of Ashbourne, L.	Pender, L.
Daventry, V.	Penrhyn, L.
Davidson, V. [Teller.]	Peyton of Yeovil, L.
De Freyne, L.	Plummer of St. Marylebone, L.
Denham, L. [Teller.]
Derwent, L.	Porritt, L.
Dulverton, L.	Portsmouth, E.
Dundee, E.	Renton, L.
Elibank, L.	Ridley, V.
Ellenborough, L.	Rochdale, V.
Faithfull, B.	Romney, E.
Ferrers, E.	Rugby, L.
Fisher, L.	St. Davids, V.
Fortescue, E.	St. John of Fawsley, L.
Fraser of Kilmorack, L.	Saltoun of Abernethy, Ly.
Gainford, L.	Sanderson of Bowden, L.
Gainsborough, E.	Selborne, E.
Gibson-Watt, L.	Selkirk, E.
Glenarthur, L.	Sempill, Ly.
Grafton, D.	Shannon, E.
Greenway, L.	Sharpies, B.
Gridley, L.	Skelmersdale, L.
Grimston of Westbury, L.	Somers, L.
Haddington, E.	Stodart of Leaston, L.
Hailsham of Saint Marylebone, L.	Strange, B.
	Terrington, L.
Halsbury, E.	Thomas of Gwydir, L.
Hardinge of Penshurst, L.	Thorneycroft, L.
Harmar-Nicholls, L.	Thurlow, L.
Harvington, L.	Trafford, L.
Havers, L.	Trumpington, B.
Hesketh, L.	Vaux of Harrowden, L.
Hives, L.	Waldegrave, E.
Hood, V.	Ward of Witley, V.
Hooper, B.	Whitelaw, V.
Huntly, M.	Wynford, L.
Hylton-Foster, B.	Yarborough, E.

Resolved in the negative, and amendment disagreed to accordingly.

4.22 p.m.

Lord McNair moved Amendment No. 3: After Clause 3, insert the following new clause:

("Code of Practice on asylum application.

. The Secretary of State shall cause to be published from time to time a Code of Practice covering all aspects of the consideration of applications for asylum in the United Kingdom made under the terms of the 1951 Convention on the Status of Refugees and the 1967 Protocol thereto.").

The noble Lord said: My Lords, I beg to move Amendment No. 3. Your Lordships will have noticed that this amendment has certain similarities with Amendment No. 12, which stands in the name of the noble Lord, Lord Hylton. My amendment is a much shortened version. The noble Lord, Lord Hylton, is unable to be here today and he asked me to move his amendment on his behalf; but at present I am talking to Amendment No. 3. I shall inevitably cover the same ground as with No. 12, and what I shall do is listen to the noble Earl's response to this discussion and then decide which amendment to withdraw and which to press.

Both of them ask that the Secretary of State should publish a code of practice covering all aspects of the consideration of applications for asylum in the United Kingdom. The longer version which the noble Lord, Lord Hylton, put down lists some of those aspects, though I must say I do not regard the list as being an exhaustive one and there may be some quite important omissions involved.

My version simply asks for the publication of a code of practice and leaves its contents to the discretion of the Home Office. This is no new request. Organisations set up with government help to assist refugees and asylum seekers have long been asking for this. It would help them; it would help their clients; and I think it would also help our immigration officers, for whom asylum seekers represent something of a departure from their normal line of work. This is a very minimal request. We are not asking for any change in the law. We are merely asking that for the purpose of clarification the Home Office should do something which I should have thought it would willingly do of its own volition. I beg to move.

Lord Renton

My Lords, when we were discussing the last amendment in the previous debate on asylum—a very important debate which lasted one and a quarter hours—the noble Lord, Lord Mishcon, made what I said was a wise suggestion: that we should consider these other amendments on asylum together. I must confess I had overlooked the amendment put down by the noble Lord, Lord Hylton, though I saw it on the Marshalled List last week.

My noble friend Lord Ferrers gave a very full reply to that last debate, which seemed to me to cover everything that really could be said on these further amendments. In particular, my noble friend said—and he gave very strong reasons for doing so—that a right of appeal from the decisions of the Home Secretary in cases of asylum is simply not on.

The noble Lord, Lord McNair, has said that there is nothing new in having a code of practice and there would be nothing new in such a code of practice as is contained in his amendment. But Amendment No. 12, by the noble Lord, Lord Hylton, would cause big changes to be made, including the right of appeal to which that amendment refers in subsection (2)(a). So I hope that we can deal with this matter quite briefly and I really would not expect my noble friend Lord Ferrers to give a sympathetic reply.

Lord Mishcon

But I would, my Lords. I have more faith in the noble Earl than presumably some of his colleagues have. First, perhaps I may make the point that when I suggested to the House, and the House was good enough to agree, that similar subjects should be taken together since our speeches would be concentrated on them and the time of the House would be saved, we were dealing purely and simply with the right of appeal. That matter was put to the House and the House, to my personal regret, has decided in a certain way in regard to the right of appeal. With all due respect to the noble Lord, Lord Renton, we are now dealing with an entirely different matter. It has nothing to do with appeals. It has—

Lord Renton

My Lords, if we are referring to Amendment No. 12, as the noble Lord, Lord McNair, invited us to do, that in fact refers to appeals, as I mentioned.

Lord Mishcon

My Lords, I said—and the noble Lord, Lord Renton, will have heard me—that the amendment we are dealing with, which is Amendment No. 3, has nothing to do with the question of appeals. We have not reached the other amendment. The noble Lord, Lord Hylton, is not at the moment in his place, and for all I know that amendment may not be moved. I merely say, in order to be perfectly frank with the House, that when I read his amendment I thought it went far too far to stand any chance of being accepted by the Government. I would in all frankness make that remark if and when the amendment is moved.

What we are considering at the moment, I repeat, has nothing to do with appeals or appeals procedures. What it has to deal with is this. How with uniformity—and I use one of the favourite words of the Minister—and how with flexibility do we deal with the consideration of applications by refugees? What we are asking for here—and we join with the noble Lord, Lord McNair, in this amendment—is a code of practice to be produced which can be varied from time to time, thus giving all the flexibility that the noble Earl seeks in these matters, and which lays down what are the matters to be considered when dealing with the question of refugees.

It will be of great use to immigration officers. It will be of great use to those organisations which look after refugees, because they will be able to point to the code of practice, and say whether they are within that code or without that code if they are helping refugees. It will be helpful to civil servants. It will be helpful to the outside world, which will now find no specific reference to the convention in the Bill such as that for which we are asking or to the care of refugees in the particular respect to which the previous amendments were related. Obviously also there will be great help in the ordinary citizen, and indeed in a refugee and the advisers of a prospective refugee, knowing the way in which his application would normally be treated and what would be the main points of consideration which those who were dealing with him would, and should, have in mind.

The noble Lord, Lord Renton, is always very helpful, and I am sure he will agree with me that it would be unhelpful if on this occasion anyone looked at any other amendment which is not being grouped with this at the moment but which is being dealt with on its own so far as I am concerned—namely, Amendment No. 3—and was confused into thinking that we are also voting on any other amendment at all.

4.30 p.m.

Lord Renton

My Lords, before the noble Lord sits down, and because he has so kindly referred to my attitude on this, let me say that I was going simply by what the noble Lord, Lord McNair, said when in moving his Amendment No. 3 he referred to Amendment No. 12 in the name of the noble Lord, Lord Hylton. He said that the noble Lord had asked him to move it and then started commending it.

Lord McNair

My Lords, with the leave of the House I think I can clear this up. I only referred to the amendment of the noble Lord, Lord Hylton, as a courtesy to the absent noble Lord because he had asked me to do so. It is perfectly clear that I am moving Amendment No. 3, as the noble Lord, Lord Mishcon, has said, and that we are not considering the later one.

Earl Ferrers

My Lords, that clears up one little problem. I had thought that, had we taken the earlier amendments one by one, instead of in threes and fours, it would have been easier. I also thought that, had we taken the amendment of the noble Lord, Lord Hylton, with that of the noble Lord, Lord McNair, that would have been easier too. But the noble Lord, Lord McNair, said no; he would just move his amendment even though he referred to the other one so I shall endeavour to address such remarks as I have to make to his amendment. But inevitably the two are linked together and it is quite difficult to see how to separate them without leaving the amendment of the noble Lord, Lord Hylton, totally unanswered.

The noble Lord, Lord Mishcon, said that he had a great deal of faith in me, much more than my noble friend behind me. I found that touching. I should like to be able to accommodate him on this as on so many other matters. But the amendment which the noble Lord, Lord McNair, has moved requires the Secretary of State to draw up a code of practice which both he and the noble Lord, Lord Mishcon, think is highly desirable. The amendment of the noble Lord, Lord Hylton—and I only refer to this as a courtesy, just as the noble Lord, Lord McNair, referred to it—would specify the particular matters which the code is to cover, while the amendment of the noble Lord, Lord McNair, and the noble Lord, Lord Chitnis, leaves this to be determined presumably by the Secretary of State.

So far as the rules and general principles are concerned, these are already available. The United Kingdom is bound by the provisions of the 1951 United Nations Convention on the Status of Refugees which sets out the test for refugee status and various other provisions relating to the treatment of refugees. In applying the provisions of the convention, officials in the Refugee Unit of the Immigration Department are guided by the advice contained in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status. The Immigration Rules also contain provisions relating to asylum-seekers. Since all these provisions are already generally available, I suggest to your Lordships that there seems little point in requiring my right honourable friend to republish them.

Moreover these documents together already effectively cover the whole area of asylum procedures and it is difficult to see why in this area of immigration practice alone a separate additional code of practice is required. There is no such code governing other aspects of immigration control in respect of which there is perhaps not such comprehensive guidance as already exists in the asylum area.

That is an area of law and practice which is subject to constant review. Last year alone there were, for example, four significant legal judgments which affected our procedures and practices. In the circumstances it is clearly essential that we have a system which is sensitive and able to respond flexibly to developments and changing circumstances. I believe it would be unwise to limit our ability to respond in this way by drawing up a code of practice which would inhibit future developments.

As for the other matters which are to be covered by the noble Lords' code, a number already represent existing practices. Immigration officers are, for example, already being given training in asylum matters and the majority of asylum applicants who are not otherwise represented are referred to the United Kingdom's Immigrants Advisory Service, while those refused asylum at a port are given detailed reasons for their refusal. As for explanatory literature for asylum-seekers, the Government are only too ready to discuss with the various interested organisations the form and content of such literature; indeed, we have already had discussions with the British Refugee Council on this very matter.

I should point out that neither the amendment of the noble Lord, Lord McNair, nor indeed the one which we are not referring to, which is that of the noble Lord, Lord Hylton—but were we referring to it the same objection would apply—seeks to make the code enforceable in any way. This could be said in part to meet the objection which I have raised that a code would have an inhibiting effect. On the other hand, if it is not enforceable there does not seem very much point in having a code. So I hope your Lordships will agree that on the whole it is better to leave the system as it is in the Bill.

Lord McNair

My Lords, I am very grateful to the noble Earl for that reply, which I should like to study and consult about with those who know more about this matter than I do. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Restricted right of appeal against deportation in cases of breach of limited leave]:

Lord Elwyn-Jones moved Amendment No. 4: Page 3, line 17, at end insert ("or on the ground that he has a spouse, parent or child settled in the United Kingdom and that deportation is not therefore appropriate".

The noble and learned Lord said: My Lords, Amendment No. 4 is a modest amendment and I think that it, for a change, stands alone. It refers to spouses, which indicates more than one party. This arises from Clause 4 of the Bill, which restricts the right of appeal against deportation in cases of breach of limited leave. Subsection (1) provides that, A person to whom this subsection applies shall not be entitled to appeal under section 15 of the principal Act against a decision to make a deportation order against him Then the provisions in paragraphs (a) and (b) are set out: except on the ground that on the facts of his case there is in law no power to make the deportation order for the reasons stated in the notice of the decision". The amendment proposes to add another exception on the ground that the person in question, has a spouse, parent or child settled in the United Kingdom and that deportation is not therefore appropriate".

The amendment therefore proposes that if a person threatened with deportation can show that he has a spouse, a parent or a child settled here and deportation is not therefore appropriate, the adjudicator hearing the deportation appeal would be enabled to take into account the fact that the person concerned has relations, a family, a spouse, parent or child, settled in the United Kingdom. In other words, if the person concerned is settled here with a family base, deportation of that person would not be appropriate. This is a straightforward, simple, and humane consideration. At any rate it carried the sympathy of the noble Earl, Lord Ferrers, when he said in Committee: Family ties, together with any other compassionate circumstances which may be present, will continue to be taken into account before a decision to deport is taken." [Official Report, 21/3/88; col. 63.] That is splendid, so far as it goes. But, in my submission, it is sufficiently important to be embodied in the Bill itself. It goes directly to the important issue of maintaining the unity of families settled here in this country. We have said on more than one occasion that the Bill threatens to undermine that.

This is a straightforward and humane proposal that seeks to keep families together. In the circumstances described, where deportation would clearly be inappropriate, it is right that this should be a consideration in the mind of the adjudicator when he has to determine an appeal. I beg to move.

4.45 p.m.

Lord Renton

My Lords, this matter was debated and, I thought, quite thoroughly debated, in Committee. It seemed to me at the time that this amendment was wrong and that one could carry family unity too far. I gave an example of a murder case in which I prosecuted where a man who was married in this country took unto himself a mistress. He murdered the mistress and the court ordered imprisonment for life in the usual way and made a deportation order. The case went to the Court of Appeal on the question of whether a deportation order was appropriate in the circumstances of the sentence of life imprisonment. There was no question as to whether there was a spouse, admittedly.

A family which is over here might include several sons, one of whom has committed a number of crimes making him eligible for deportation by order of the court. It is absurd that because he happens to have other members of his family here, he should be given a right of appeal against the deportation order. That is not a right of appeal within the ordinary structure of our system of justice; it is a right of appeal granted under our immigration laws.

I can easily see a conflict arising between, for example, a deportation order which has been the subject of an appeal in the Court of Appeal and a deportation order which is the subject of an appeal under Section 15 of the principal Act. It does not seem to me to make sense, with great respect, that we should have this amendment.

I take up a point made by the noble and learned Lord, Lord Elwyn-Jones, who said that he and his noble friend supporting the amendment were merely asking, on compassionate grounds, that the fact that there is a spouse or other member of the family here should be taken into account when deciding whether there should be entitlement to an appeal. However, if one reads through the amendment, it is not merely a question of taking that matter into account. It would mean, I understand, that the fact that there was another member of the family here would entitle the person concerned to appeal against the deportation order. It is not a matter of discretion; it is a matter of entitlement.

