§ 4.48 p.m.
§ House again in Committee on Clause 1.
Lord Mishcon moved Amendment No. 2:
Page 1, line 6, at end insert ("but the immigration rules shall be so framed that children of parents with the right of abode in the United Kingdom shall be no less free to enter and remain in the United Kingdom than if section 1(5) of the Immigration Act 1971 had not been repealed").
§ The noble Lord said: I almost feel as though I am about to deliver a sermon, hoping that the congregation will duly assemble.
§ The noble Lord, Lord Renton, in the course of his remarks on the last amendment said that there were various ways of dealing with the problem of Section 1(5) of the Immigration Act 1971. The first way was to try to keep it, possibly adding to it. That was the purpose of the first amendment which my noble and learned friend Lord Elwyn-Jones moved. That amendment was defeated, but it was by such a small majority, comparatively speaking, that I hope that the Minister and his colleagues will give attention to the views that were expressed through the Lobbies from all sides of the Committee.
§ We now move on to what the noble Lord, Lord Renton, said was the alternative: that is, whether without repealing it we can look at the provision and see whether there is something which ought to be saved. That is the purpose of the following amendments that I propose with my noble friends to put before the Committee. We are delighted also to have the support of the noble Lord, Lord Bonham-Carter, as I understand it, and of the right reverend Prelate The Bishop of Ripon, whose speech we listened to with such respect. I am sure that goes for the Government Benches as well.
§ The purpose of the amendment is a "save the children fund" if I may so put it. It is to ensure, whatever the arguments about spouses and dependents, that the children of those who were settled here and who were made this promise under the 1971 Act—and, by children, we are referring only to those under 18—who are in fact still within the purview of Section 1(5).
§ The Committee may have in mind in that context the statement that was made by the noble Earl. As usual, when he makes a statement it is completely accurate. He said that the children and the others will not be stopped from coming here and the only condition will be that they will have to satisfy certain tests. Quite apart from the question of means of support, one of those tests is the ability to house. On Second Reading I ventured to say to your Lordships that there was here a circle which was indeed a very 37 vicious circle. Anyone connected with housing and local authorities and the methods that they have to adopt will know perfectly well that they will not deal with the possibility of a family which is not here or numbers which are not here. They have to deal with applications on the basis of those children who are here and the size of the family as it is at present within their local authority boundaries. So there will be housing accommodation which may he sufficient for the existing members of the family but not for the children that they want to bring over. I repeat that these are people who have been settled here for many years who will be claiming the right to have their children with them. The answer will be: "You have got the accommodation for the present family. You do not have the accommodation for the one or two children you are seekng to get over here. Therefore, as Section 1(5) of the 1971 Act has gone, the answer must be that you cannot have permission to do it.".
§ The one principle that I wish to emphasise—as do all those on the Benches which I have the privilege to represent in this amendment, and, I believe joined by Members of your Lordships' House wherever they may he sitting—is the need to have families united. Distant vistas are conjured up from time to time: that Clause 2 covers polygamous marriages, and we must stop polygamous wives coming here even though only 25 of them were applied for last year. The one thing there is no doubt about, especially in view of recent tests which are supposed to be absolutely foolproof, is that there is no reason why we cannot know who is a child of the family.
§ The question before your Lordships now is whether we should repeal the whole of Section 1(5) or whether we should ensure that those to whom we made this promise can at least get their children in for the sake of family unity and, as I say, for the sake of good citizenship. If the decision of your Lordships in Committee stands that that Section 1(5) be repealed, can we at least save something for the children?
§ Lord Renton
Before the noble Lord sits down, I wonder whether he can explain the following. His Amendment No. 2 reads:but the immigration rules shall be so framed that children of parents with the right of abode in the United Kingdom shall be no less free to enter and remain".It would clarify the position if he were contemplating that even when the parents are not here and have not exercised their right of abode nevertheless the children shall be let in under his amendment.
§ Lord Mishcon
If I may say so, the noble Lord, Lord Renton is making a very valid point, as is not unusual. I am taking it for granted in the wording that it is not only a right but a right which is exercised. I think the noble Lord has in mind a rather peculiar position. That the parents have the right of abode and they make the application is one case. If the parents have the right of abode and so not make the application but the children claim the right even though the claim has not been made, that would be a very odd situation. Perhaps I may have to alter this at Report stage to make the principle quite clear. Where there is the right of abode and the parents endeavour to use that right to get the children over here is the case I have in mind.
§ Lord Renton
First, may I say it really is a joy to listen to the noble Lord. He is so lucid, clear and fair and never seems to refer to a note or an authority. He has the advantage over most of us in that respect. I particularly appreciated what he so kindly said about me when replying to the Government statement on the previous amendment.
Having said that, perhaps I may make this rather silly point. This amendment and each of the next three all start with the word "but". From the point of view of the noble Lords opposite, no doubt they would like all four of those amendments to be added to the Bill to be carried. We should then have four amendments starting with the word "but". That is a matter which could be adjusted.
Now may I use the word "but" and ask, "But what about Amendment No. 2?" Even if one has sympathy with the intention underlying it—and I do not see how one can avoid having some sympathy with it—I wonder whether it is really necessary. If we look at subsection (4) of the 1971 Act, which is not being repealed, it provides for rules regulating the entry of people not having the right of abode and says that those rules shall make provision for admitting,dependants of persons lawfully in or entering the United Kingdom".Therefore, to the extent that Amendment No. 2 applies to the dependants of people already lawfully here, it would not seem to be necessary.
§ Lord Mishcon
Before the noble Lord sits down, in reading subsection (4) he left out, though certainly not on purpose, the following words, which occur in brackets in subection (4):(in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise)".Quite obviously, the intention of subsection (4) was that these dependants will be subject to conditions which can be laid down. Subsection 1(5) of the 1971 Immigration Act made this right unconditional. That was what I was pleading for. I beg to move.
§ 5 p.m.
§ Lord Renton
The noble Lord has a valid point. However, my answer is that the words in brackets provide for exceptions to be made in unusual cases where perhaps there has not been a proper clearance from the consulate—as the case used to be, and I think in some instances still is—at the point at which the immigrants, or would-be immigrants, left their own country. To the extent that the children to be admitted are going to join people lawfully already here, and subject to the exceptions covered by the words in brackets—which I think would be rare—a great part of the noble Lord's amendment is already covered in a law not being repealed.
In this Bill do we wish to go the stage further that the noble Lord has elucidated in answer to the question that I put before he sat down? Do we wish to have arrangements for those cases where the parents have a right of abode, and the children want to come here whether the parents wish them to or not? We are talking of young people under the age of 18. Is this country to be regarded as a sanctuary for children under 18 who have not got on with their 39 families and who think that a good way of getting away from their families is to exploit the parent's right of abode by exercising a right of entry into this country? That is the situation into which this amendment might lead us.
The noble Lord, Lord Mishcon, described the purpose of this amendment as a save-the-children fund. I appreciate the reason that he has put down the amendment. It puts us in difficulty because the amendment permits the repeal of Section 1(5) but it then adds extra conditions. This would create a new category of people who would be entitled to come here freely. The concept of right of abode—and these are the words used in the amendment—means that someone who has this right is free to come and go as he pleases.
All British citizens have the right of abode, and no conditions can be placed upon their entitlement to come here. Anyone who was not born a British citizen, but who has subsequently become one through naturalisation, at the same time automatically acquires the right of abode. Any children born to that person after he becomes a British citizen will themselves be British citizens and will have the right of abode. However, this right of abode does not extend to children who were born before that parent himself acquired the citizenship. If the parent also wants these children to become British citizens and to have the right of abode, he has to take a conscious decision to make the necessary application on their behalf.
The amendment proposes that the children of anyone with right of abode, who do not themselves have the right of abode—perhaps because their parent chose not to register them as British citizens, or for some other reason—should nevertheless be entirely free to come and go to and from this country. The effect would be to create a new category of people who are theoretically subject to immigration control but who, in effect, enjoy many of the benefits deriving from possession of right of abode.
As the amendment is drafted, those affected would continue to enjoy this favourable position throughout their lives. We could be faced with so-called "children", aged 20, 30, 40 or older, who claim a right of entry to this country many years in the future simply because some years earlier one or both of their parents had had that right of abode. It is by no means a compelling argument to say that such people, who have either not been registered by their parents or who have been left abroad for many years at their parents' choice, should be given extra rights of admission over others who are also subject to immigration laws. One either has the right of abode or one is subject to the immigration laws.
The amendment of the noble Lord, Lord Mishcon, would create a new category—a category without the right of abode but whose members were able to enjoy many benefits associated with the right of abode. I do not believe that that would be right.
§ Lord Hylton
The noble Lord stands at the Dispatch Box producing new difficulties out of his 40 sleeve, or from behind his hat, rather like a conjuror. I feel that the Committee would have very much more sympathy with him if he were to say that the amendment moved by the noble Lord, Lord Mishcon, is a reasonable and proper one and that he would get together with the noble Lord to fine tune the wording if it is not 100 per cent. right at the moment. Can the noble Lord, put himself in that position?
§ Lord Renton
Will the noble Lord, Lord Hylton, consider the final point that I made? This amendment would allow children of parents living in the Commonwealth—the parents having the right of abode—to come here even though the parents did not want them to do so, and would perhaps be alarmed at their leaving home.
§ Lord Hylton
It is not for me to speak for the noble Lord, Lord Mishcon, but I thought that he made it transparently clear that he took on that point in the first place and that he was referring to the children of parents who are already legally settled in Britain.
I do not know whether the noble Lord, Lord Hylton, wanted me to say something more. I rather fancy he did. He invited me to say that the amendment of the noble Lord, Lord Mishcon, was an excellent amendment which we would be happy to accept, subject to a little redrafting. I am bound to say to the noble Lord, Lord Hylton, that I could not do that for the very reason that I gave him: it creates a new category of people. It alters the effect of right of abode. The repealing of Section 1(5) has nothing to do with the right of abode. The immigration rules contain very generous provision for the admission of children in a whole range of circumstances, subject primarily to the requirement that the child's parent should be able to show that there is adequate support and accommodation for the child. This is not an unduly onerous requirement. It is one which is as much in the interest of the child as in that of immigration control. It can hardly be in the child's interest that he or she should be brought to the country, if when he or she arrives here there is nowhere for the family to live and no means of support available. It would not be easy to incorporate this amendment because, as I have told the Committee, it creates a new category.
§ The Lord Bishop of Ripon
I am finding a little difficulty in following the Minister because I do not see from where this new category comes. The wording of the amendment states that,children of parents … shall be no less free to enter and remain … than if section 1(5) … had not been repealed".In other words, the situation for them remains as it has always been. I cannot see from where this new category is springing. Therefore, I think that we return to our original arguments. This is about the bringing together of families, in particular those who are affected by the situation where housing is not available. There are a good many families where, since not all the children are present, the house available for the family is not sufficient for the larger number, but it is for the smaller number. There is no 41 way in which more children can come into the country because they are not eligible for larger housing until they are present in this country. That is the Catch-22 situation to which Members referred in the debate at Second Reading. The intention of this amendment is to overcome that situation. I am confused by the argument put forward by the Minister.
§ Lord Mishcon
With all due respect, I do not think that the noble Earl would wish to leave this amendment in a purely negative way. As the right reverend Prelate has said, we are dealing with those people who were previously covered by Section 1(5) of the 1971 Act. In spite of assurances and undertakings, and their decision to put this issue in statutory form, the Government decided that that provision should be repealed. The repeal means that those who were settled as defined in theAct will no longer have the benefit of that subsection. I am trying to save the children from being subject to that repeal and that is all that the amendment asks.
The noble Lord, Lord Renton, said—as he is entitled to say—that in strict accordance with the wording of the amendment, one could have children under the age of 18 applying to come to this country but who do not wish to be with their parents and whose parents do not wish to have them. From any part of the Commonwealth they could argue that they have proof of the fact that their parents comply with the provisions of the 1971 Act and are deemed to be settled here, and that they are subject to Section 1(5) of the 1971 Act. I admit that that extraordinary situation had not occurred to me. It is possibly an academic point but it has been made quite validly.
In answer to the noble Lord, I said freely and frankly that I did not intend the amendment to cover the children of parents who do not want them. This is the Committee stage of the Bill and I am fighting for the principle of admitting those children whose parents want them here to unite the family and who would previously have been protected under Section 1(5) of the 1971 Act. If at the Report stage an amendment is required to cover that contingency which the noble Lord, Lord Renton, properly brought to the attention of the Committee, I shall be more than willing to alter the wording so that that principle is complied with.
The noble Lord, Lord Hylton, made a remark which I hoped would meet an answering chord in the noble Earl's mind. It was that this is obviously a worthy principle; worthy of any humane government and of any government that wish to produce the kind of social conditions which we all want in this country. The noble Lord also said that, while conceding that principle, although the Minister may consider that there is something wrong with the wording—and there is no question of admitting a new group of people and circumstances; I am trying to save something from the total repeal in order to help the children—perhaps he can say that he sees that a case has been made out for trying to save the children from exemption from the privileges of Section 1(5) of the 1971 Act. In that case, I would respond 42 immediately by saying that if something can be done between now and the Report stage to help the children, I shall not now press the matter to a Division. I invite the noble Earl to agree to that appeal from the Cross Benches out of sheer humanity.
§ 5.15 p.m.