Lord Pitt of Hampstead

My Lords, I cannot see what is wrong with that. The Bill says that if a person is to be deported because of a breach of limited leave or by virtue of being the member of a family that is to be deported, he cannot appeal except on the grounds that the facts are different. In effect, that is what the Bill says. All the amendment says is that the fact he has a spouse and children here and therefore has some serious attachment to this country should be one of the grounds on which he makes an appeal. It does not follow that his appeal will be successful; all the amendment does is to allow that fact to be taken into account.

We read a great deal in the press about families in difficulties as a result of the deportation often of the father leaving a mother with children here. It may well be that in the final analysis, after hearing the appeal, the adjudicator will still think the right course is for that person to be deported. But, certainly, it is right that the conditions that would be created by his deportation are taken into account.

As I see it, all this amendment asks is that when a person makes his appeal, it should be not only that, on the facts of his case, there is in law no power to make the deportation order but also that he has ties with this country by virtue of having a spouse, children or a parent here that should be taken into account. That is all that the amendment asks. It asks that an appeal that there is in law no power to make the deportation order should be made not only on the facts of the case but also on the basis that there are ties in this country by virtue of having a spouse, child or parent here. Unless there are serious grounds for not allowing it, the amendment seems to me to be extremely reasonable.

Lord Mishcon

My Lords, perhaps I may add briefly to the debate. The noble Lord, Lord Renton, raised a point which should be dealt with. I believe he suggested to the House that, on the wording of the amendment, the mere fact that someone could say that he had a spouse, parent or child settled in the United Kingdom would entitle him as of right to a successful appeal.

Lord Renton

My Lords, no, to appeal.

Lord Mishcon

My Lords, if the noble Lord says, "to appeal", then that must be right. If he had said that someone was entitled merely on proof of such facts to succeed on appeal, that would obviously have been wrong. I should have then referred the noble Lord to the words of the amendment. If that is the noble Lord's understanding, it is correct.

The ground of an appeal would be that there was a child, spouse or parent settled in the United Kingdom and it would therefore be inappropriate for a deportation order to be made. That is the wording of the amendment and that would be the ground of appeal. At the moment, the Bill is harshness with an underlining. The only ground of appeal against deportation, as regards a breach of limited leave or a person belonging to the family of someone who has been ordered to be deported by virtue of Section 3(5)(a), would be in regard to a stay of seven years in this country. The number of deportations which would be made for people who had been here for seven years would be few and far between.

It is all very well using examples involving murder cases, which one hopes are somewhat exceptional, and speaking of someone who has a spouse and a mistress, and who has murdered the mistress. It is all very well to take the cases of wicked people. I should rather the House concentrated on those who are not wicked and who have merely overstayed their leave, applied and been told that they must go. Under the clause, having to go means literally being deported from these shores with the consequent breaking up of a family.

If we were arguing that the mere decision to do that should not be operative, I could well understand your Lordships' saying that there may well be cases where it should be operative. However, we are only saying that if a person can show that he has such a link with this country and has a settled child, spouse or parent, then he should have a right to go on appeal, argue his case and say that deportation would not be appropriate and would break up a family quite needlessly.

We are merely asking for the right of appeal. Many decisions have been taken so far in your Lordships' House which, in my submission, are very harsh. I ask your Lordships not to add to their number by resisting the amendment.

Earl Ferrers

My Lords, the noble and learned Lord, Lord Elwyn-Jones, said that this was a simple, straightforward and humane amendment and that he wished it to be given consideration. Of course one gives it consideration. However, I am bound to say that it would drive a coach and horses through the philosophy of Clause 4. The noble Lord, Lord Pitt, said that he wanted appeals to include not only on the facts but also on compassionate grounds and that the amendment was very reasonable.

I think it may be helpful if I remind the House briefly of what Clause 4 does because I think that there was some uncertainty about that during our debate in Committee. Clause 4 is not in any way concerned with the appeal rights of people who are refused entry clearance overseas, nor with people who are admitted to this country and then apply to extend their stay here but are refused. In both cases, there is a wholly separate right of appeal, unaffected in any way by Clause 4.

Clause 4 is concerned only with people who have broken the law, either by remaining here when their permission to do so has expired, or by breaking the conditions of their admission. They have broken the law. The noble Lord, Lord Mishcon, said that the Bill was "harshness with an underlining" and that the amendment was reasonable. I repeat that it refers only to people who have broken the law.

The noble Lord, Lord Mishcon, also said that after seven years people will be, as it were, all right. After seven years the position is that both the facts and the compassionate grounds can be considered together. Until such a person has been in this country for seven years, we consider that in appeals it is proper that only the facts should be considered.

The intention of Clause 4 is quite deliberately to restrict the scope of appeal hearings to the facts for people who have been here for a comparatively short period of time. When someone has been here for fewer than seven years and has broken the law, quite simply our view is that the fact he has broken the law should take priority at appeal over any other arguments which might be brought forward in his favour.

The Government's objective in Clause 4 would be totally defeated if the adjudicators were required to give priority to the question whether someone has a spouse, parent or child here rather than to the fact of whether a person has overstayed his leave or taken employment when specifically prohibited from doing so.

Having said that, I have said on previous occasions that family ties and any other compassionate factors that may be present will of course be taken into account before a decision to deport is taken. If subsequent representations are made up to the moment the deportation order itself is signed, then those compassionate circumstances will be considered. There is no question of such matters being ignored altogether. The point is that we do not believe that it is right or proper for those compassionate matters formally to be taken into account at appeal hearings against deportations involving people who have been here for fewer than seven years.

At the Committee stage, your Lordships were concerned about this problem. I undertook to consider whether there were any steps which we could take to resolve the uncertainty which some noble Lords felt—particularly the noble Lord, Lord Mishcon—as to whether adjudicators can or cannot recommend the use of the discretion of the Secretary of State on compassionate grounds. I sought to reassure the Committee on that occasion that I am by no means convinced that there is such uncertainty. The appellate authorities are wholly independent of the Home Office and they are appointed by my noble and learned friend the Lord Chancellor.

However, my officials have written to the Lord Chancellor's Department drawing attention to what was said in the Committee's debate on the issue.

Lord Mishcon

My Lords, I hesitate to interrupt the noble Earl, but he will know that the matter with which he is now dealing is entirely separate from this amendment and forms the subject of Amendment No. 9. I shall be arguing the case on Amendment No. 9. I am sure that he would not wish me to argue it now.

Earl Ferrers

My Lords, I was merely adopting a happy precedent which seems to have been part of this Report stage in which we consider a number of amendments together. I was not addressing my remarks specifically to Amendment No. 9 but was merely saying that at Committee stage the noble Lord was concerned that those factors might not be taken into account. However, I shall leave that point and shall not make too much of it.

The point that I seek to make is that we believe that it is right that in appeals only the facts should be considered: has the person broken the law or has he not? If the time comes later for a deportation order to be made, all the compassionate circumstances will be taken into account by my right honourable friend before he signs the order.

Lord Elwyn-Jones

My Lords, I confess that I was hoping for a more sympathetic reply from the noble Earl, who indicated some sympathy in the course of our earlier discussion in Committee.

What it sought is to enable the adjudicator to be clothed with the duty, if that is not putting it too highly, or at any rate with the right to consider the domestic circumstances of the person who may be deported. The case of the single person with no roots in the community in the form of a family is one thing, but where somebody is settled and well established here with a family that surely is a circumstance which should properly be taken into account. It is astonishing that that is thought to be an unreal and almost improper consideration. I am afraid that I must seek the views of the House.

5.2 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 82; Not-Contents, 151.

DIVISION NO. 2
CONTENTS
Airedale, L.	Leatherland, L.
Amherst, E.	Lloyd of Hampstead, L.
Ardwick, L.	Lloyd of Kilgerran, L.
Attlee, E.	Lockwood, B.
Aylestone, L.	Longford, E.
Banks, L.	Lovell-Davis, L.
Basnett, L.	McNair, L. [Teller.]
Boston of Faversham, L.	Mason of Barnsley, L.
Bottomley, L.	Mishcon, L.
Broadbridge, L.	Molloy, L.
Brooks of Tremorfa, L.	Mulley, L.
Caradon, L.	Nicol, B.
Carmichael of Kelvingrove, L.	Oram, L.
Carter, L.	Parry, L.
Cledwyn of Penrhos, L.	Peston, L.
Cocks of Hartcliffe, L.	Pitt of Hampstead, L.
Davies of Penrhys, L.	Ponsonby of Shulbrede, L. [Teller.]
Dean of Beswick, L.
Donaldson of Kingsbridge, L.	Prys-Davies, L.
Dormand of Easington, L.	Rathcreedan, L.
Elwyn-Jones, L.	Rea, L.
Ennals, L.	Ritchie of Dundee, L.
Ezra, L.	Seear, B.
Falkender, B.	Serota, B.
Falkland, V.	Shackleton, L.
Fisher of Rednal, B.	Stedman, B.
Foot, L.	Stewart of Fulham, L.
Gallacher, L.	Stoddart of Swindon, L.
Galpern, L.	Taylor of Blackburn, L.
Glenamara, L.	Taylor of Gryfe, L.
Graham of Edmonton, L.	Taylor of Mansfield, L.
Gregson, L.	Tordoff, L.
Grey, E.	Underhill, L.
Grimond, L.	Wallace of Coslany, L.
Hampton, L.	Walston, L.
Hanworth, V.	Wells-Pestell, L.
Houghton of Sowerby, L.	Whaddon, L.
Jacques, L.	Wigoder, L.
Jay, L.	Willis, L.
Jeger, B.	Winchilsea and Nottingham, E.
John-Mackie, L.
Kagan, L.	Winstanley, L.

NOT-CONTENTS
Abinger, L.	Campbell of Alloway, L.
Aldington, L.	Campbell of Croy, L.
Alexander of Tunis, E.	Carnegy of Lour, B.
Allerton, L.	Carnock, L.
Arran, E.	Chelwood, L.
Auckland, L.	Coleraine, L.
Balfour, E.	Colnbrook, L.
Bauer, L.	Colwyn, L.
Beaverbrook, L.	Constantine of Stanmore, L
Belhaven and Stenton, L.	Cork and Orrery, E.
Beloff, L.	Cottesloe, L.
Belstead, L.	Craigavon, V.
Bessborough, E.	Cranbrook, E.
Birdwood, L.	Crickhowell, L.
Blake, L.	Cullen of Ashbourne, L.
Blyth, L.	Daventry, V.
Boyd-Carpenter, L.	Davidson, V. [Teller.]
Brabazon of Tara, L.	Denham, L. [Teller]
Brookeborough, V.	Denwent, L.
Brougham and Vaux, L.	Dulverton, L.
Broxbourne, L.	Dundee, E.
Bruce-Gardyne, L.	Elibank, L.
Butterworth, L.	Ellenborough, L.
Caithness, E.	Elliott of Morpeth, L.
Cameron of Lochbroom, L.	Ferrers, E.

Fisher, L.	Nelson, E.
Fortescue, E.	Newall, L.
Fraser of Kilmorack, L.	Norfolk, D.
Gainford, L.	Nugent of Guildford, L.
Gardner of Parkes, B.	Onslow, E.
Gibson-Watt, L.	Orkney, E.
Glenarthur, L.	Orr-Ewing, L.
Grafton, D.	Oxfuird, V.
Greenway, L.	Pender, L.
Gridley, L.	Penrhyn, L.
Grimston of Westbury, L.	Peyton of Yeovil, L.
Haddington, E.	Plummer of St. Marylebone, L.
Hailsham of Saint Marylebone, L.
	Porritt, L.
Halsbury, E.	Portsmouth, E.
Harding of Petherton, L.	Rees, L.
Harmar-Nicholls, L.	Renton, L.
Harvington, L.	Ridley, V.
Havers, L.	Rochdale, V.
Hesketh, L.	Romney, E.
Hives, L.	Rugby, L.
Holderness, L.	St. Aldwyn, E.
Hooper, B.	St. Davids, V.
Hunter of Newington, L.	St. John of Fawsley, L.
Huntly, M.	Saltoun of Abernethy, Ly.
Hylton-Foster, B.	Sanderson of Bowden, L.
Jenkin of Roding, L.	Selborne, E.
Kinnaird, L.	Sempill, Ly.
Kinnoull, E.	Shannon, E.
Kitchener, E.	Sharples, B.
Lauderdale, E.	Shaughnessy, L.
Lawrence, L.	Skelmersdale, L.
Layton, L.	Stodart of Leaston, L.
Lloyd-George of Dwyfor, E.	Strange, B.
Long, V.	Terrington, L.
Lucas of Chilworth, L.	Teynham, L.
Lurgan, L.	Thomas of Gwydir, L.
Lyell, L,	Thomas of Swynnerton, L.
McFadzean, L.	Thurlow, L.
Mackay of Clashfern, L.	Trafford, L.
Macleod of Borve, B.	Trumpington, B.
Malmesbury, E.	Tryon, L.
Margadale, L.	Vaux of Harrowden, L.
Marley, L.	Waldegrave, E.
Merrivale, L.	Ward of Witley, V.
Mersey, V.	Weir, V.
Milverton, L.	Whitelaw, V.
Monk Bretton, L.	Wynford, L.
Moran, L.	Yarborough, E.
Morris, L.	Young, B.
Mottistone, L.	Zouche of Haryngworth, L.
Munster, E.

Resolved in the negative, and amendment disagreed to accordingly.

5.10 p.m.

Lord Mishcon had given notice of his intention to move Amendment No. 5: Page 3, line 17, at end insert ("or on the ground that he has a well-founded fear of persecution in the country to which he is to be deported on grounds of race, religion, nationality, membership of a social group or political opinion").

The noble Lord said: My Lords, many noble Lords have promised to be brief. I promise also to be brief and I shall keep that promise. This amendment deals with Clause 4 of the Bill and the limitation of the right of appeal in regard to which the House has already received an explanation. The right of appeal against the power of the Government to make an order of deportation does not apply to somebody who has settled in this country for a period of fewer than seven years. I ask the House to consider that the period of seven years is unreasonable.

Earl Ferrers

My Lords, perhaps I may interrupt the noble Lord. He has already spoken to Amendment No. 5, and I rather think that he is moving the other amendment. I understood that he intended to say that he did not wish to move Amendment No. 5.

Lord Mishcon

My Lords, the noble Lord is absolutely right and I am grateful to him. In fact I was speaking to Amendment No. 6. I thought that Amendment No. 5 had already been dealt with. However, I am wrong.