I am in some difficulty. I should love to respond to the appeal of the noble Lord, Lord Mishcon. However, he knows that Section 1(5) creates a dividing line between what happens to children born before that date and those born afterwards. The right of abode which a parent correctly has is conferred on those children born to that parent after he has accepted the right of abode. I understand the noble Lord, Lord Mishcon, to be saying that that right of abode should also apply to those born before the date but who have not been to this country. One could find oneself in the position of having people coming to this country from the East for the first time and saying "We can come here. Although we have never been here before, our parents had the right of abode. We think that we should have that too".
I do not believe that that is right or reasonable; I believe that it creates a completely new category. I tried to explain that belief but the noble Lord slightly brushed it away saying that that was not intended. In fact, that would be the effect. I shall look carefully at what has been said by Members of the Committee; but it would be wrong for me to give the impression that I have misinterpreted the amendment because I do not believe that I have done so. The noble Lord appears to wish to preserve the right of all children who at present benefit from Section 1(5). That would not be acceptable because such children would be placed or retained in a privileged position in comparison with the children of Commonwealth citizens. We are entering difficult waters, but I shall look at what the noble Lord has said.
§ Lord Mishcon
I believe that Members of the Commitee will not think me unreasonable in trying to clarify the situation. One is perfectly prepared to try to rescue even a part of the amendment to ensure that positive action is taken. The amendment seeks to provide that those who were permitted entry under Section 1(5) of the 1971 Act shall still be permitted entry if their parents apply for that and if they are entitled, but for this repeal, to have the children here. I am prepared to limit the children to those who are under the age of 18 when the application is made. I am trying to be as reasonable as possible in order to save something from the repeal of this section which I do not believe is to the Government's credit. It does not aid immigration policy which I believe all Members should support on a bipartisan basis. It is, if possible, to turn into good citizens those who are here but who, deprived of family relationships, may turn into citizens who are not good, either because of a sense of grievance or because of the social disability that they have.
Having regard to the limitations which I have put on the amendment, I ask the noble Earl to be good enough to say that he has some sympathy with it and 43 that he will look into the matter to discover whether action can be taken. I shall then withdraw the amendment and not divide the Committee because I believe that to be the wish of the Members.
§ Lord Hylton
Before the noble Earl replies, will he note that the children about whom we are speaking will already be aged approximately 15. I believe that they had to be born before a certain date in 1973. Therefore we are talking about a very small, limited category of children.
That may well be so but Section 1(5), as we saw earlier, in fact creates divisions within a family. The noble Lord shakes his head but it is true.
If the noble Lord would wag his head up and down rather than from side to side it would be more obvious what he was indicating. Section 1(5) creates divisions. Where a person comes in who was born before 1973, he is subject to certain requirements and where he is born after 1973 different factors apply. We are only repealing Section 1(5) because of the European Court of Human Rights and a number of other conditions.
This amendment seeks to preserve a distinction and it is not a question of splitting up families. All that is required is that those who are born before 1973 and who have not now taken advantage of the facilities that were open to them should be in the same position as their brothers or sisters who were born after 1973. I do not believe it is a question of splitting up families. I shall consider very seriously what has been said. However, I repeat that I do not think it would be reasonable to say that there is a clear reason here for continuing a distinction.
§ Lord Pitt of Hampstead
There is a real issue here because again we must go back in time. Many of the children about whom we are talking are the children I mentioned earlier who are on the Indian subcontinent and who are trying to come here, but the officers have been denying that they were the children of the people of whom they claim to be the children. We now have an advance in that. Because of the DNA test it can be proved conclusively that they are those children. We want to preserve the measure so that those children can now come here.
What is more, it is necessary to carry that out in this way because otherwise we are failing the parents who were living here when the 1971 Act was passed and who were promised that they would be allowed to bring in those children. There are many such people. It is not that they were not trying to do that. They were living here and were trying to bring their children here. All sorts of arguments have been put forward that the children were not really their children, but there is now a possibility of proving beyond any doubt that they are those children, and we want them to be able to bring their children here.
The reason why Section 1(5) matters is that, if those children are brought here under any other 44 condition and if it so happens—and it can happen—that the father has been down on his luck, has worked in low-paid jobs (which happens quite frequently) for 15 years, has now lost his job, is unemployed, is receiving unemployment benefit, housing benefit and supplementary benefit, and if in fact the house in which he is living is not large enough for the children, then he will have difficulties. However, if we safeguard the rights by saying that it should not be any more difficult than it was before 1973, he is safeguarded. Even though we may repeal Section 1(5), we have made it possible for those children to join their parents.
I wish the Government would give some thought to those matters. It is all very well to say that there is a discrimination here; of course there is. Any time a line is drawn, those who are above the line have the rights and those below do not. The Government are saying that to equalise the matter the rights should be taken away. However, taking away the rights has certain consequences which could be unpleasant. Therefore we say—and for the moment I am assuming that Section 1(5) is repealed—all right; let us see how we can safeguard those children. In effect the point of the noble Lord, Lord Renton, could have been met by a clause stating:so framed that the children of parents with the right of abode in the United Kingdom whose parents have applied to have them join them in the UK".That provision could have been included in the clause and that would have restricted the matter. There are ways and means of meeting this point. Therefore I wish the Government would look at the matter in that way and not keep deliberately putting obstacles in the way of uniting those families.
§ Lord Bonham-Carter
There are two points which the noble Earl, Lord Ferrers, made which will arise again and again unless we deal with the matter at this moment. He speaks as though the worst thing in a Bill of this kind is an anomaly and that an anomaly is something which must be abolished at the first opportunity.
I tried to argue earlier that nationality Bills and immigration Bills inevitably create anomalies between different types of person. The Nationality Bill 1981 creates a distinction between those born before 1983 and those born after 1983. That is done consciously and deliberately. The Immigration Bill 1971 creates an anomaly between those born before 1971 and those born after 1971. That is also done absolutely deliberately and consciously. Therefore, it is not very convincing to say that something must be stopped because it is an anomaly, as if that were a sufficient reason in itself. A better reason than that is needed to justify depriving people of rights which they had hitherto.
The noble Earl then goes on to say that it is not a question of splitting up families. I agree that it is not a question of splitting families but the point about the immigration rules which applied to those born after 1971 but not to those before 1971 is that they were designed to make it more difficult for those people to come here and have made it more difficult for families to unite. Therefore let us not become involved in a 45 terminological dispute about splitting or not splitting.
As I understand it, this amendment seeks to try to reinstate rights which the repealing of Section 1(5) have taken away. It tries to mitigate the consequences of that and, in particular, tries to mitigate those consequences by removing obstacles which have since been imposed on the unification of families. Those are the issues which this amendment tries to rectify.
The noble Lord, Lord Bonham-Carter, said that we should not use the expression "splitting or not splitting". I do not want to be like the proverbial schoolboy, but I did not start that. We were told that the Government were splitting families. The noble Lord says that we are depriving people of rights. The position is that if you have a right of abode, you have a right to come and go. If you are a British citizen, that right goes to the child of that marriage automatically. The problem here is what happens before 1973.
It is not a question of whether children should be able to come and go, but Section 1(5) enables the children of boys who could have been aged one in 1973 to come here but those children might not even be born now. The noble Lord, Lord Bonham-Carter, cannot say that that was what was intended in 1971. Everyone knows that that proviso was included in the 1971 Act in order to allay the concern of those people who were quite rightly concerned and were then resident in the United Kingdom.
It is wrong to say that we are, to use the words again, splitting families, because we do not accept that the children born here of boys (not of girls!) who were aged one in 1973 can come here—and those children are not yet born! Are we to be accused of acting unreasonably when we say that in our view that is extending the rights of entry into this country too far?
§ Lord Mishcon
It is with deep regret that I listen to the noble Earl. Our approach was to ask him to do something to save circumstances from arising after the repeal of Section 1(5) of the 1971 Act and to do it for the sake of the children and, I repeat, uniting members of the family.
I invited the noble Earl—and I hope I did so in respectful language—at least to say that the Government have some sympathy in this and will consider whether there could be a meeting of the ways. He used certain words from which I hoped to extract a promise to do that very thing. I am afraid that I did not get the response from the words he used that I was seeking to evoke.
May I get one point absolutely clear? Is the noble Lord saying that I should go back and consider whether it is correct to give rights to children who are not yet born but who may be born to children who might have been aged one in 1973? Is that what he wants me to consider? If it is, I am bound to say that, in fairness, I cannot. However, I shall consider all that has been said in case I am wrong.
§ Lord Mishcon
What I am asking the noble Earl to do—and I should like to be precise in my language—is this. I am saying that children who had certain rights, together with their parents, of being united are being robbed of those rights by a total repeal of subsection (5). I am asking the noble Earl whether he is prepared sympathetically to consider some limitation of that repeal so that some rights remain for children who otherwise would have been protected by subsection (5). I do not ask it under this amendment for spouses or for any other relations or dependants but purely for the children.
I ask the noble Earl, in all solemnity and still with some amount of optimism, to at least be prepared to consider whether the Government can meet that requirement, not necessarily in totality but to come some way down the road with some sort of offer to save for some of those children the benefit they had under the old subsection. If the noble Earl merely says that, I will withdraw the amendment. If he cannot say that, he gives me no alternative but to take a certain course.
I feel as though I am about to go to the execution block when the noble Lord says that. I can only say to him that I shall consider what has been said. However, the noble Lord asks me to consider giving certain rights to people who have had certain rights removed from them. We are repealing a certain section of the 1971 Act and it is repeal of some importance. Therefore, I could not say to the noble Lord—no, I could not—that I agree there is something we will do. What I am prepared to do, if the noble Lord finds it of satisfaction, is to say that I shall consider what has been said but without any undertaking to agree with it.
§ Lord Mishcon
I take it for granted that the noble Earl and the Government will always consider what has been said in this Committee. I am afraid that gets me nowhere and with great reluctance I ask that the opinion of the Committee be taken.
§ 5.34 p.m.
§ On Question, Whether the said amendment (No. 2) shall be agreed to?
§ Their Lordships divided: Contents, 89, Not-Contents, 132.48
|DIVISION NO. 2|
|Airedale, L.||David, B.|
|Ardwick, L.||Davies of Penrhys, L.|
|Aylestone, L.||Donaldson of Kingsbridge, L|
|Barnett, L.||Donoughue, L.|
|Basnett, L.||Dormand of Easington, L.|
|Beaumont of Whitley, L.||Elwyn-Jones, L.|
|Birk, B.||Ennals, L.|
|Blackstone, B.||Evans of Claughton, L.|
|Bonham-Carter, L.||Ewart-Biggs, B.|
|Bottomley, L.||Falkender, B.|
|Briginshaw, L.||Fisher of Rednal, B.|
|Bruce of Donington, L.||Gallacher, L.|
|Callaghan of Cardiff, L.||Galpern, L.|
|Carmichael of Kelvingrove,||Graham of Edmonton, L. [Teller.]|
|Cledwyn of Penrhos, L.||Grey, E.|
|Cocks of Hartcliffe, L.||Hampton, L.|
|Hanworth, V.||Mulley, L.|
|Harris of Greenwich, L.||Nathan, L.|
|Hatch of Lusby, L.||Nicol, B.|
|Heycock, L.||Northfield, L.|
|Houghton of Sowerby, L.||Oram, L.|
|Howie of Troon, L.||Peston, L.|
|Hughes, L.||Phillips, B.|
|Hylton, L.||Pitt of Hampstead, L.|
|Irvine of Lairg, L.||Ponsonby of Shulbrede, L.|
|Irving of Dartford, L.||Prys-Davies, L.|
|Jacques, L.||Rea, L.|
|Jay, L.||Ripon, Bp. [Teller.]|
|Jeger, B.||Serota. B.|
|Jenkins of Hillhead, L.||Shackleton, L.|
|John-Mackie, L.||Stedman, B.|
|Kilmarnock, L.||Stewart of Fulham, L.|
|Leatherland, L.||Stoddart of Swindon, L.|
|Listowel, E.||Taylor of Blackburn, L.|
|Llewelyn-Davies of Hastoe, E||Taylor of Mansfield, L.|
|Lovell-Davis, L.||Tordoff, L.|
|McCarthy, L.||Turner of Camden, B.|
|McGregor of Durris, L.||Underhill, L.|
|Mackie of Benshie, L.||Wallace of Coslany, L.|
|McNair, L.||Wedderburn of Charlton, L.|
|Manchester, Bp.||Whaddon, L.|
|Mason of Barnsley, L.||Williams of Elvel, L.|
|Mishcon, L.||Willis, L.|
|Molloy, L.||Young of Dartington, L.|
|Alexander of Tunis, E.||Hardinge of Penshurst, L.|
|Ampthill, L.||Harmar-Nicholls, L.|
|Arran, E.||Havers, L.|
|Auckland, L.||Hertford, M.|
|Bauer, L.||Hesketh, L.|
|Beaverbrook, L.||Hives, L.|
|Belhaven and Stenton, L.||Holderness, L.|
|Beloff, L.||Home of the Hirsel, L.|
|Belstead, L.||Hooper, B.|
|Bessborough, E.||Hylton-Foster, B.|
|Blake, L.||Kimball, L.|
|Blatch, B.||Lane-Fox, B.|
|Boyd-Carpenter, L.||Lauderdale, E.|
|Brabazon of Tara, L.||Layton, L.|
|Brougham and Vaux, L.||Long, V.|
|Buckinghamshire, E.||Lurgan, L.|
|Butterworth, L.||Mackay of Clashfern, L.|
|Caccia, L.||Macleod of Borve, B.|
|Cameron of Lochbroom, L.||Manton, L.|
|Campbell of Croy, L.||Margadale, L.|
|Carnegy of Lour, B.||Marley, L.|
|Carnock, L.||Marshall of Leeds, L.|
|Clinton, L.||Merrivale, L.|
|Colville of Culross, V.||Mersey, V.|
|Constantine of Stanmore, L.||Monson, L,|
|Cottesloe, L.||Mottistone, L.|
|Cowley, E.||Mountevans, L.|
|Craigavon, V.||Mowbray and Stourton, L.|
|Craigmyle, L.||Moyne, L.|
|Crawshaw, L.||Munster, E.|
|Croft, L.||Napier and Ettrick, L.|
|Cross, V.||Nelson, E.|
|Cullen of Ashbourne, L.||Newall, L.|
|Davidson, V. [Teller.]||Norrie, L.|
|De Freyne, L.||O'Brien of Lothbury, L.|