Lord Elwyn-Jones

If, my Lords, my noble friend will allow me, I should like to say that for reasons that I need not specify in any detail I regret that I was not present when Amendment No. 5 was called.

Lord Mishcon

My Lords, Amendment No. 5 will not be moved. We wish to reconsider the position and will see where we stand at Third Reading.

[Amendment No. 5 not moved.]

Lord Mishcon moved Amendment No. 6: Page 3, line 19, leave out ("seven") and insert ("three").

The noble Lord said: My Lords, it is difficult not to sound like a gramophone record in these circumstances. Perhaps I may merely say that this amendment seeks to substitute for the period of seven years the more moderate period of three years, that being the period after which someone who is settled in this country will have the right of appeal against a deportation order. That is the short point of this amendment. It is the reasonableness alone of the period which is material to this amendment. I beg to move.

Lord Pitt of Hampstead

My Lords, I hope that the Government will accept the amendment. I do not quite understand why the Government have chosen a period of seven years. When all is said and done, a four or five-year period is sufficient for naturalisation. Seven years seems very arduous. I hope that the Government are prepared to rethink the matter.

Earl Ferrers

My Lords, whatever the noble Lord, Lord Mishcon, thinks he sounds like, I have never considered him to sound like a gramophone record. He always manages to say something different and produces a different intonation on each occasion. It is always fascinating to listen to him and I was delighted to hear him move the same amendment a second time but in different words and with a different inflection.

As the noble Lord moved his amendment briefly, I shall try to be brief in my response. When a figure is mentioned, of course someone always says that it is the wrong one. The point here is that when a person has been in this country for seven years he has the right to have his compassionate circumstances considered along with the facts of his case or his overstaying. We believe that that is right because after seven years he has retained and very likely may have obtained a number of compassionate circumstances. Within three years it is likely that those compassionate circumstances would be less insistent.

I see that the noble Lord shakes his hand in dismay; but I cannot believe that he considers that a person who has been in this country for three years is likely to have as many ties as one who has been here for seven years. I return to my comments on the previous amendment. The whole purpose of appeals is to enable the facts to be considered. After the facts have been considered, if it is decided that deportation is the correct course to take, then of course all the compassionate circumstances will be taken into account. That is the philosophy behind this clause. I know that it is one which the noble Lord, Lord Mishcon, and his colleagues find difficult to accept; but I believe that the figure is a reasonable one.

We are not saying that compassionate circumstances are not considered, but that at appeal the facts should be considered. Of course after seven years it is right that compassionate circumstances should be considered as well. I hope that your Lordships will agree that even though I have spoken at greater length than did the noble Lord, Lord Mishcon, it is only because I have been trying to persuade him of the rectitude of my case as opposed to his.

Lord Mishcon

My Lords, the noble Earl has been gracious enough to say that he has some respect for the fact that not only did I attempt to move an amendment twice, but I made two speeches which had some variety. Perhaps I also may say that we are always delighted to hear the noble Earl. He succeeds in saying no to every amendment and does it by different methods and different speeches. I admire the variety that he offers just as he admired my own.

However, this negative is quite unnecessary. I ask the noble Earl to reconsider what he has just said. We are dealing only with the right of appeal. As the Bill reads at the moment it does not deal with an appeal on facts. The Bill states that one cannot appeal—and I quote the exact words: except on the ground that on the facts of his case there is in law no power to make the deportation order". It is not a question of an appeal on facts; it is a question of saying, "You have no jurisdiction to make this order" and if jurisdiction is not there the appeal does not even get off the ground. There is Ole exception where one can bring in compassionate grounds on appeal; namely, if someone has been settled in this country for at least seven years.

It is not a question of saying that any figure can be argued about and therefore one may just as well argue about seven years as about three years. The House can envisage the hardship that might arise from a deportation order when someone has been settled in this country for three years. Hardship does not necessarily arise out of length of stay. Hardship can occur after a matter of months, let alone years, and such considerations ought to be looked at from the point of view of an appeal.

The Government have turned their face in one amendment after the other against any giving in or yielding to pleas for mercy or consideration or for matters to be on the face of the Bill so that the world may know how we deal with such things as our convention on refugees, for example. I thought that at the very least the Minister could have conceded that a period fewer than seven years ought to appear in the Bill before anybody is denied a right of appeal.

Baroness Seear

My Lords, perhaps the noble Earl will explain to us why he is so certain that after seven years one has acquired so many more commitments and be in so much greater need of consideration than after three years. A man who lives in this country with his family, and who is established here, with his children at school and his wife possibly working, has acquired residence after five years, and all those circumstances are just as important after three years as they are after seven years.

What is so mysterious about reaching seven years with, as the noble Earl said, more ties? The ties are not the pals that one has made in the pub between years three and seven. They are the family commitments, the family settlement, in this country which will be as embedded—if that is the right word—at three years as at seven. I do not follow the argument of the noble Earl about there being so much more need for consideration in these circumstances at seven years than at three.

Earl Ferrers

My Lords, if I may have the permission of the House to reply to the noble Baroness, I would say this. She seems momentarily to have forgotten that we dealing with people who have broken the law. In the case to which she is referring—they have been here for three years having broken the law. We are saying that when their case comes up for appeal it should be only the facts that should be considered. On the other hand, if persons have been here for seven years, having broken the law all that time—and I shall continue to use that expression, if I may graciously rub it in to the noble Lord, Lord Mishcon, who makes the assertion that we are being most harsh about this—and then it is found that they are overstayers, they can have both the compassionate circumstances and the facts considered at appeal.

The noble Baroness asked why one should have made more ties when one has been here for seven years than for three. I find that a rather astonishing question. It is fairly obvious that if one is married the chances that one will have more children after seven years than after three are considerable. The chances that one will have compassionate circumstances after seven years are more likely than after three. Therefore we say that it is right after seven years that one should have those circumstances taken into account. But until then only the facts should be taken into account at the stage of appeal. I reiterate that before the deportation order is signed compassionate circumstances are taken into account even before seven years.

5.23 p.m.

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 151.

DIVISION NO. 3
CONTENTS
Airedale, L.	Llewelyn Davies of Hastoe, B
Amherst, E.	Lloyd of Hampstead, L.
Ardwick, L.	Lloyd of Kilgerran, L.
Aylestone, L.	Lockwood, B.
Basnett, L.	Lovell-Davis, L.
Boston of Faversham, L.	McNair, L. [Teller.]
Bottomley, L.	Mason of Barnsley, L.
Brooks of Tremorfa, L.	Mishcon, L.
Caradon, L.	Molloy, L.
Carmichael of Kelvingrove, L.	Mulley, L.
Carter, L.	Nicol, B.
Cocks of Hartcliffe, L.	Oram, L.
Davies of Penrhys, L.	Parry, L.
Dean of Beswick, L.	Pitt of Hampstead, L.
Donaldson of Kingsbridge, L.	Ponsonby of Shulbrede, L. [Teller.]
Dormand of Easington, L.
Elwyn-Jones, L.	Prys-Davies, L.
Ennals, L.	Rea, L.
Falkender, B.	Seear, B.
Fisher of Rednal, B.	Serota, B.
Foot, L.	Shackleton, L.
Gallacher, L.	Stedman, B.
Galpern, L.	Stewart of Fulham, L.
Graham of Edmonton, L.	Stoddart of Swindon, L.
Gregson, L.	Taylor of Blackburn, L.
Grey, E.	Taylor of Gryfe, L.
Grimond, L.	Tordoff, L.
Hampton, L.	Underhill, L.
Hanworth, V.	Wallace of Coslany, L.
Harris of Greenwich, L.	Walston, L.
Hunt, L.	Wells-Pestell, L.
Hutchinson of Lullington, L.	Whaddon, L.
Jacques, L.	Wigoder, L.
Jay, L.	Willis, L.
Jeger, B.	Winchilsea and Nottingham, E.
John-Mackie, L.
Kilmarnock, L.	Winstanley, L.

NOT-CONTENTS
Ailesbury, M.	Davidson, V. [Teller.]
Aldington, L.	Deedes, L.
Alexander of Tunis, E.	Denham, L. [Teller.]
Allerton, L.	Derwent, L.
Ampthill, L.	Dundee, E.
Arran, E.	Elibank, L.
Auckland, L.	Ellenborough, L.
Balfour, E.	Elliott of Morpeth, L.
Bauer, L.	Faithfull, B.
Beaverbrook, L.	Ferrers, E.
Beloff, L.	Fisher, L.
Belstead, L.	Fortescue, E.
Bessborough, E.	Fraser of Kilmorack, L.
Blake, L.	Gainford, L.
Blyth, L.	Gardner of Parkes, B.
Boyd-Carpenter, L.	Gibson-Watt, L.
Brabazon of Tara, L.	Glenarthur, L.
Brookeborough, V.	Grafton, D.
Brougham and Vaux, L.	Gray of Contin, L.
Broxbourne, L.	Greenway, L.
Butterworth, L.	Gridley, L.
Caithness, E.	Grimston of Westbury, L.
Cameron of Lochbroom, L.	Haddington, E.
Campbell of Alloway, L.	Hailsham of Saint Marylebone, L.
Carnegy of Lour, B.
Carnock, L.	Halsbury, E.
Chelwood, L.	Hardinge of Penshurst, L.
Coleraine, L.	Harmar-Nicholls, L.
Colnbrook, L.	Harvington, L.
Colwyn, L.	Havers, L.
Constantine of Stanmore, L.	Henderson of Brompton, L.
Cork and Orrery, E.	Hertford, M.
Cottesloe, L.	Hesketh, L.
Craigavon, V.	Hives, L.
Cranbrook, E.	Holderness, L.
Crickhowell, L.	Hooper, B.
Cullen of Ashbourne, L.	Hunter of Newington, L.
Daventry, V.	Huntly, M.

Hylton-Foster, B.	Portsmouth, E.
Jenkin of Roding, L.	Rees, L.
Joseph, L.	Renton, L.
Kaberry of Adel, L.	Renwick, L.
Kimball, L.	Ridley, V.
Kinnaird, L.	Rochdale, V.
Kinnoull, E.	Romney, E.
Kitchener, E.	Rugby, L.
Lauderdale, E.	St. Aldwyn, E.
Lawrence, L.	St. Davids, V.
Layton, L.	St. John of Fawsley, L.
Long, V.	Saltoun of Abernethy, Ly.
Lucas of Chilworth, L.	Sanderson of Bowden, L.
Lyell, L.	Selborne, E.
McFadzean, L.	Sempill, Ly.
Mackay of Clashfern, L.	Shannon, E.
Macleod of Borve, B.	Sharples, B.
Malmesbury, E.	Skelmersdale, L.
Margadale, L.	Somers, L.
Marley, L.	Stodart of Leaston, L.
Merrivale, L.	Strange, B.
Mersey, V.	Terrington, L.
Middleton, L.	Teynham, L.
Milverton, L.	Thomas of Gwydir, L.
Monk Bretton, L.	Thomas of Swynnerton, L.
Moran, L.	Trafford, L.
Morris, L.	Trumpington, B.
Mottistone, L.	Tryon, L.
Munster, E.	Vaux of Harrowden, L.
Nelson, E.	Waldegrave, E.
Newall, L.	Ward of Witley, V.
Nugent of Guildford, L.	Weir, V.
Orkney, E.	Whitelaw, V.
Orr-Ewing, L.	Wyatt of Weeford, L.
Oxfuird, V.	Wynford, L.
Pender, L.	Yarborough, E.
Penrhyn, L.	Young, B.
Peyton of Yeovil, L.	Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.30 p.m.

[Amendment No. 7 not moved.]

Lord Mishcon moved Amendment No. 8: After Clause 4, insert the following new clause:

("Asylum Review Board.

. The Secretary of State shall by Order establish an Asylum Review Board to examine all decisions to refuse applications for asylum made by persons who claim to have a well-founded fear that the country to which they are to be removed will return them to a country where they have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Asylum Review Board shall have power to direct that a person shall be granted a right of appeal to an adjudicator if the Board finds the person's fear of being returned to a country where he fears persecution reasonable").

The noble Lord said: My Lords, when the grouping of amendments took place at the very beginning, your Lordships were very patient while you listened to me appealing for the Asylum Review Board. Noble Lords would not be as patient if I repeated those submissions now in support of this amendment. Having already spoken to the amendment earlier, the courteous thing for me to do is to ask for the view of the House.

Earl Ferrers

My Lords, with equal brevity as we have discussed the question before, even though it was discussed fairly shortly, I hope that your Lordships will not agree with this amendment.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 134.

DIVISION NO. 4
CONTENTS
Airedale, L.	Lockwood, B.
Amherst, E.	Longford, E.
Aylestone, L.	Lovell-Davis, L.
Basnett, L.	McNair, L.
Boston of Faversham, L.	Mason of Barnsley, L.
Brooks of Tremorfa, L.	Mishcon, L.
Caradon, L.	Molloy, L.
Carmichael of Kelvingrove, L.	Mulley, L.
Carter, L.	Nicol, B.
Cledwyn of Penrhos, L.	Oram, L.
Cocks of Hartcliffe, L.	Parry, L.
Davies of Penrhys, L.	Peston, L.
Dean of Beswick, L.	Pitt of Hampstead, L.
Dormand of Easington, L.	Ponsonby of Shulbrede, L. [Teller.]
Elwyn-Jones, L.
Falkender, B.	Prys-Davies, L.
Fisher of Rednal, B.	Rea, L.
Gallacher, L.	Ritchie of Dundee, L.
Galpern, L.	Serota, B.
Graham of Edmonton, L. [Teller.]	Shackleton, L.
	Stedman, B.
Gregson, L.	Stewart of Fulham, L.
Grey, E.	Stoddart of Swindon, L.
Grimond, L.	Taylor of Blackburn, L.
Hampton, L.	Taylor of Gryfe, L.
Hanworth, V.	Taylor of Mansfield, L.
Harris of Greenwich, L.	Tordoff, L.
Hunt, L.	Underhill, L.
Irving of Dartford, L.	Wallace of Coslany, L.
Jacques, L.	Walston, L.
Jay, L.	Wells-Pestell, L.
Jeger, B.	Wigoder, L.
John-Mackie, L.	Willis, L.
Kilmarnock, L.	Winchilsea and Nottingham, E.
Llewelyn Davies of Hastoe, B.
Lloyd of Kilgerran, L.	Winstanley, L.