|Denham, L. [Teller]||Orkney, E.|
|Derwent, L.||Oxfuird, V.|
|Digby, L.||Pender, L.|
|Dilhorne, V.||Penrhyn, L.|
|Donegall, M.||Peyton of Yeovil, L.|
|Dundee, E.||Polwarth, L.|
|Eccles, V.||Portsmouth, E.|
|Eden of Winton, L.||Rankeillour, L.|
|Ellenborough, L.||Reay, L.|
|Elliott of Morpeth, L.||Renton, L.|
|Ferrers, E.||Renwick, L.|
|Glenarthur, L.||Rodney, L.|
|Gray of Contin, L.||Romney, E.|
|Greenhill of Harrow, L.||St. Davids, V.|
|Greenway, L.||Salisbury, M.|
|Saltoun of Abernethy, Ly.||Teynham, L.|
|Sandford, L.||Thomas of Gwydir, L.|
|Sempill, Ly.||Thorneycroft, L.|
|Shannon, E.||Thurlow, L.|
|Sharpies, B.||Torrington, V.|
|Skelmersdale, L.||Trafford, L.|
|Stevens of Ludgate, L.||Tranmire, L.|
|Stockton, E.||Trumpington, B.|
|Strange, B.||Tryon, L.|
|Strathcona and Mount Royal, L.||Vaux of Harrowden, L.|
|Strathspey, L.||Ward of Witley, V.|
|Sudeley, L.||Weir, V.|
|Suffield, L.||Wise, L.|
|Swinfen, L.||Wolfson, L.|
|Terrington, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.43 p.m.
Lord Mishcon had given notice of his intention to move Amendment No. 3:
Page 1, line 6, at end insert ("but the immigration rules shall be so framed that men shall be no less free to enter and remain in the United Kingdom than women seeking to enter or remain in accordance with the immigration rules in force at the passing of this Act").
§ The noble Lord said: I do not wish to move this amendment since it seems to deal with exactly the same principle dealt with under Amendment No. 1, upon which the Committee has already registered its vote.
§ [Amendment No. 3 not moved.]
Lord Mishcon had given notice of his intention to move Amendments Nos. 4 and 5:
Page 1, line 6, at end insert ("but the immigration rules shall be so framed that British citizens and other persons settled in the United Kingdom shall be able to exercise in the United Kingdom the right to marry and to found a family guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms").
Page 1, line 6, at end insert (" but the immigration rules shall be so framed that members of the family of persons settled in the United Kingdom, subject to subsection (2) below, are no less free to enter and stay in the United Kingdom than the members of the family of European Community nationals entitled to enter or remain in the United Kingdom by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.
(2) Subsection (1) above shall not prohibit the immigration rules from requiring the family members to obtain entry clearance and leave to enter the United Kingdom.").
§ The noble Lord said: I propose to take a certain course as regards the next two amendments, and with the leave of the Committee I should like to explain. I believe that it may be useful between now and Report stage to have some conversations—however difficult they may be—between myself the Minister and others on our Benches who are concerned with this Bill and people elsewhere. I feel that no useful purpose would be served at Committee stage in moving the rest of the amendments under this clause. In those circumstances, I propose not to move them.
§ [Amendments Nos. 4 and 5 not moved.]
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord Mishcon
Here again, I believe that if a debate took place I should be saying exactly the same things all over again. That does not seem to me to be a useful 49 way of spending the time of the Committee on an important Bill of this kind. I do not propose to oppose this Question.
§ Clause 1 agreed to.
§ Clause 2 [Restriction on exercise of right of abode in cases of polygamy]:
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Lord Mishcon
I propose to make a short comment as I believe was made in the course of Second Reading debate. This is a provision where we presumably express our horror at polygamous marriages wherever they may take place and even if they are perfectly proper, legal and respectable in the countries in which they occur. I hope that in dealing with a situation which involves a maximum of 25 cases each year, the Committee, in passing this clause, will have in mind an improvement in our own moral standards in this country relating to marriage and divorce and many such similar issues. If we can, with sanctity, pass this clause I hope at least it will have that effect.
§ Lord Hylton
At Second Reading I suggested to the Government a basis on which they could discriminate fairly against polygamous wives if that is what they want to do. I suggested that they should make it impossible for new wives to enter this country—that is, wives who have not been married previously to the person in question. However, the second or third existing marriages of people already here could be admitted (as they might well be entitled to) under Koranic Law.
§ Lord Renton
I hope that none of the Members of the Committee has any doubts about this clause despite the fact that not very many people are affected by it. If people want to have the advantage of coming to live in our civilised society, I believe they should accept our standards. They are the standards of those who practise the Christian and Jewish religions. As regards the Moslem religion, only today I was told by a High Court judge from Pakistan that bigamy and polygamy are now unlawful in Pakistan unless the first wife gives her consent to the marriage to one other woman. It is fact that among Hindus and Moslems it has become gradually the custom that there should be monogamy among all the better Hindus and Moslems. That is a good thing that we can record.
Difficulties have been caused with the occasional polygamous marriage in this country. There was a case reported in the press over the weekend of a man from Bangladesh. He had two wives one of whom was aged 43 and the other 26. Between them they have 11 children and their ages range from just a few weeks to 19 years of age. They had to be accommodated by the local council. The man was out of work. The local council had to spend, it was said, £40,000 to enable them to have a house which was large enough. If we did not pass this clause then we would have that kind of problem magnified fairly often, I believe, despite the fact that polygamy is on the way out.
§ Lord Bonham-Carter
I wonder whether the Committee can allow that serious speech by the noble Lord, Lord Renton, to pass without comment. There is a high-and-mighty attitude that polygamy is awful and that we in this country have made it unlawful. On the other hand, multiple marriages are common and increasing; cohabitation between unmarrieds is increasing and common; one-parent families are increasing in number and are common. If we are to pretend that we are so superior to the 25 people a year who may come here—the noble Lord admits they are a diminishing number for economic as well as religious reasons—I believe we are carrying the popular idea of English hypocrisy rather too far.