NOT-CONTENTS
Alexander of Tunis, E.	Denham, L. [Teller.]
Allerton, L.	Derwent, L.
Ampthill, L.	Dulverton, L.
Arran, E.	Elibank, L.
Balfour, E.	Ellenborough, L.
Bauer, L.	Faithfull, B.
Beaverbrook, L.	Fanshawe of Richmond, L.
Beloff, L.	Ferrers, E.
Belstead, L.	Fisher, L.
Bessborough, E.	Fortescue, E.
Blake, L.	Fraser of Kilmorack, L.
Blyth, L.	Gainford, L.
Boyd-Carpenter, L.	Gibson-Watt, L.
Brabazon of Tara, L.	Grafton, D.
Brookeborough, V.	Gray of Contin, L.
Brougham and Vaux, L.	Greenway, L.
Butterworth, L.	Gridley, L.
Cameron of Lochbroom, L.	Grimston of Westbury, L.
Campbell of Alloway, L.	Haddington, E.
Carnegy of Lour, B.	Hailsham of Saint Marylebone, L.
Carnock, L.
Chelwood, L.	Hardinge of Penshurst, L.
Coleraine, L.	Harmar-Nicholls, L.
Colnbrook, L.	Harvington, L.
Colwyn, L.	Havers, L.
Constantine of Stanmore, L.	Hertford, M.
Cork and Orrery, E.	Hives, L.
Cottesloe, L.	Holderness, L.
Craigavon, V.	Hooper, B.
Cranbrook, E.	Hunter of Newington, L.
Crickhowell, L.	Huntly, M.
Cullen of Ashbourne, L.	Hylton-Foster, B.
Daventry, V.	Jenkin of Roding, L.
Deedes, L.	Joseph, L.

Kaberry of Adel, L.	Renton, L.
Kimball, L.	Renwick, L.
Kinnaird, L.	Rochdale, V.
Kitchener, E.	Romney, E.
Layton, L.	Rugby, L.
Long, V. [Teller.]	St. Aldwyn, E.
Lucas of Chilworth, L.	St. Davids, V.
Lurgan, L.	St. John of Fawsley, L.
Lyell, L.	Saltoun of Abernethy, Ly.
McFadzean, L.	Sanderson of Bowden, L.
Mackay of Clashfern, L.	Selborne, E.
Macleod of Borve, B.	Sempill, Ly.
Malmesbury, E.	Shannon, E.
Margadale, L.	Sharples, B.
Marley, L.	Skelmersdale, L.
Merrivale, L.	Somers, L.
Mersey, V.	Stodart of Leaston, L.
Middleton, L.	Strange, B.
Milverton, L.	Terrington, L.
Monk Bretton, L.	Teynham, L.
Monson, L.	Thomas of Gwydir, L.
Morris, L.	Thomas of Swynnerton, L.
Mottistone, L.	Trafford, L.
Munster, E.	Trumpington, B.
Nelson, E.	Vaux of Harrowden, L.
Norfolk, D.	Waldegrave, E.
Nugent of Guildford, L.	Ward of Witley, V.
Orkney, E.	Whitelaw, V.
Orr-Ewing, L.	Wyatt of Weeford, L.
Oxfuird, V.	Wynford, L.
Pender, L.	Yarborough, E.
Penrhyn, L.	Young, B.
Peyton of Yeovil, L.	Zouche of Haryngworth, L
Portsmouth, E.

Resolved in the negative, and amendment disagreed to accordingly.

5.40 p.m.

Lord Mishcon: moved Amendment No. 9: Insert the following new clause:

("Adjudicator's power to make recommendations on compassionate grounds.

.After subsection (3) of section 19 of the principal Act there shall be inserted the following subsection— (3A) In any case in which an adjudicator is required by section 19(1)(b) above to dismiss an appeal he may recommend that on compassionate grounds the appellant be granted leave to enter or remain outside the immigration rules and for the purposes of this subsection shall be entitled to receive any evidence of facts or circumstances relevant to the making of a recommendation." ").

The noble Lord said: My Lords, I should like to recall an interesting debate which took place at Committee stage on an amendment which I had the privilege of moving. After all that the Minister had said about the room for compassion in dealing with cases before appeal, on appeal and sometimes after appeal, I endeavoured to put it into active consideration by inserting into the Bill a positive power to enable the adjudicator to consider such matters. I did so for reasons which I explained. I gave long quotations, which I do not intend to repeat tonight, from documents which stated that without any doubt some adjudicators thought that they had the power; some adjudicators thought that they ought to make recommendations if they had the power; some adjudicators thought that they should not make recommendations even though they had the power; and the chief adjudicator thought that it was not within the province of an adjudicator to make recommendations on compassionate grounds. In an attempt to achieve uniformity I moved my amendment.

The noble Lord, Lord Renton, corrected me; he was absolutely right to do so. He pointed out that, although I was addressing my remarks to compassionate matters, the word "compassion" was not contained in my amendment. Furthermore, he or the Minister pointed out that, as the amendment was worded, the adjudicator must listen to evidence, whether he wanted to or not, on matters which were being directed to him. In the course of the debate the waste of the time of the adjudicator, and so forth, was brought into play.

The Minister concluded by saying that the adjudicator, frequently makes a recommendation to the Home Secretary which says that a man has broken the law but that his compassionate circumstances are such that they ought to be considered. Therefore, even when a man has broken the law, the Home Secretary may still take into account these compassionate circumstances. I accept what the noble Lord, Lord Mishcon, wishes to do. I would hesitate to say that that ought to be written into the Bill because I think it is a practice which is followed at present." [Official Report, 20/3/88; col. 120.].

As a result of that debate I gathered that I must put my house in order. First, I must introduce the ground about which I was talking; namely, the compassionate ground. I have done so, and it appears in the amendment. It is the only basis upon which, according to the amendment, the adjudicator can make a recommendation. Secondly, I thought that I must make perfectly clear that the adjudicator was entitled to take such matters into account and to make a recommendation, and that it was not mandatory. I have done so and I have used the words "entitled to".

Having put my house in order, I look once again with a direct gaze and try to find a softness in the Minister's heart to which I have already paid tribute. I believe that he is having an unhappy time in relation to this Bill, having to say "no" so many times. He is presenting a steely front when anyone looking at him will know that that is not appropriate in the slightest.

Noble Lords

Hear, hear.

Lord Mishcon

My Lords, I rely upon the Minister's words when he states: I accept what the noble Lord, Lord Mishcon, wishes to do". At the Committee stage, I did so wish but the wording of my amendment did not permit it. However, I expressed to the Committee my wishes. The Minister went on to say: I would hesitate to say that that ought to be written into the Bill". The Minister does not hesitate as a rule and therefore there must be a cause for that hesitation because I think it is a practice which is followed at present". I rely upon the Minister. He was courteous as always in writing to me to explain that there were certain difficulties. After all, it is not the Home Office which governs the life of adjudicators; it is the noble and learned Lord the Lord Chancellor. The Minister said that he had brought to the attention of the Lord Chancellor's Department, through the officials of his own department, what was said in the debate.

Such a notification may or may not be useful. Before we leave the question of compassion—and, if I may respectfully say so, we have not shown very much this afternoon in the various votes of the House—I believe that your Lordships will wish to ensure that it is clearly stated. I limit my submission to saying that an adjudicator is entitled, if he wishes, to hear evidence on compassionate grounds and that he is entitled to make a recommendation, if he wishes, on compassionate grounds and on compassionate grounds alone. We do little harm by passing this amendment and, in my submission, we do a lot of good.

Lord Renton

My Lords, the noble Lord is extremely generous in acknowledging the help that I managed to give on a previous occasion. However, I must confess that I am not always right. It has just dawned on me that in regard to Amendment No. 4 I missed the point entirely and I apologise to your Lordships. However, this amendment is obviously an improvement on that the noble Lord moved previously. The only constructive suggestion I have to make on this occasion is that it would be even better if the word "such" were inserted in the last line after the word "of". However, that is a small point of detail.

I had an open mind about the merits of the matter and still have some difficulties which I expressed in Committee at cols. 118 and 119 of the Official Report. I do not intend to repeat them. However, there certainly is no great harm in the amendment.

Earl Ferrers

My Lords, I am sorry that the noble Lord, Lord Mishcon, should say that I put on a steely front. It is not a natural posture. It is merely that I have been unable to find myself in agreement with him. I think that he has been not merely wrong but misguided. For that reason I believe that the amendments he has tabled would not have improved the Bill. He was kind enough to quote what I said on the last occasion which was that I accepted what he wished to do and that I understood his wishes. He was also generous enough to quote my remark that I would hesitate to put it in the Bill. I said that a provision which would require adjudicators to consider the possibility of making recommendations would be very damaging.

During the debate in Committee I argued that a provision which would require adjudicators to consider the possibility of making recommendations would be very damaging. The noble Lord, Lord Mishcon, stressed that his intention was only to end the uncertainty—and he said that again today—which he believed exists in the minds of adjudicators about their powers. The noble Lord said that I told him to put his house in order. I cannot remember using quite such a stricture to the noble Lord, although the interpretation which he put on my words might have had that effect.

The present amendment now permits rather than requires adjudicators to consider making a recommendation which found a modest degree of sympathy with my noble friend Lord Renton. I have looked at this matter very carefully and even such a superficially harmless amendment as this would contain quite considerable complications.

As I tried to make clear during our debate in Committee—and the noble Lord, Lord Mishcon, agreed to this—it is already open to an adjudicator to recommend, when dismissing an appeal that leave to enter or to remain be granted outside the rules. Although the Home Secretary is not bound by such informal recommendations, they are given considerable weight and the normal approach is to accept them unless there is something unreasonable or inconsistent in doing so.

Even though this new clause now appears to do no more than confirm in statute what is already the informal position, the reality is that it would go very much further. In practice, this new clause would still require adjudicators to consider making recommendations in every appeal they hear, with all the attendant dangers to which I referred in our previous debate. It would have this effect, because every adjudicator would know that if, in the circumstances of any individual case, he decided not to hear evidence about compassionate circumstances or not to make a recommendation, it would be open to the appellant to go to the courts and claim that the adjudicator had acted unreasonably. And because the provision permitting the adjudicator to make a recommendation would be there on the face of the law, the court might have to conclude that it had been Parliament's intention that he should always consider evidence which might be relevant to the making of a recommendation. The court might then find that the adjudicator had not done his job.

So the only way in which the adjudicator would protect himself from this risk would be for him to allow an appellant corning before him to argue absolutely any case he liked, however irrelevant it was to the real issue at stake in the case, and however much it prolonged the hearing of the appeal. The result would be to introduce enormous delays into the appeals system—not just deportation appeals but all appeals—which would make the appeals system almost grind to a halt. There are 15,000 appeals per year which would, under this amendment, require adjudicators to consider any factors not directly relevant to the decision under appeal.

This amendment would destroy the effect of Clause 4 of the Bill. It would do this because, even in deportation appeals to which Clause 4 applies, adjudicators would feel obliged to consider the possibility of making a recommendation on compassionate grounds rather than risk having their decisions overturned by the courts. This is directly contrary to what we are trying to achieve in Clause 4, which is to enable appeals to consider only the facts of the case.

I hope that the reasons why the Government remain unable to accept even the revised amendment now proposed will be clear. I am in absolutely no doubt but that to take such a step as this would be enormously damaging. After all, it is for adjudicators to interpret the law and it is not right for us to tell them how to interpret the law.

That said, I hope that any real uncertainty which may exist in the minds of adjudicators about their ability to make informal recommendations—and I repeat that they have that ability—will have been dispelled by the debates which have taken place in your Lordships' House. In response to the concern which the noble Lord, Lord Mishcon, voiced on this matter during the Committee stage, we have been in touch with the Lord Chancellor's Department, who are responsible for the appellate authorities, to draw attention to what was said at that time. I feel sure that adjudicators will themselves have followed with interest the debates which have taken place on this Bill. They will, I am sure, as a result be in no further doubt about their scope for making informal recommendations.

For these reasons, and not because I am steely, I suggest that your Lordships do not accept this amendment. Did I hear the noble Lord, Lord Mishcon, ask a question? I thought the noble Lord asked, "What do you think?". I agree.

Lord Mishcon

My Lords, I am delighted to know that the noble Earl has at last agreed with me. That has not been very common in the course of either the Committee stage or Report stage of this Bill. I wish I understood the argument.

When I spoke to the Committee about the injustice of the inconsistency here, with some adjudicators deciding that they would hear pleas on the grounds of compassion and others deciding that they would not, the Minister gave a very different answer from the one that he gave today. He said that we all know that there are judges who are known as harsh judges and judges who are known as merciful judges—I am paraphrasing and not quoting his exact words. Do we really want the lives of people to be determined by whether they appear before a harsh adjudicator or someone who is not harsh and who decides that he will listen to pleas of this kind? Surely there must be consistency.

As the noble Lord, Lord Renton, very fairly said—and I appreciated his remarks—there would be little harm in agreeing to this amendment. I should have thought that the Government would want to see that matters of this kind are made abundantly clear on the face of the Bill. In the face of this complete resistance to matters of mercy and compassion, I regret that I have no alternative and again I must ask for the opinion of the House to be on record.

5.57 p.m.

On Question, Whether the said amendment (No. 9) shall be agreed to?

Their Lordships divided: Contents, 71; Not-Contents, 124.

DIVISION NO. 5
CONTENTS
Airedale, L.	Davies of Penrhys, L.
Amherst, E.	Dean of Beswick, L.
Ardwick, L.	Dormand of Easington, L
Aylestone, L.	Elwyn-Jones, L.
Basnett, L.	Ennals, L.
Boston of Faversham, L.	Falkender, B.
Bottomley, L.	Fisher of Rednal, B.
Brooks of Tremorfa, L.	Gallacher, L.
Caradon, L.	Galpern, L.
Carmichael of Kelvingrove, L.	Glenamara, L.
Carter, L. [Teller.]	Graham of Edmonton, L.
Cledwyn of Penrhos, L.	Grimond, L.
Cocks of Hartcliffe, L.	Hampton, L.

Hanworth, V.	Pitt of Hampstead, L.
Harris of Greenwich, L.	Ponsonby of Shulbrede, L.
Hunt, L.	Prys-Davies, L.
Irving of Dartford, L.	Rea, L.
Jacques, L.	Ritchie of Dundee, L.
Jay, L.	Russell of Liverpool, L.
Jeger, B.	Serota, B.
John-Mackie, L.	Shackleton, L.
Kilmarnock, L.	Stedman, B.
Llewelyn-Davies of Hastoe, B.	Stewart of Fulham, L.
Lloyd of Kilgerran, L.	Stoddart of Swindon, L.
Lockwood, B.	Taylor of Blackburn, L.
Lovell-Davis, L.	Taylor of Gryfe, L.
McGregor of Durris, L.	Tordoff, L. [Teller.]
Mason of Barnsley, L.	Underhill, L.
Mishcon, L.	Wallace of Coslany, L.
Molloy, L.	Walston, L.
Mulley, L.	Wells-Pestell, L.
Nicol, B.	Whaddon, L.
Northfield, L.	Wigoder, L.
Ogmore, L.	Willis, L.
Parry, L.	Winchilsea and Nottingham, E.
Peston, L.