The noble Lord, Lord Mishcon, made a brief intervention covering polygamy and the moral standards of this country. I do not want to add a great deal to what has been said other than to say that if we are to have immigration—and we all agree that we are—we must have certain rules. The fact is that polygamy runs counter to a monogamous society such as ours. In other countries polygamy is acceptable but in this country it has not been. When certain people come to this country it is reasonable to say to them in relation to ordinary domestic relationships that they can come in but may bring only one wife.
My noble friend Lord Renton was given a certain amount of stick by the noble Lord, Lord Bonham-Carter, for referring to a certain incident about which there was a report in the newspapers at the weekend. I saw the article too. As my noble friend quite rightly said, the gentleman concerned had two wives and 11 children. In order to accommodate his second wife the council had to spend £40,000 on increasing his accommodation. The article asked what would happen if he had a third wife. There is a limit to what one can expect local authorities and government to do and society to accept. In a monogamous society one wife is sufficient.
§ Clause 2 agreed to.
§ Clause 3 [Proof of right of abode:]
Lord Mishcon moved Amendment No. 6:
Page 2, line 42, at end insert ("A person refused entry as a result of not being able to produce such a document shall have a right of appeal at the hearing of which he shall be entitled to be present.").
§ The noble Lord said: I hope to be brief in regard to this amendment. The Committee will appreciate that Clause 3 deals with the right of an immigration officer to see that somebody whose papers are not in order can be immediately required to leave these shores without a right of appeal. This amendment asks that he shall have a right of appeal at the hearing of which he shall be entitled to be present. It is one of those amendments which speaks for itself.
§ In our judicial system we always value the right of somebody upon good grounds to be able to appeal against a decision so that he has a right to be heard. The Committee will appreciate that it is an immigration officer who has the right to order the person to leave immediately; and that there can be many cases in which either somebody has lost a 51 document or has had it stolen from him. There may be circumstances in which for good reasons the papers are not available. The Committee would not want to have such a decision made against a person endeavouring to enter this country, especially with all the liabilities on carriers under the Immigration (Carriers' Liability) Act which we recently passed.
§ Immigration officers carry out a difficult task, mostly to the best of their ability and mostly with mercy. I do not think that the Committee would want to enact a provision whereby somebody had no right to make representations thereafter if the papers were not in order where there appeared to him to be a right to argue that he had the nationality, that his papers did exist or whatever it might be. I beg to move.
§ Lord Renton
I appreciate the noble Lord's point but I wonder whether it has occurred to him that we have an elaborate and for the most part very efficiently run administration for enabling would-be immigrants to prove their right of abode before leaving the countries in which they were living. The arrangements are expensive. We bear most of the expense but would-be immigrants make a contribution. Generally the arrangements work well.
The noble Lord is saying that, in spite of having had the opportunity to establish their right in their own country, whether or not they have used it, and whether or not they have failed, they should nevertheless come here even though the unfortunate immigration officer has crowds of people to see off an aeroplane. If the officer says, "No, you don't seem to have the documentation", the noble Lord suggests that people should then have the right of appeal in this country. I make the simple point that if they did not have the documents in their own country, are they any more likely to have them when they arrive here? Should not people be encouraged to take the fullest advantage of the good arrangements that we make for them to prove their right before they leave their own country?
§ Lord Bonham-Carter
This is an important amendment. To remove a right of appeal is a serious step. The situation described by the noble Lord, Lord Renton, is not quite as idyllic as he would have us believe. The people to whom the delays mainly occur are in Bangladesh. A few years ago the delay before getting a first interview was 18 months. The delay is now about eight months, although DNA may change that. After the first interview there are further delays. During the Second Reading debate I asked the noble Earl, Lord Ferrers, whether it was the case that 100,000 letters were unopened at Lunar House. I have since discovered that there are 150,000 letters. When I last inquired, no letter that arrived in December had been opened. The beauty of our administration therefore is something which is difficult for others to comprehend. People have come here after a decision taken earlier because that is the best way in which they can overcome the delays.
The second factor is that our system of sifting in Bangladesh is not always very accurate. In 1985, 50 per cent. of all Bangladesh is applicants were refused 52 permission to enter. Of those who appealed—those who used the procedure which is being abolished—one-third were found to have been refused entry wrongly. In the face of those facts the amendment moved by the noble Lord, Lord Mishcon, is self-evidently necessary.
I agree with my noble friend Lord Renton when he says that it is reasonable for people who come to this country first to find out whether they can come here and to clear their documents. The noble Lord, Lord Bonham-Carter, said that we were removing the right of appeal. That is not so. The right of appeal is there, but the appellant should not necessarily be in this country for that appeal.
The proposed amendments do not seek to remove the requirement contained in Clause 3(1), which sets out perfectly clearly the documents required of anyone who seeks admission on the basis of their right of abode. If a passenger turns up without those documents it is perfectly proper to expect that person to pursue any appeal from abroad. What does he do? He seeks to come into the country. The immigration officer asks where his documents are, and he says, "I do not have any". It is perfectly reasonable for the immigration officer then to say. "You can't come into this country without any documents. You may say that you are somebody's wife or child but you do not have those documents".
Unless we have a completely open door it is reasonable to say to that person that he ought to return to his country and ensure that be obtains the relevant documents before coming here. Having said that, it will always be open to the immigration officer to exercise his discretion; for example, in the case of a passenger whose documents have been lost or stolen. That is the present position and it will continue.
The noble Lord, Lord Bonham-Carter, complained about delays and implied that they were intolerable. I am sure that he realises that there is an enormous number of applications for immigration purposes. Between November 1985 and October 1986 when the requirement for Bangladesh was introduced, some 1,500 mothers and children had arrived in this country seeking admission on the basis of unsubstantiated claims to citizenship. It is that very loophole that we seek to close by the provisions contained in Clause 2.
When the noble Lord says that there is too much of a delay, I wonder whether he realises that in the immigration department of the Home Office there are in fact 3,200 people who are dealing with such applications. Furthermore, it costs about £60 million per year, of which nearly £1 million goes to the United Kingdom Immigrants Advisory Service in order to help it to assist people in their appeals against refusal decisions. The appellate authorities alone cost £2.5 million. Therefore I do not think it is fair for the noble Lord to complain about a provision which says that people cannot come into this country before they have cleared the wires and at the same time to say that we have not enough people dealing with immigration.
53 Immigration will always be a difficult issue. There will always be many people involved in seeing what is right and what is not; who should come into this country and who should not. To suggest that people arriving in this country from another without any documents should be allowed to stay until their appeal is heard is pushing the boat a little bit too far.
§ 6 p.m.
§ Lord Mishcon
With great deference I do not think the Minister really knows what happens in the Home Office. I am talking about the immigration department. There are other departments in the Home Office for which the noble Earl is responsible and I am sure that he knows everything that ought to be known in their regard, but he is not responsible for immigration.