NOT-CONTENTS
Alexander of Tunis, E.	Hardinge of Penhurst, L.
Allerton, L.	Harmar-Nicholls, L.
Ampthill, L.	Havers, L.
Arran, E.	Hertford, M.
Balfour, E.	Hesketh, L.
Bauer, L.	Hives, L.
Beaverbrook, L.	Holderness, L.
Belhaven and Stenton, L.	Hooper, B.
Beloff, L.	Hunter of Newington, L.
Belstead, L.	Hylton-Foster, B.
Bessborough, E.	Jenkin of Roding, L.
Blake, L.	Kenilworth, L.
Blyth, L.	Kimball, L.
Boyd-Carpenter, L.	Kinnaird, L.
Brabazon of Tara, L.	Kitchener, E.
Brookeborough, V.	Lauderdale, E.
Brougham and Vaux, L.	Layton, L.
Butterworth, L.	Lindsey and Abingdon, E.
Caithness, E.	Long, V. [Teller.]
Cameron of Lochbroom, L.	Lucas of Chilworth, L.
Campbell of Alloway, L.	Lurgan, L.
Campbell of Croy, L.	Lyell, L.
Carnegy of Lour, B.	McFadzean, L.
Carnock, L.	Malmesbury, E.
Chelwood, L.	Mancroft, L.
Coleraine, L.	Margadale, L.
Colnbrook, L.	Marley, L.
Colwyn, L.	Marshall of Leeds, L.
Constantine of Stanmore, L.	Mersey, V.
Cork and Orrery, E.	Middleton, L.
Cottesloe, L.	Milverton, L.
Craigavon, V.	Monk Bretton, L.
Cranbrook, E.	Morris, L.
Crickhowell, L.	Mottistone, L.
Daventry, V.	Munster, E.
Deedes, L.	Nelson, E.
Denham, L. [Teller.]	Norfolk, D.
Derwent, L.	Nugent of Guildford, L.
Dundee, E.	Orkney, E.
Elliott of Morpeth, L.	Oxfuird, V.
Erroll, E.	Pender, L.
Fanshawe of Richmond, L.	Peyton of Yeovil, L.
Ferrers, E.	Rees, L.
Fisher, L.	Renwick, L.
Fortescue, E.	Rochdale, V.
Fraser of Kilmorack, L.	Rugby, L.
Gainford, L.	St. Aldwyn, E.
Gibson-Watt, L.	St. Davids, V.
Gray of Contin, L.	Saltoun of Abernethy, Ly.
Greenway, L.	Sanderson of Bowden, L.
Gridley, L.	Selborne, E.
Grimston of Westbury, L.	Shannon, E.
Haddington, E.	Sharples, B.
Hailsham of Saint Marylebone, L.	Skelmersdale, L.
	Somers, L.

Stodart of Leaston, L.	Vaux of Harrowden, L
Strange, B.	Ward of Witley, V.
Terrington, L.	Weir, V.
Thomas of Gwydir, L.	Wyatt of Weeford, L.
Thomas of Swynnerton, L.	Wynford, L.
Trafford, L.	Yarborough, E.
Trumpington, B.	Young, B.
Tryon, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.5 p.m.

Clause 5 [Knowingly overstaying limited leave]:

Lord Mishcon moved Amendment No. 10: Page 3, line 37, at end insert ("but a person shall not be prosecuted under that provision more than once in respect of the same limited leave.").

The noble Lord said: My Lords, I think that a thin chink of light is about to enter the Chamber and since it is so rare I want your Lordships to enjoy it. I have reason to believe that an amendment moved from these Benches is possibly going to be accepted. In Committee, when dealing with the question of the continuity of an offence of staying in this country without leave, I ventured to point out that there could be doubt as to whether, having been acquitted of a charge of having committed that offence, there could be a fresh prosecution since the offence was a continuing one in spite of the acquittal. The noble Lord, Lord Renton, with his usual modest show of considerable learning, pointed out to the Committee that that would be very objectionable. He asked whether the well-known maxim of autrefois acquit applied.

The noble Earl was gracious enough to say that he would consider the point. He wrote to me and intimated that in order that the point may be put beyond doubt an amendment would be accepted. He also suggested wording which might be acceptable to the Government. Obediently, I tabled an amendment. I now look for the slight chink of light to enter the Chamber. I beg to move.

Lord Renton

My Lords, being totally mystified I do not propose to address your Lordships on this matter.

Earl Ferrers

My Lords, my noble friend would not be mystified if only he saw the chink of light, because then he would be able to see what was going to happen. The noble Lord, Lord Mishcon, has accused me of being steely and of turning down every single amendment. I have been obliged to do that but I am not sure whether "turning down" is the right expression because it is for your Lordships to decide; I can only advise how it is most appropriate to vote.

The noble Lord introduced this amendment and it is with some hesitation that I give him cause for concern. I should not like him to be disappointed, but there are times when one has to tell him what one believes is right. However, I am bound to tell him that I believe this amendment is right and I have the greatest of pleasure in advising your Lordships to accept it. If noble Lords wish to go through the Division Lobbies, I shall have the pleasure of going through with the noble Lord.

The intention behind the amendment is to make clear that a prosecution may only be brought once in respect of overstaying in any one period of leave. It is not the intention of the Government that those who overstay their limited leave should face more than one prosecution for the same offence. This amendment makes the position clear and removes any doubts that there might be about the effect of Clause 5.

Lord Mishcon

My Lords, your Lordships will never know the extent of the temptation which the noble Earl has pointed in this direction. I was so tempted to call a Division in order to see him walk with me, but I shall resist the temptation in view of the seriousness of the Bill and the time. I am most grateful to the noble Earl and I hope that his graciousness will be repeated in the course of this evening.

On Question, amendment agreed to.

[Amendments Nos. 11 and 12 not moved.]

Clause 6 [Persons exercising Community rights and nationals of member States]:

Lord Mishcon moved Amendment No. 13:

Page 4, line 11, at end insert— ("(4) Immigration rules made under this or any previous Act shall be so framed that no spouse seeking to join a British citizen settled in the United Kingdom shall be subjected to more onerous requirements than those imposed in this section on spouses of nationals of EEC member states.").

The noble Lord said: My Lords, at the Committee stage we dealt with an amendment which discussed the position of someone who was settled in this country being in a worse position than someone who was a national of an EC member state. A specific example was given to the Committee of an EC national with a foreign spouse being able to come to this country and reside and work here, whereas somebody settled in this country would have no such right unless various conditions were fulfilled, including the supply of a residence, the means to maintain and matters of that kind. None of those matters would have to be dealt with by a national of an EC member state.

This point was answered on behalf of the Government and indeed by other noble Lords by casting doubt upon the parallel of somebody settled in this country and a national of an EC country. It was mentioned with some relevance that we were parties to a treaty, that this had mutuality in regard to the countries of the EC and that therefore the argument was not one that necessarily deserved to win. In this amendment I am talking not about someone who is settled here but somebody who is not only settled here but is a British citizen.

I wonder whether your Lordships are aware that, under our present immigration laws, if any British citizen settled here decides to marry a foreign spouse all the conditions that I have just mentioned—satisfaction as to residence, maintenance and so on—have to be gone through as well as the test of whether it was a genuine marriage and the marriage took place for the purposes that marriage should take place or whether it was merely a deception in order to gain the right of immigration for the spouse. There is no such requirement for a citizen of any other EC country.

All that this amendment calls for is the same treatment for those who are British citizens and are settled here as is accorded to nationals of EC member states. If we fail to put this provision into the Bill we are saying that British citizens settled here have no right to bring spouses into this country unless conditions are fulfilled, whereas a national of an EC member state is in a far superior position having not to fulfil those conditions at all. I beg to move.

6.15 p.m.

Earl Ferrers

My Lords, during the Committee stage of the Bill the House debated an amendment which sought to ensure that both the spouses and the family members of anyone settled here—whether or not a British citizen—could be admitted as readily as the family members of European Community nationals exercising their rights under the Treaty of Rome. The present amendment is more narrowly drawn. It now concerns only the spouses of British citizens.

I sought to explain during the Committee stage that our obligations to EC nationals stem from our membership of the Community. Family members of EC nationals coming here to work have a right to come here under the Treaty of Rome. But this is a reciprocal right. British citizens going to work in other EC countries have the same rights to take their families with them. There are no such reciprocal arrangements with all the other countries around the world. This is an obligation which we freely accepted when we joined the EC. The whole philosophy of the EC is that there should be free movement between member states.

I said at Committee stage—and I repeat it again—that to try to equate our obligations under the Treaty of Rome with our immigration control over people coming to our country from all over the world is trying to equate two things which are totally different. I said that it was like saying, "Which do you prefer; Piccadilly Circus or Tuesday afternoon?" They are simply not comparable. I really do think that noble Lords are running down the wrong track when trying to draw a similarity between these two totally different situations.

The real point which is being argued is quite simply that the spouses of British citizens should automatically be allowed to settle in this country without having to satisfy any tests first. It does not take a great deal of thought to realise that this superficially attractive notion contains some flaws.

At present, the general rule is that anyone wishing to settle in this country as the spouse of someone who is already settled here has to meet certain tests. These tests are designed to ensure, first, that marriage is not abused as a means of immigration to this country; and, secondly, that the arrival of people from overseas who come to join family members who are settled here should not result in a drain on public funds. Those are surely reasonable and perfectly respectable aims. But if we say that anyone who marries a British citizen is to be exempt from the requirements of the rules, those who would abuse marriage for immigration reasons would then know that they would only have to go through a valid marriage ceremony with a British citizen in order to be sure of being permitted to settle here. Such a step would be an open invitation to people to contract marriages of convenience purely for immigration reasons, knowing that there would be nothing that we could do about it. This is not a spurious theory. It actually happens.

Of course it is right for families to be united. The immigration rules make it perfectly possible for people who are settled here to bring their spouses to join them. But there is no good reason why we should let people abuse marriage in order to come here; nor is it fair to expect the taxpayer to support husbands and wives who wish to be united in this country, especially when, as happens in many cases, they have themselves chosen to spend a number of years apart.

If somene has come here and settled in this country and then wishes to bring his or her spouse here as well, the Government think it perfectly reasonable to expect that couple to support themselves and not to become a burden on the public purse. The amendment would make it impossible to prevent that. I hope that the noble Lord, Lord Mishcon, will see that and realise in the wisdom and generosity of his mind that it would be better not to move the amendment.

Lord Mishcon

My Lords, in the course of his remarks the noble Earl likened the parallel of a British citizen and a national of an EC member state to comparing Piccadilly Circus with a Tuesday afternoon. I invite him, in all seriousness, to go to Piccadilly Circus any Tuesday afternoon that he chooses and talk to the British citizens who pass through that place. I suggest that he tells them that Her Majesty's Government, and indeed the United Kingdom parliament, have decided that if any British citizen cares to marry a Yugoslav wife, before that wife can enter this country and settle here with him, he will have to prove that such a marriage was genuine. Furthermore, he will have to prove not only that the marriage took place for the purpose of love and affection, and not for the purpose of immigration, but also that he can, and will, maintain her in a residence which is suitable to accommodate both of them.

Moreover, in Piccadilly Circus on that Tuesday afternoon, the Minister must tell that citizen that of course those restrictions do not apply to the French, the Spanish, or the Greek who can marry anyone they like. They can come to this country, abide here and not have to prove in any way why the marriage took place. Similarly, they need not show in any way the duty to maintain, or that there is a suitable residence to accommodate them. I invite the Minister to inform the citizens of this country of that situation and to let them know how completely absurd our immigration laws are on that matter.

All I am asking is that the present amendment—as against that which was moved on the previous occasion—should be restricted to the British citizen; that is, the British citizen who is settled in this country, and I restrict it to a spouse. If the amendment is not put to the House so that the nation can see those who are voting for it and those who are voting against it, I would consider my duty not done in regard to the Bill. Therefore I must test the opinion of the House.

6.22 p.m.

On Question, Whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 122.

DIVISION NO. 6
CONTENTS
Airedale, L.	Lockwood, B.
Amherst, E.	Lovell-Davis, L.
Ardwick, L.	McGregor of Durris, L.
Aylestone, L.	McNair, L.
Basnett, L.	Mason of Barnsley, L.
Bottomley, L.	Mishcon, L.
Brooks of Tremorfa, L.	Molloy, L.
Caradon, L.	Mountevans, L.
Carmichael of Kelvingrove, L.	Mulley, L.
Carter, L.	Nicol, B.
Cledwyn of Penrhos, L.	Northfield, L.
Cocks of Hartcliffe, L.	Ogmore, L.
Davies of Penrhys, L.	Parry, L.
Dean of Beswick, L.	Peston, L.
Dormand of Easington, L.	Pitt of Hampstead, L.
Elwyn-Jones, L.	Ponsonby of Shulbrede, L. [Teller.]
Ennals, L.
Falkender, B.	Prys-Davies, L.
Fisher of Rednal, B.	Ritchie of Dundee, L.
Gallacher, L.	Seear, B.
Galpern, L.	Serota, B.
Graham of Edmonton, L.	Shackleton, L.
Gregson, L.	Stedman, B.
Grey, E.	Stewart of Fulham, L.
Grimond, L.	Stoddart of Swindon, L.
Hampton, L.	Taylor of Blackburn, L.
Harris of Greenwich, L.	Taylor of Gryfe, L.
Hunt, L.	Taylor of Mansfield, L.
Irving of Dartford, L.	Tordoff, L.
Jay, L.	Underhill, L.
Jeger, B.	Wallace of Coslany, L.
Jenkins of Hillhead, L.	Walston, L.
John-Mackie, L.	Whaddon, L.
Kagan, L.	Wigoder, L.
Kilmarnock, L.	Willis, L.
Llewelyn Davies of Hastoe, B.	Winchilsea and Nottingham, E.
Lloyd of Kilgerran, L.