I was not going to give this personal example when we are dealing with documents which may be requested from outside, but he may wish to know the following. In regard to an immigration matter which was rather urgent I wrote to the Home Office in July of 1987 sending original documents. I received no acknowledgment to my letter. Since that time I have written on no fewer than five occasions between July 1987 and March of this year and have still not received any acknowledgment, although I have sent copies of my previous letters to the immigration department because I am rather worried about the original documents, apart from anything else.
In all sincerity I have to say to the Committee that an impossible situation has been created. If that be true—obviously I would not stand at this Dispatch Box and give those facts unless I had every reason to bring them to the Minister's and the Committee's attention—how can we possibly say that an immigration officer can send people back to their homelands, which may be thousands of miles away without any right of appeal and then say with sincerity, "Well, they can appeal from there"? What about the hardship involved? In regard to this clause no one is saying that there should not be the right to debar people whose papers are not in order from staying in this country for any good reason; we are not saying that. In those circumstances we are merely giving the right of appeal. Therefore I ask the Committee to support the amendment.
I wonder whether I heard the noble Lord correctly. He said that I did not know what was going on in the Home Office. I am bound to say to him that I do not know about every letter that is written. When he says that he has written a number of letters that have not been answered I must say that I am surprised, but I shall look into the matter.
However, he then went on to use the aforementioned example as an argument for what trouble and chaos there is within the immigration department of the Home Office. As I have already said, recently 1,500 additional people sought to come into this country without any papers at all. In this part of the Bill we seek to say, "You ought to ensure before you come here that you have the right of entry". I do not think that that requirement is unreasonable. One cannot say that the Home Office 54 is swamped with work and therefore cannot anwer letters and then at the same time say that it is perfectly all right for another 1,500 people to enter the country.
The noble Lord, then went on to say that we are taking away the right of appeal. I must stress that we are not taking away the right of appeal. The appellant still has the right of appeal, but what we say is that it is unreasonable to allow all those people to come to this country without the necessary documents and then to sit here and wait for their appeal to be heard, because inevitably that process will take a long time.
§ Lord Mishcon
I am afraid the noble Earl may have misunderstood me and if it is a want of clarification on my part then I apologise to him. I made the point that in some instances people writing from abroad to the Home Office immigration department for documentation to enable them to enter the country perfectly properly are having difficulties in receiving replies—I imagine in the same way that I have. I did not of course address those letters to Ministers; they were addressed to the immigration department of the Home Office. Indeed, the last letter I wrote—still unanswered and unacknowledged—I specially headed "For the personal attention of the Senior Officer in charge of immigration", or words to that effect. However, I have still not received an answer. The Committee will appreciate that this may well be the lot of people writing from abroad to try to obtain confirmation of matters which would satisfy an immigration officer. That was the point I was trying to make; not the chaos at the Home Office.
Regarding the right of appeal, in what I said I acknowledged that of course there is a right of appeal if you are sent away from these shores. However, my point was in connection with those people who have already been mentioned—the ones we all know about. If we say to them, "You go back thousands of miles from whence you came and then write a polite letter saying that you wish to appeal", we are placing them in an impossible situation. One would imagine by that time that every penny that the person had would already have gone down the drain and then of course he would have to satisfy the Home Office that he had sufficient means left to return to this country. That is a completely unjust situation. We are asking for the right of appeal but obviously if the appeal is turned down that person must leave forthwith. We also ask that that right of appeal should be accompanied by a right to conduct such an appeal on these shores; if it fails I accept the fact that that person has to leave immediately.
§ Lord Renton
Let us suppose that the person concerned has done his or her best in the country of origin and has hopefully produced all the documents that he or she could lay their hands on. Is the noble Lord suggesting that, after the case has been carefully considered by our representatives, such a person should still be allowed to enter this country with no better documents than he had before and then to have a right of appeal?
§ Lord Mishcon
I cannot deal with every case, and then say that a person should or should not have a right of appeal. There will be deserving cases, and I 55 have tried to give instances of them. There will be undeserving cases. I hope that the deserving cases will win their appeals. The undeserving cases will lose their appeals. People will know in advance that if they do not satisfy the immigration officer and the appellate tribunal they will have to leave immediately. Where is the hardship from the Government's point of view, as against the hardship of the person whom I am trying to put before the Committee as a deserving case?
§ Lord Renton
The hardship may not be that of the Government. The hardship may be that of the British people, because as I think the noble Lord, Lord Bonham-Carter, said, in Bangladesh there are 100,000 people waiting to have their cases heard. I wonder whether he would explain what he said.
§ Lord Bonham-Carter
I made no estimate of the number of people who were in Bangladesh waiting to come in. I think I am right in saying—it has been said by some people—that the figure is 9,000. I do not know where that figure came from. I did not mention 100,000. I do not know where the noble Lord found that figure.
§ Lord Renton
I apologise to the noble Lord. I obviously misheard him. One does not always get things absolutely right across the Chamber.
If I may interrupt, my noble friend did not mishear. He heard the noble Lord, Lord Bonham-Carter, perfectly. He said that there were 100,000 letters, but his criticism was that the letters were in the Home Office.
§ Lord Bonham-Carter
I was informed that there were 100,000 letters in the Home Office. Subsequently I was informed that the figure was 150,000. They are not all applicants. Like the noble Lord, Lord Mishcon, they may have had to write five, 10 or 15 times and have never received an answer.
§ Lord Renton
If there are 100,000 or 150,000 letters in the Home Office, they are presumably a reflection of the desire of 100,000 or 150,000 people, or a portion of them, to come here. That is mass migration.
Whether it is 100,000, as it was last week, or 150,000, as it is this week—it may be 200,000 next week if the noble Lord, Lord Bonham-Carter, makes a speech—I am not prepared to comment on the accuracy of the figures. He is right. There is enormous pressure on the Home Office immigration department. The noble Lord, Lord Mishcon, said that he had not received an answer to his letters. I regret that fact. I know that this was not the purpose of his raising the point, but if he would be kind enough to send me a copy of the last letter that he sent, I shall see that it is followed through, and I shall find out what has happened. However, I accept that that is, as the lawyers would say, de minimis to the noble Lord's argument.
56 The noble Lord was concerned with seeing that people who come from abroad should not be sent back. Those abroad who wish to come here do not write to the Home Office. They should first approach the entry clearance officer at the High Commission of the country in which they are living. That is where the application should be made. That is where the confirmation of their right to enter should come from.
If people come here, and are discovered not to have the appropriate documentation, the appeal is held in this country. I think that the noble Lord, Lord Mishcon, was under a misapprehension. The appeal is not held in another country.
I thought that the noble Lord said that it was right that there should be an appeal in this country. I seem totally to have horrified him. I thought he said that it is right that an appeal should be held in this country. An appeal is held and will be held in this country. There is an enormous amount of paperwork within the Home Office, a great deal of which refers to appeals, and one should say to people: "Get your documentation in order before you come here".