NOT-CONTENTS
Alexander of Tunis, E.	Carnegy of Lour, B.
Allerton, L.	Carnock, L.
Arran, E.	Chelwood, L.
Balfour, E.	Colnbrook, L.
Bauer, L.	Colwyn, L.
Beaverbrook, L.	Constantine of Stanmore, L.
Belhaven and Stenton, L.	Cork and Orrery, E.
Beloff, L.	Cottesloe, L.
Belstead, L.	Craigavon, V.
Bessborough, E.	Cranbrook, E.
Blake, L.	Crickhowell, L.
Boardman, L.	Daventry, V.
Boyd-Carpenter, L.	Deedes, L.
Brabazon of Tara, L.	Denham, L.
Brookeborough, V.	Dundee, E.
Brougham and Vaux, L.	Elliott of Morpeth, L.
Butterworth, L.	Erroll, E.
Caithness, E.	Fanshawe of Richmond, L.
Cameron of Lochbroom, L.	Ferrers, E.
Campbell of Alloway, L.	Fisher, L.
Campbell of Croy, L.	Fortescue, E.

Gainford, L.	Monk Bretton, L.
Gibson-Watt, L.	Morris, L.
Grafton, D.	Mottistone, L.
Gray of Contin, L.	Moyne, L.
Greenway, L.	Munster, E.
Gridley, L.	Nelson, E.
Grimston of Westbury, L.	Norfolk, D.
Haddington, E.	Nugent of Guildford, L.
Hailsham of Saint Marylebone, L.	Orkney, E.
	Oxfuird, V.
Hardinge of Penhurst, L.	Pender, L.
Harmar-Nicholls, L.	Peyton of Yeovil, L.
Havers, L.	Rees, L.
Hesketh, L. [Teller.]	Renton, L.
Hives, L.	Rochdale, V.
Hooper, B.	St. Davids, V.
Hunter of Newington, L.	Salisbury, M.
Hylton-Foster, B.	Saltoun of Abernethy, Ly.
Jenkin of Roding, L.	Sanderson of Bowden, L.
Kaberry of Adel, L.	Selborne, E.
Kenilworth, L.	Shannon, E.
Kimball, L.	Sharples, B.
Kinloss, Ly.	Skelmersdale, L.
Kinnaird, L.	Stodart of Leaston, L.
Kitchener, E.	Teviot, L.
Layton, L.	Teynham, L.
Leathers, V.	Thomas of Gwydir, L.
Lindsey and Abingdon, E.	Thomas of Swynnerton, L
Long, V. [Teller.]	Trafford, L.
Lucas of Chilworth, L.	Trumpington, B.
Lurgan, L.	Tryon, L.
Lyell, L.	Vaux of Harrowden, L.
McFadzean, L.	Vinson, L.
Malmesbury, E.	Waldegrave, E.
Mancroft, L.	Ward of Witley, V.
Margadale, L.	Weir, V.
Marley, L.	Wyatt of Weeford, L.
Marshall of Leeds, L.	Wynford, L.
Mersey, V.	Yarborough, E.
Milverton, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.30 p.m.

Clause 8 [Charges]:

Lord Elwyn-Jones moved Amendment No. 14: Page 5, line 3, after ("prescribed") insert ("(save that no fees shall be so prescribed in respect of children under the age of 18)").

The noble and learned Lord said: My Lords, Clause 8 provides that: The Secretary of State may with the consent of the Treasury make regulations prescribing fees to be paid, at such times as may be prescribed, in connection with any application for indefinite leave to remain in the United Kingdom or the grant of such leave; and no such leave shall be granted unless any fee payable in connection with the grant of that leave has been paid". Your Lordships may think that that is a powerful sanction. Subsection (2) provides: Regulations under subsection (1) above may make different provision for different cases, including provision for cases in which no fee is to be paid". Then perhaps I may complete the story so far as it relates to the amendments: the power to make regulations under subsection (1) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament".

Those provisions can have serious consequences for the people concerned. They involve the payment of fees, the nature and amount of which are not indicated. We have to wait for regulations for that. In the case of a family with a number of children, it may be an extremely oppressive provision. That is why we have introduced an amendment to diminish the risk.

Amendment No. 14 therefore provides that no fees shall be prescribed in respect of children under the age of 18. That would seem to be a piece of simple justice, and it would be surprising if it were resisted. However, I had better not make any comment about that because so much has happened which has been surprising and has not been resisted. Amendment No. 14 proposes that children under 18 should not be subject to fees, the non-payment of which, as I have indicated, could have such grave results. There is no provision to waive payment in deserving cases, which would seem to be a reasonable requirement and which your Lordships may believe should be provided for.

The last of the batch of three amendments proposes that the regulations which the Secretary of State is empowered to make shall be made by the negative procedure, exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House.

In view of the consequences that would flow from non-payment, as Clause 8(1) shows, it is a serious matter. Your Lordships may think that it is one which calls for a more stringent form of parliamentary control than is provided by the negative resolution proceeding. We have introduced the third amendment in this series so that far more scrutiny can be given by Parliament than is provided by the negative resolution procedure. That is why we propose that the regulations to be passed by the Secretary of State fixing the amount of fees, when they should be charged and whether they shall be varied as between one payee and another, which joined together point to matters of substance, merit proper and full scrutiny in Parliament. I beg to move.

Lord Pitt of Hampstead

My Lords, I support the amendments. I invite the Government—I think that we did so in Committee and I hope that they have given some thought to it in the interval—to think about the consequences of forcing each member of a large family to pay the fee. We will often be talking about people on below average incomes and for them a large fee would be an onerous obligation.

By waiving the fee for those under 18 we should be making it less difficult—I put it no higher—for a united family to register for permanent residence. I gather that the purpose of the fee is to cover costs. It may well be necessary therefore to raise the fee payable in order to be able to exempt children. I regard that as a sensible way to deal with the matter. If we insisted on the same fee being paid for every adult and every child it would create a great deal of hardship. Therefore I hope that the Government will accept Amendment No. 14.

I should also like to reiterate what I said in Committee about the provisions contained in Amendment No. 15. I am certain, whether the Minister wishes to admit it or not, that if the Home Secretary had had the power to waive the fee with regard to nationality we should not have the problems that we are having with the chaps who fought in the Falklands and who do not wish to pay fees to register as citizens. I am certain that if we had had that power the Home Secretary would have waived the fee and we should not have heard anything about the matter. It is now going to the European Court of Human Rights. All sorts of nonsenses are happening as a consequence of the Home Secretary not having the power to waive the fee.

I hope that on this occasion the Home Secretary will take the power to waive the fee. We do not know what circumstances will arise where it may be necessary to do so. I recommend all three amendments because it is wise that the House should look at the regulations. The best way to do that is by affirmative resolution and not by the negative resolution procedure. I hope that the Government will accept all three amendments.

Earl Ferrers

My Lords, we are discussing Amendments Nos. 14, 15 and 16 together. They all relate to the system of prescribing fees. By Amendment No. 14 the noble and learned Lord wishes to have inserted into the Bill the fact that no fees should be prescribed in respect of children under the age of 18; and by Amendment No. 15 the Secretary of State should have the powr: to waive the payment of any prescribed fees in suitable deserving cases". In fact the powers in this Bill are sufficiently flexible to enable the Government to prescribe a nil fee or a reduced fee for minor children or to allow for concessions for more than one child of the same family group. We would also have sufficient power to prescribe reduced or nil fees for categories of what are described in the amendment as "suitable deserving cases". We are not of course empowered to grant waivers or reductions in individual cases.

I tried to explain at the Committee stage that we expect the standard fee for settlement to be in the region of £50 and that the normal procedure, if an applicant is in difficulty over paying the fee, would be to grant limited leave for him or her to remain in the United Kingdom. We do not propose to initiate deportation procedures on the sole ground that an applicant for settlement is unable to pay the fee for settlement.

Perhaps I could mention a fear which was expressed at some length in Committee by the noble Lord, Lord Bonham-Carter. He was concerned that Clause 8(1) will act as an obstacle to family unity. I should like to make clear that there are no powers in Clause 8(1) to charge fees for the grant of leave to enter this country. There is nothing in the Bill which will enable us to impose fees on those who are granted indefinite or limited leave to enter at the ports.

Clause 8(1) therefore imposes no new obstacles for those, whether they are minor children or adults, who enter this country to join their families. It deals only with those who are already here with conditions attached to their stay and who then seek indefinite leave to remain here. It is at that juncture when the fee is payable. I should add that the majority of minor children who come here to join their families are admitted to this country unconditionally. No question of fees will arise at all in their case. It is only in the case of those few children who are admitted with limited leave and who then seek to become fully settled here that the question of fees under Clause 8(1) will arise at all. It is hard in these circumstances to see how the powers in Clause 8 can be seen as making family reunification more difficult.

I think that the fears of the noble and learned Lord are somewhat unfounded. The Bill contains sufficient flexibility to achieve the results which he and others desire. Parliament can express a view on the content of the regulations under Clause 8(1) through the procedure which is proposed.

In Amendment No. 16 the noble and learned Lord seeks to change the procedure from the negative resolution to the affirmative resolution. I reemphasise that there are no powers in Clause 8 to require fees of those seeking to enter this country. The powers are confined to those who have entered the country with limited leave to remain here and who then seek settled status or indefinite leave to remain.

I made clear at the Committee stage the Government's view that the negative resolution procedure would provide a sufficient degree of parliamentary control in these cases. My noble friend Lord Mottistone agreed. I pointed out then that the precedent of the British Nationality Act 1981, where fees regulations are subject to the negative resolution procedure, is one which operated perfectly satisfactorily. It is worth pointing out that the immigration rules—the rules themselves—are subject to a parliamentary procedure which is broadly analogous to the negative resolution procedure in that they can be disapproved by either House although they do not require the formal approval of Parliament.

These arrangements which Parliament has approved in the case of the immigration rules, which after all have far greater force, are entirely appropriate, I would have thought in the case of the regulations made under Clause 8(1) which will do no more than prescribe fees for limited circumstances, and that is for settlement. I think that this amendment would introduce an unnecessary additional procedure in the making of regulations under Clause 8(1). I hope that the noble and learned Lord will appreciate that the granting of fees does not present so great a problem. Nor will it have nearly the effect which I think some noble Lords at Committee stage were concerned it might have. It would really be more appropriate to have the negative resolution procedure which after all still enables Parliament to have control.

Lord Elwyn-Jones

My Lords, I am not sure whether I gathered accurately the figure of £50 stated by the Minister. He tells me it is correct, and I am much obliged to him. That is quite a considerable sum for some people seeking to come to this country, particularly refugees or those in impoverished circumstances. I do not know whether the noble Earl can give an indication of what is contemplated as being the fee payable by a child at school. That we are not told about.

The matter is left very much in the air. And that is not satisfactory. There is written into Clause 8 the requirement that no leave shall be granted, in this admittedly limited class of applicants, unless any fee payable in connection with the grant of that leave has been paid". To call that an ungenerous provision is inadequate. It is a provision capable of being oppressive in the case of those with modest resources. In my submission, it is a reason for the rejection of the provision, particularly in specific reference to children, as Amendment No. 14 proposes.

Under subsection (2), the relevant regulations may make different provision for different cases, including provision for cases in which no fee is to be paid. Perhaps that contemplates a waiver of the payment of the prescribed fee. Therefore, it may be that I shall not press that matter when it is put to the House. But Amendment No. 14, I submit, raises a question of principle. It raises also a practical issue regarding that group of people seeking indefinite leave to remain in the special conditions where those conditions can be given. In the circumstances I shall invite the view of the House on Amendment No. 14.

6.49 p.m.

On Question, Whether the said amendment (No. 14) shall he agreed to?

Their Lordships divided: Contents, 66; Not-Contents, 104.

DIVISION NO. 7
CONTENTS
Airedale, L.	Llewelyn Davies of Hastoe, B
Ardwick, L.	Lloyd of Kilgerran, L.
Basnett, L.	Lockwood, B.
Bonham-Carter, L.	Lovell-Davis, L.
Bottomley, L.	McGregor of Durris, L.
Brooks of Tremorfa, L.	McIntosh of Haringey, L.
Bruce of Donington, L.	McNair, L. [Teller.]
Carmichael of Kelvingrove, L.	Mason of Barnsley, L.
Carter, L.	Mishcon, L.
Cledwyn of Penrhos, L.	Molloy, L.
Cobbold, L.	Mountevans, L.
Cocks of Hartcliffe, L.	Mulley, L.
Davies of Penrhys, L.	Nicol, B.
Dean of Beswick, L.	Northfield, L.
Dormand of Easington, L.	Ogmore, L.
Elwyn-Jones, L.	Parry, L.
Ennals, L.	Peston, L.
Falkender, B.	Pitt of Hampstead, L.
Fisher of Rednal, B.	Ponsonby of Shulbrede, L. [Teller.]
Foot, L.
Gallacher, L.	Prys-Davies, L.
Galpern, L.	Serota, B.
Graham of Edmonton, L.	Shackleton, L.
Gregson, L.	Stedman, B.
Grey, E.	Stewart of Fulham, L.
Hampton, L.	Stoddart of Swindon, L.
Harris of Greenwich, L.	Taylor of Blackburn, L.
Houghton of Sowerby, L.	Taylor of Gryfe, L.
Irving of Dartford, L.	Tordoff, L.
Jay, L.	Underhill, L.
Jeger, B.	Wigoder, L.
Jenkins of Hillhead, L.	Winchilsea and Nottingham, E.
John-Mackie, L.
Kagan, L.	Winterbottom, L.

NOT-CONTENTS
Alexander of Tunis, E.	Bauer, L.
Allerton, L.	Beaverbrook, L.
Arran, E. [Teller.]	Beloff, L.
Balfour, E.	Belstead, L.

Bessborough, E.	Leathers, V.
Blake, L.	Lindsey and Abingdon, E
Boardman, L.	Long, V. [Teller.]
Boyd-Carpenter, L.	Lucas of Chilworth, L.
Brabazon of Tara, L.	Lurgan, L.
Brookeborough, V.	Lyell, L.
Brougham and Vaux, L.	McFadzean, L.
Butterworth, L.	Malmesbury, E.
Caithness, E.	Mancroft, L.
Cameron of Lochbroom, L.	Margadale, L.
Campbell of Croy, L.	Marley, L.
Carnegy of Lour, B.	Marshall of Leeds, L.
Carnock, L.	Mersey, V.
Chelwood, L.	Monk Bretton, L.
Colnbrook, L.	Monson, L.
Constantine of Stanmore, L.	Morris, L.
Cork and Orrery, E.	Mottistone, L.
Cox, B.	Moyne, L.
Craigavon, V.	Munster, E.
Crickhowell, L.	Nelson, E.
Denham, L.	Norfolk, D.
Dundee, E.	Nugent of Guildford, L.
Elliott of Morpeth, L.	Orkney, E.
Fanshawe of Richmond, L.	Oxfuird, V.
Ferrers, E.	Pender, L.
Fisher, L.	Peyton of Yeovil, L.
Fortescue, E.	Renton, L.
Gibson-Watt, L.	Rochdale, V.
Grafton, D.	St. Davids, V.
Gray of Contin, L.	Salisbury, M.
Gridley, L.	Saltoun of Abernethy, Ly.
Grimston of Westbury, L.	Sanderson of Bowden, L.
Haddington, E.	Sharples, B.
Hailsham of Saint Marylebone, L.	Skelmersdale, L.
	Stodart of Leaston, L.
Hardinge of Penshurst, L.	Teviot, L.
Harmar-Nicholls, L.	Thomas of Gwydir, L.
Harvington, L.	Thomas of Swynnerton, L.
Havers, L.	Trafford, L.
Hesketh, L.	Trumpington, B.
Hives, L.	Vaux of Harrowden, L.
Hooper, B.	Waldegrave, E.
Hylton-Foster, B.	Ward of Witley, V.
Jenkin of Roding, L.	Wise, L.
Kenilworth, L.	Wyatt of Weeford, L.
Kimball, L.	Wynford, L.
Kinnaird, L.	Yarborough, E.
Kitchener, E.	Young, B.
Layton, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.57 p.m.

[Amendments Nos. 15 and 16 not moved.]

Lord Mishcon moved Amendment No. 17: After Clause 8, insert the following new clause:

("Repeal of Immigration (Carriers' Liability) Act 1987.

. The Immigration (Carriers' Liability) Act 1987 is hereby repealed.").

The noble Lord said: My Lords, the House may feel that I am emboldened at the end of this evening at this Report stage to do something which the House might not be prepared to accept because of its dramatic nature, as the amendment before us is that an Act of Parliament recently passed in your Lordships' House should be repealed.

I should immediately tell your Lordships that it will not be my intention to seek the opinion of the House upon that repeal, and that I have intentionally put the amendment down in order, when we are dealing with general immigration matters, to see that the House is properly informed of how a certain Act which has very much to do with immigration is being carried out at this particular moment.

When the Immigration (Carriers' Liability) Act was before the House as a Bill we ventured from these Benches to say two things. The first was that it would operate most unfairly and most unjustly upon those immigrants who were fleeing from persecution and oppression and who might, as a result of that, not have papers in order when they reached these shores; and that carriers, as a result of that, would refuse because of the penalties imposed upon them by the Bill to take the slightest risk in regard to those people, and we might be doing things of a most unmerciful kind which we would not wish consciously to do. Secondly, we said from these Benches that unless administration was particularly careful, injustices would be perpetrated upon the carriers. The Act imposes a liability—not a maximum liability; an actual liability—of £1,000 if the carrier brings to these shores, whether by aircraft or by ship, someone whose papers are not in order and who is endeavouring to become an immigrant.

I have been requested by a lawyer—obviously I shall not give your Lordships his name; you would not expect me to—in a very well-known and reputable firm of lawyers which acts for a group of carriers to bring to your Lordships' attention what is happening under the provisions of the Act which this House passed. As you would expect of me, I have given the Minister notice of the letter which I am about to read in part. I repeat, these lawyers are acting for a group of foreign carriers. This is the portion which I want to read to your Lordships: As you will doubtless recall, the Act requires carriers to make payments to the Secretary of State of £1,000 in respect of each passenger brought by them to the United Kingdom without proper documents. The total present liability of our clients alone exceeds £700,000 and the Treasury Solicitor is now threatening actual proceedings against some of them. Whilst my clients have reservations about the underlying principle of the Act, they recognise that it is the function of the Home Office to implement existing legislation. Their complaint lies however, in the method of such implementation, the lack of notes and guidelines in dealing with cases falling under the Act and, above all, the failure by at least some members of the Immigration Service to allow the airlines an opportunity to avail themselves of the defences under the Act. From the information I have received from my clients the following problems are experienced at Heathrow Airport:—

1. l. The way in which the airlines are dealt with under the Act varies from Terminal to Terminal and even between the immigration officials concerned. In particular, the time delay between arrival of a passenger allegedly not carrying proper documentation and notification to the airline varies considerably. In Terminal 2, for example, notification to the relevant airline of such a passenger can take anything up to two weeks. You will appreciate that this delay greatly restricts the airline's ability to carry out investigation at the point of embarkation.
2. 2. There is apparently no set procedure by which an airline can obtain copies of documents or inspect the complete files. Without copy documents and, in some circumstances, the passport may well be the only relevant document, it is in effect virtually impossible for the airline to carry out any investigation with a view to establishing the defences provided for in the Act.
3. 3. In a number of instances the airline is given the opportunity to fly out a passenger, who arrives without proper documentation as soon as possible after arrival. If such opportunity is taken the fine is still levied. Further, in a majority of cases with which I am presently concerned, the passenger has been allowed into the United Kingdom".

I have finished the quotation from this letter dealing with the complaints. I merely say that it continues by confirming that this is only a brief summary of some of the main grievances which foreign airlines have at the moment operating under this Act.

The reason for bringing this matter to the attention of your Lordships is that when we are dealing with the Bill and with the carriers' liability in respect of immigrants it is right in my view that noble Lords should know of the grievances of foreign airlines, which have so much to do with immigration and especially with the immigration of those who are claiming asylum in this country. I have brought this to the attention of the Minister in the confident hope that, having seen the letter—and the noble Earl has seen it in full—he will have noted the complaints that are made. I am hoping that he will see with his wisdom and sense of fairness that the appropriate course—but that I must leave to him—is to ensure that those who have these grievances are able to meet him or some of his senior officials. Then the grievances may be properly discussed so that a fair and proper procedure is put in motion in order that the provisions of the Act which I have mentioned are carried out in the way which I believe your Lordships would want. At this stage I propose to say no more. I beg to move.

Lord Mulley

My Lords, I should like to support what my noble friend has said concerning the problems for air carriers as well as the general problems posed by this Act. I think noble Lords should first be reminded of the circumstances in which it was brought in. It is a classic example of hard cases making bad law, because the Act was brought in in great haste by the Government to deal retrospectively with the situation. It came in on 15th May with retrospective effect to March in order to deal with the problem of the Tamils who came here in circumstances of some distress, which noble Lords will remember. This led to a great many legal problems.

Secondly, the Act is an extremely bad piece of legislation because it was rushed through both Houses of Parliament on the very eve of the general election. If my recollection is not mistaken there was practically no discussion on the Bill in another place for reasons that we well appreciate on the very eve of preparations for a general election.

However, in addition to the points which my noble friend has made, I should like to recall the problems that this Act poses for the ferries, particularly the short sea ferries, regarding how they can satisfy themselves. I believe that at the time there was doubt as to whether the French authorities would permit carriers to prevent French citizens from going on to their boats, whether or not they had passports. The French view was that their citizens had such rights, and there were great difficulties.

I did not realise that this amendment was coming up in time to send details to the noble Earl, but I have had correspondence with his honourable friend the Minister of State about the problems which arose when the Act first came to be implemented on the short sea ferries. I accept my noble friend's wisdom that we should not seek that the House accept this amendment and repeal the Act this afternoon, but that there would probably be dancing in the streets of Dover and Calais were we to do so, because that would remove one of the many difficulties facing the short sea ferry companies as the Euro-Tunnel project goes along.

Certainly those companies have plenty of problems as to how to cope in the short-term with the requirement to satisfy themselves; £1,000 per passenger can be an enormous sum. I do not know whether the Minister has any figures on this but an amendment was put to the House. In the event I do not think it was put to the test, but the amendment said that the Bill should not apply to journeys emanating in the European Community. I thought at the time that that would have resolved many of the difficulties and might have prevented us getting into further difficulties with our friends in the Community.

The Act as drafted is, if not strictly against the law of the Community, certainly against the spirit. While there is no possibility of moving such an amendment tonight, I ask the noble Earl to consider with his colleagues whether it may be proper on Third Reading to introduce such a modification, perhaps along with others, to the Act.

As my noble friend Lord Mishcon has said, we are looking at this stage at the whole field of immigration and transport. It would be a great mistake to let the opportunity go without taking action. I hope that we shall have an undertaking that the matters will be considered further before the House returns to the Bill.

Earl Ferrers

My Lords, in moving the amendment the noble Lord, Lord Mishcon, was kind enough to say that he would not press it. if I may say so, that is a welcome change of approach this evening. It is what he would describe as a gentle shaft of light. I am grateful to him for that. The proposal is that the Immigration (Carriers' Liability) Act should be repealed. That Act has been in operation since 4th March 1987.

The purpose of the Act was to close off a significant loophole in our immigration control. Serious problems had arisen because growing numbers of inadmissible passengers were arriving here without documentation. They were then resisting return by claiming asylum.

The Immigration (Carriers' Liability) Act sought to ensure that people do not travel here without documents required by the immigration rules. If they do so, a charge of £ 1,000 is levied on the carrier. The Act has prevented large numbers of people arriving here without proper documents and visas. That does not mean that we have shut the door on asylum applicants. Since the Act was introduced, we have continued to accept asylum applications. For example, in January alone over 100 asylum applications were made at ports of entry. I believe that that underlines the view that the genuine refugee applicant and an absence of documentation do not necessarily go together.

I realise that the Act has caused problems for carriers. They have generally been highly responsible and co-operative on the implementation of the Act. After some initial reluctance, both air and sea carriers have accepted training packages which have been designed by the immigration service. In particular, the immigration service has joined control authorities and airlines from other countries in a joint training programme under the auspices of the International Air Transport Association. Meetings have also been held with the board of airline representatives in the United Kingdom and with the General Council of British Shipping.

Carriers have been provided with guidance on the requirements of the Act from the outset. The immigration service has been consistently prepared to help as regards training. It has also provided carriers with copies of the guidance notes which it follows in exercising discretion concerning the levy. Those guidance notes reflect the assurances which were given in both Houses during the passage of the Act. Meetings have been held in recent months between the various bodies representing carriers. The meetings have been most cordial and have resulted in a closer understanding of administrative problems which arise from time to time. Workable arrangements have been made whereby carriers can be notified of the circumstances soon after liability has been incurred. They can also see relevant documents.

The noble Lord, Lord Mishcon, asked whether we would be prepared to discuss the operation of the Act further. My officials will be delighted to do so and the immigration service is quite willing to discuss the operation of the Act with carriers and their representatives at any time. I believe that that is the best way forward. I shall take note of the points to which the noble Lord, Lord Mishcon, referred in his speech, and I realise that carriers have found some areas of difficulty.

A statistical comparison relating only to passengers seeking asylum may illustrate the effect of the Act. The noble Lord, Lord Mulley, suggested that the Act should be amended or altered. However, immediately before the introduction of the Act, asylum-seekers were arriving here at an average rate of 66 per week. Once the provisions of the Act were applied, the rate dropped to an average of just under 26 per week. The Act was not aimed at reducing the number of genuine asylum applications. It was aimed at a new phenomenon which was being experienced in that migrants from a number of under-developed countries avoided removal from the United Kingdom by a combination of arriving without documentation or with inadequate documentation and claiming asylum.

The noble Lord, Lord Mulley, asked whether we had figures showing what had happened. Up to 31st March 1988 around 5,600 notices of liability were served on carriers. Discretion was subsequently exercised in about 1,000 cases and demands for payment were issued in the remaining 4,600 or so cases. Of the debt of £4.6 million which the demands represented, £1.8 million or about 39 per cent. has been paid, leaving £2.8 million outstanding.

7.15 p.m.

Lord Mulley

My Lords, can the noble Earl tell the House how those figures are divided between short journeys within Europe and those further afield? I believe that the European problem is quite different from that of migrants seeking asylum, to which he referred.

Earl Ferrers

No, my Lords, I cannot do so without notice.

Lord Mishcon

My Lords, I hope that your Lordships will think that I have carried out a proper duty in bringing these matters to the attention of the House. They are serious and there is a sense of grievance, whatever the Minister may say—and say with great sincerity. There is great grievance among foreign carriers who feel that they are being unjustly and wrongly treated under the provisions of the Act.

The Minister has been good enough to say that he welcomes meetings between his officials and carriers in order to see whether the problems can be properly dealt with. Knowing him as we all do, I am sure that he will take a personal interest in the outcome of such discussions. I am grateful to him for the gracious way in which he has dealt with the amendment. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 [Short title, interpretation, commencement and extent]:

Earl Ferrers moved Amendment No. 18: Page 5, line 31, after ("3") insert ("(Members of diplomatic missions)").

The noble Earl said: My Lords, I spoke to Amendment No. 18 when I spoke to Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Schedule [Minor amendments]:

Lord Mottistone moved Amendment No. 19: Page 7, line 18, after ("them") insert ("within a stated period")

The noble Lord said: My Lords, I have four amendments to draw to the attention of your Lordships. I propose to move Amendment No. 19, and to speak to Amendments Nos. 20, 21 and 22 together and subsequently.

The subjects covered by the amendments were raised briefly in Committee without the actual amendments. The first amendment relates to the fact that a carrier stands to have potentially unlimited liability, both in time and amount, in respect of repatriation costs which it may incur with regard to any traveller it brings to the United Kingdom. It is not good accounting practice for a company to have to carry such potential liabilities in their accounts for an indefinite period of time. This amendment provides that a time limit—decided at the immigration officer's discretion—has to be imposed with regard to the notification to the carrier of the liability.

At Committee stage my noble friend Lord Ferrers said that he recognised that point. He said: We recognise that it is difficult for carriers to plan adequately to the extent that the financial commitment imposed upon them is completely unknown. Therefore, we have undertaken to conduct regular reviews of long-running individual cases to make sure that carriers are not faced at short notice with a substantial bill".—[Official Report, 22/3/88; col. 161.] I like to think that my Amendment No. 19 gives what one might call practical effect to the spirit behind my noble friend's comment. Therefore, I hope that even if at this stage he feels that he cannot accept it he might give me a favourable indication on that particular point. I think it is one that could well be included in the Bill without either spoiling the Bill or being at variance with what my noble friend said in Committee. I beg to move.

Lord Mulley

My Lords, I should like to support the amendments moved by the noble Lord, Lord Mottistone. As he said, we had some discussion on this question in Committee. The Minister gave an undertaking then that there would be a meeting between the General Council of British Shipping and his colleague the Minister of State, Mr. Renton, who deals largely with immigration matters. The meeting took place. I gather the shipping company representatives were received with great courtesy and there was a useful but not very positive discussion. In my experience the Minister of State is a man of great originality, often excessively so; and I was rather surprised to learn that he, or his officials, produced all the usual reasons—which I think must be contained in some form of note to officials—as to why they should take no action.

First, it was apparently argued that it would be a bad precedent because what was done for shipping would have to be done for aviation. In a moment I shall explain how both can be done without any difficulty at all. Secondly—again a frequent excuse for not putting law right—the officials said that there have been a number of cases in the House of Lords. As the noble Lord, Lord Mottistone, has mentioned, there have been severe cases in which the carrier had to fork out to take back someone whose illegal entry had been discovered several years after it took place and which have been mitigated by action in your Lordships' House sitting in its judicial capacity. That is not a very good reason for not bringing up to date the 1971 Act as this Bill purports to do, which is all we are asking for. It is not a good reason to say that they can go to the courts and perhaps if they come to this place in its judicial capacity their case will be favourably considered. Surely these matters should be put right because they are unjust.

In particular, Amendment No. 19 deals with the question of false papers. It relates to cases in which carriers have carried passengers in good faith and the immigration officials have admitted them and it is later discovered that they have entered on the basis of false documentation. In fact the one good thing—

Lord Mottistone

My Lords, will the noble Lord permit me to intervene? I am specifically talking only to Amendment No. 19. He is going on to the other areas, which I shall take separately.

Lord Mulley

My Lords, I am sorry. I understood that the noble Lord was to take all these amendments together. If that is not so, I shall not press this particular matter. However, I stress to the Minister that I know from past experience that one of the objections which officials always raise to accepting amendments is that if a Bill gets through the Committee stage without any amendments it means that it does not have to go back to another place. This afternoon at the invitation of the Minister we have made two amendments to the Bill so that it will have to go hack to another place in any case. I do not think that our colleagues there would find any difficulty in accepting the amendments which the noble Lord, Lord Mottistone, has put before your Lordships.

I know that it could be argued—and I am sure that with his great experience and understanding of the House the noble Earl will not do so tonight—that the amendments are not very well drafted. It is well known that when a parliamentary draftsman drafts an amendment for you and the parliamentary draftsman responsible for the Bill does not know that it was drafted by one of his colleagues he would be bound to say that it would need some amendment and could not be accepted in the form in which the noble Lord or honourable Member put it down. Since the Bill must go through another stage in this House, I am sure that the Minister will undertake to put right any technical difficulty there might be with the amendments.

Since we are dealing only with the first amendment, I shall reserve my observations on the last amendments until the appropriate time.

Earl Ferrers

My Lords, I shall accede to the request of the noble Lord, Lord Mulley, not to say that the amendment is not properly drafted. I am grateful to my noble friend for having put down the amendment. I accept that there is a real difficulty here. When a person is refused entry to the country for whatever reason and has to be removed, someone has to pick up the bill. For many years it has been accepted that that should fall upon the carriers for the simple reason that there has been a contract between the carrier and the person who has been carried. At that point the United Kingdom has not been involved at all. Its only involvement is when it seeks to prevent entry into the country by someone whose only connection with the country is his inability to qualify to enter.

If that principle were removed, and I can see that there are some who might wish it to be removed, the cost would fall on the taxpayer. Our practice of requiring carriers to bear the cost of removing people who do not qualify for admission has been followed for many years. It is in line with what has been done elsewhere in the world. The principle involved is generally accepted by the carriers even though I realise that they may not find it particularly charming.

My noble friend's amendment addresses a concern that there are cases in which carriers think that they are unfairly treated. Amendment No. 19 seeks to amend paragraph 9 of the schedule to the Bill so that when a carrier is served with a notice of intention to give removal directions a time limit must be set within which specific directions must be served. That would ensure that carriers have a firm indication of the period for which a potential liability is to be outstanding. I appreciate the desire of the carriers to avoid what they might otherwise consider to be an open-ended commitment. However, if the principle which I described is accepted, there is no reason why at a particular point the taxpayer should suddenly be responsible for bearing the cost of a case just because it has taken some time to bring it to a conclusion.

If there is any force in the principle—and I believe that there is—it is not weakened in any way by the simple passage of time. I think that the proper way to remedy the carriers' sense that the present system is unfair is through discussion. My honourable friend the Minister of State in another place recently had a meeting with the ferry operators at which that and other points were discussed. That meeting resulted in a better understanding on all sides of the issues which are involved and in agreement on the need for closer co-operation between ferry operators and the immigration service.

For example, it was agreed that where it is not possible to serve specific directions within two months, cases will be regularly reviewed and the carrier advised of the present position, including whether liability has lapsed. I think that that represents the most constructive solution to the problem raised in my noble friend's amendment. However, I realise that there are difficulties and I hope that he can agree that the best way to try to resolve them is through discussion.

Lord Mottistone

My Lords, the answer is no. Obviously discussion has not been as fruitful as it might have been. I do not think that discussion will be the complete answer. I had rather hoped in identifying separately Amendment No. 19 that my noble friend might have seen his way to accepting it even if he could not accept the other amendments. Clearly he feels that he cannot accept it and I shall have to come back to this matter. I do not propose to take the question to a Division because that would not be the sensible thing to do. We might lose the amendment. We have seen many amendments lost today and perhaps more than is reasonable. So that would not be an answer. In any case, my noble friend is right. He was kind enough to make the point that there is a very serious problem here which is not answered by discussions and reviews. There is a need for the law to be altered. However, at this stage I shall certainly withdraw Amendment No. 19.

Amendment, by leave, withdrawn.

7.30 p.m.

Lord Mottistone moved Amendment No. 20: Page 7, line 39, at end insert—

("Removal directions

11. After paragraph 8(2) of Schedule 2 there shall be inserted— (2A) No direction shall be given under the paragraph in respect of a person brought to the United Kingdom under the direction of another country's service.".")

The noble Lord said: My Lords, in moving Amendment No. 20, I should like also to speak to Amendments Nos. 21 and 22. Amendments Nos. 20 and 21 are separate points and Amendment No. 22 is consequential upon them.

Amendment No. 20 seeks to cover those cases where the carrier is directed by another country's immigration service to bring a person to the United Kingdom. For example, a person arriving in the United Kingdom by air may be given leave to enter the UK for a limited period of time. He then chooses to outstay his welcome and sometime after the expiry of that leave to enter he may be cleared by the immigration service on his way out of the country, perhaps on a day excursion to Calais. If the French authorities refuse that person leave to enter, the carrier is directed to return the person to the United Kingdom where he is again refused entry and the ferry operator can then be directed to return that person to some far flung part of the world. Thus, in return for as little as a £5 day excursion ticket, the ferry operator may have to find a hundred times that amount for an airline ticket. That is patently unjust.

I turn to Amendment No. 21, which covers those cases in which a person enters the United Kingdom by deceiving the carrier with regard to any document checks introduced at the port of embarkation as a result of the Immigration (Carriers' Liability) Act, and also by deceiving experienced immigration officers at the port or place of entry. It is unjust that the carrier should be liable for any removal expenses if the falsity of the documents becomes apparent some time after the person has obtained entry into the country and if the immigration officers have themselves been fooled by the falsity of the documents.

The amendment does no more than bring the provisions of the Immigration Act into line with the Immigration (Carriers' Liability) Act 1987 which does not impose any penalty on the carrier for failing to detect a potential illegal entrant if his travel documents are such as to deceive even an experienced immigration officer. The wording of this amendment parallels the wording of that Act which states: A document should be regarded as being what it purports to be unless its falsity is reasonably apparent". So we are only taking it to that point.

My noble friend makes the point, and he has made it before, that it is wrong for the taxpayer to bear the cost. I suggest that it is not reasonable to view the taxpayer as a special individual who will hand over the money to someone. The taxpayer is in exactly the same position in relation to the Government as a shareholder is in relation to a company. If an immigration officer makes a mistake and fails to identify the falsity of a document, the Government would be responsible in the same way as a company takes responsibility for errors on the part of its employees.

If a company is required to make some restitution when an error on the part of one of its employees is revealed and it has to pay out some money, it does not say to the world or to the people concerned, "Oh, that's unfair on my shareholders". I am afraid that most companies do not think enough of their shareholders to do that. The taxpayer is just like a shareholder in that respect. It is quite wrong of the Government, as the employer of the immigration service and other people, to behave as though they are standing back and looking after the interests of the shareholders. They are not doing anything of the sort. They are simply trying to get out of paying a charge which would naturally fall upon them if they were a commercial organisation. It does not seem to me to be right and it is something that ought to be tackled again. I hope that my noble friend will be able to come up with a proposal which at least acknowledges that this is not a straightforward matter which can be disposed of just by the argument that it is wrong for the taxpayer to pay for that kind of error. How this matter is tackled later on depends very much on my noble friend's reply.

Amendment No. 22 merely gives effect to placing with the Secretary of State the responsibility for the cost of removal in the cases uncovered by Amendments Nos. 20 and 21. I beg to move.

Lord Mulley

My Lords, I should like to add a few words to the excellent case made by the noble Lord, Lord Mottistone. In Amendment No. 21 we seek to ensure that the same provision—Section 1(4) in the Immigration (Carriers' Liability) Act 1987, which is restricted to the operation of that particular Act—should be made general in terms of the 1971 Act.

As has been pointed out with great clarity, when false documents are of such a character as will deceive a trained immigration officer, it is grossly unfair to expect the carrrier (whether by air or by sea) to have a superior knowledge and way of detecting fraud than do the immigration officers themselves. As the noble Lord, Lord Mottistone, said, in the normal way of business the company or its proprietor has to take responsibility if its servants make such mistakes.

But how does the fact that the taxpayer pays justify the inclusion of Section 1(4) in the 1987 Act? If the taxpayer is prepared to cough up the money for that—which I should have thought is likely to prove much more expensive because clearly more people make the short journey across the Channel by the sea ferries than are likely to travel on vessels which come under the provisions mentioned by the noble Lord, Lord Mottistone—I cannot believe that one can distinguish as regards the taxpayer's liability in respect of the two pieces of legislation. The noble Earl ought to look at this point between now and the Third Reading of the Bill with a view to bringing the two measures into line.

Lord Colnbrook

My Lords, I too should like to urge my noble friend the Minister to look again at this point. I find myself very much in support of the noble Lord, Lord Mottistone, particularly in regard to Amendment No. 21. It seems to me that we are in an absurd situation because the companies which bring people by air or sea to this country are now expected to do the Government's job for them. There is nothing new in that. Throughout the centuries governments have required private citizens to collect taxes for them, and so on. We believe that the operating companies should act as immigration officers and should be able to do the job of immigration officers before they accept a passenger.

A few moment's ago, in replying to another amendment, my noble friend the Minister spoke about the guidance notes that are issued and indeed the training that is given to employees of the companies by the immigration services in order to help them to do this job. However, it seems wrong that the Government should expect the companies to be better at that job than their own servants, because that is the situation at the moment. Someone arrives with false documents. The immigration officer, who has undergone long training at public expense and who has worked at his job for many years before being given the right to make decisions of his own, is deceived. Yet apparently the law says that the company ought to be better at the job than he is. That does not seem a fair situation. The business of the company is to carry passengers. It has now to be an immigration officer; but it ought not to be a superior immigration officer.

On the question of paying—and in so many cases, as we know, the issue comes down to who pays—I support what the noble Lord, Lord Mulley, said. If a mistake is made by a government servant—that is, an immigration officer—how can the Government say that somebody else ought to pay? It does not seem fair. Everyone wants the law to be fair. I do not believe that this is fair. I hope very much that the Minister will say that he will consider what he can do to make the position fairer.

Earl Ferrers

My Lords, in these amendments my noble friend seeks to enable the carriers to ensure that they will not have to meet the costs of the removal of people in two circumstances: first, where the people concerned have previously succeeded in deceiving an immigration officer into admitting them; and, secondly, where someone arrives back in this country having been refused admission to another country and returned here.

As they are presently drafted, obviously the amendments would have some very undesirable and damaging practical consequences. For example, Amendment No. 20 is worded so loosely that it could apply to people who had never been in this country but who were brought here, under the direction of another country's service". It sometimes happens that foreign nationals being removed from a third country have to travel in transit through the United Kingdom on the way home. This amendment would make the British taxpayer responsible for hearing the cost of transporting those people to their ultimate destination, even though they have never actually been in this country. Obviously, that would be wrong.

I realise the carriers believe that in some ways the traditional approach treats them harshly. On the previous amendment I tried to explain our approach to this. I do not believe it is right to weaken the principle by the amendments, in particular when they would additionally involve inflicting serious damage on our system of immigration control. However, I recognise that there is a problem. My noble friend Lord Colnbrook says that we are asking the carrier to do a better job than the immigration officers. With respect, I do not think that that is quite true, although I see the point that he tries to make.

If one considers the facts quite rationally, someone has been transported to this country and seeks to enter it with no right of entry. Someone has to pay the bill. In equity one might say that the cost should be paid by the person who has so travelled. However, on the principle that the person is probably unable to pay, he has to be removed. I am bound to come back to the argument that I know both my noble friends and the noble Lord, Lord Mulley, find fairly unacceptable. If someone is going to come into this country, until the point at which he enters the country the United Kingdom has no connection with him. The carrier has a connection. The carrier had a contractual liability to bring him. Therefore if it brings someone who proves to have been incorrectly brought, then we believe it is right that the carrier should accept the responsibility of taking him back. That principle has been accepted for quite a long while.

I know that the principle has harsh consequences. But I find it hard to say that because a person has arrived in this country who should not have arrived, trying to get in when he should not get in, and who then has to be removed, that the British taxpayer should pick up the bill. All one has done is to say that this person has no right to enter here. I realise that it has harsh consequences but it is a principle which immigration, and the carrying of immigrants, has adopted in the past. I believe that it ought to continue.

Lord Mottistone

My Lords, perhaps I may leave this thought with my noble friend. He says that the practice of expecting the final carrier to bear the cost of the commitment—whatever it is—has been accepted for many years. No doubt there was a period when it did not matter very much. There was not a great deal of air travel because it was too expensive or did not exist, and people travelled only in ships. It is only within the last 20 years that there has been extensive air travel. Many people who used to come to the Isle of Wight on holiday now go to Spain instead. That is disastrous; but it is another story.

We are saying to the Government that what was necessarily the correct practice under a totally different system—when there was only sea transport and not very much air transport—needs further consideration. One needs figures to show what costs are involved. I suspect that some companies are more heavily burdened than others. The Government need to give further consideration to this subject to allow for the fact that the pattern of travel has changed. What may have been fair in the 1950s will not be fair in the 1990s.

If my noble friend can remember that factor, perhaps we can discuss this further at Third Reading with some suitable amendments. Perhaps we may talk to each other in the meantime on this issue. However, at this stage I beg leave to withdraw Amendment No. 20.

Amendment, by leave, withdrawn.

[Amendments Nos. 21 and 22 not moved.]