§ Lord Mishcon
I shall make two rapid points. I shall then have exhausted the Committee's patience, and I shall make no further points. The noble Earl has not covered the case—I know him well enough to know that it would grieve him if he came across it—of a man who had genuinely had his papers stolen from him in the course of a voyage—not an unlikely event, as other people would want papers and would want to use them for a nefarious end—and who heard that an immigration officer did not believe him and sent him all the way back without a right of appeal. I wonder what guilt the noble Earl would feel over the fact that the appeal provisions were not contained in the Bill.
Secondly, I am sorry if I did not make myself clear, but I said that of course I realised that there was a right of appeal. I said that unless the appellant was given the right to conduct it in this country, he would have to go all the way back and make his appeal from abroad. Of course it will be dealt with in the United Kingdom. He would then presumably be so impoverished that he would not be able to satisfy the proper requirement of having sufficient means to maintain himself or his family in this country.
It is purely the right of appeal for which we are asking in the amendment. I hope that the Committee will agree to it even if the noble Earl does not.
At the risk of boring the Committee, the noble Lord, Lord Mishcon, said that he did not wish to make another intervention. Of course I understand the difficulty of the case which the noble Lord has mentioned. He said that a person coming to this country who lost his passport or papers on the way would be turned around. I shall make just two points. First, immigration officers have the right to use reasonable discretion. Of course it may well be, as the noble Lord pointed out in that case, that the 57 discretion is not used; but that is the point of having discretion. Sometimes it goes one way and sometimes another.
One has a great deal of sympathy with such cases, but the noble Lord, as an experienced lawyer, knows that hard cases make bad law.
§ 6.17 p.m.
§ On Question, Whether the said amendment (No. 6) shall be agreed to?
§ Their Lordships divided: Contents, 79, Not-Contents, 121.58
|DIVISION NO. 3|
|Airedale, L.||Jenkins of Hillhead, L.|
|Ardwick, L.||John-Mackie, L.|
|Aylestone, L.||Listowel, E.|
|Beaumont of Whitley, L.||Llewelyn-Davies of Hastoe, B|
|Birk, B.||Lovell-Davis, L.|
|Blackstone, B.||Mackie of Benshie, L.|
|Bonham-Carter, L.||McNair, L.|
|Botlomley, L.||Manchester, Bp.|
|Briginshaw, L.||Mason of Barnsley, L.|
|Brooks of Tremorfa, L.||Milner of Leeds, L.|
|Bruce of Donington, L.||Mishcon, L.|
|Callaghan of Cardiff, L.||Molloy, L.|
|Carmichael of Kelvingrove, I||Mulley. L.|
|Carter. L.||Nicol, B. [Teller.]|
|Cledwyn of Penrhos, L.||O'Neill of the Maine, L.|
|Cocks of Hartcliffe, L.||Oram, L.|
|David. B.||Parry, L.|
|Davies of Penrhys, L.||Peston, L.|
|Dean of Beswick, L.||Phillips, B.|
|Donoughue, L.||Pitt of Hampstead, L.|
|Dormand of Easington, L.||Ponsonby of Shulbrede, L. [Teller]|
|Ewart-Biggs, B.||Prys-Davies, L.|
|Falkender, B.||Ripon, Bp.|
|Foot, L.||Russell of Liverpool, L.|
|Gallacher, L.||Serota, B.|
|Galpern, L.||Shackleton, L.|
|Graham of Edmonton, L.||Stedman, B.|
|Grey, E.||Stewart of Fulham, L.|
|Hanworth, V.||Stoddart of Swindon, L.|
|Harris of Greenwich, L.||Strabolgi, L.|
|Heycock, L.||Taylor of Mansfield, L.|
|Houghton of Sowerby, L.||Tordoff, L.|
|Hughes, L.||Turner of Camden, B.|
|Hylton, L.||Underhill, L.|
|Irvine of Lairg, L.||Wallace of Coslany, L.|
|Irving of Dartford, L.||Wedderburn of Charlton, L.|
|Jacques, L.||Williams of Elvel, L.|
|Jay, L.||Willis, L.|
|Jeger, B.||Young of Dartington, L.|
|Arran, E.||Carnegy of Lour, B.|
|Auckland, L.||Carnock, L.|
|Beaverbrook, L.||Clinton, L.|
|Belhaven and Stenton, L.||Colwyn, L.|
|Beloff, L.||Constantine of Stanmore, L.|
|Belstead, L.||Cottesloe, L.|
|Bessborough, E.||Cowley, E.|
|Blake, L.||Craigavon, V.|
|Blatch, B.||Craigmyle, L.|
|Boardman, L.||Croft, L.|
|Boyd-Carpenter, L.||Cross, V.|
|Brabazon of Tara, L.||Davidson, V. [Teller.]|
|Brougham and Vaux, L.||De Freyne, L.|
|Butterworth. L.||Denham, L. [Teller]|
|Caccia, L.||Derwent, L.|
|Cameron of Lochbroom, L.||Dilhorne, V.|
|Campbell of Croy, L.||Donegall, M.|
|Dundee, E.||Newall, L.|
|Eccles, V.||Norrie, L.|
|Eden of Winton, L.||Onslow, E.|
|Elliott of Morpeth, L.||Orkney, E.|
|Faithfull, B.||Pender, L.|
|Ferrers, E.||Penrhyn, L.|
|Glenarthur, L.||Peyton of Yeovil, L.|
|Gray of Contin, L.||Polwarth, L.|
|Greenway, L.||Portsmouth, E.|
|Hanson, L.||Rankeillour, L.|
|Hardinge of Penshurst, L.||Reay, L.|
|Harmar-Nicholls, L.||Renton, L.|
|Harvington, L.||Renwick, L.|
|Havers, L.||Rodney, L.|
|Hertford, M.||Saltoun of Abernethy, Ly|
|Hesketh, L.||Sandford, L.|
|Hives, L.||Shannon, E.|
|Holderness, L.||Sharples, B.|
|Home of the Hirsel, L.||Skelmersdale, L.|
|Hooper, B.||Slim, V.|
|Hylton-Foster, B.||Stevens of Ludgate, L.|
|Kaberry of Adel, L.||Stockton, E.|
|Killearn, L.||Strange, B.|
|Kimball, L.||Strathclyde, L.|
|Kinloss, Ly.||Sudeley, L.|
|Lane-Fox, B.||Suffield, L.|
|Lauderdale, E.||Swinfen, L.|
|Layton, L.||Terrington, L.|
|Lindsey and Abingdon, E.||Teynham, L.|
|Long, V.||Thomas of Gwydir, L.|
|Lurgan, L.||Thurlow, L.|
|Mackay of Clashfern, L.||Trafford, L.|
|Margadale, L.||Tranmire, L.|
|Marley, L.||Trumpington, B.|
|Marshall of Leeds, L.||Vaux of Harrowden, L.|
|Merrivale, L.||Waldegrave, E.|
|Mersey, V.||Ward of Witley, V.|
|Molson, L,||Weir, V.|
|Mottistone, L.||Whitelaw, V.|
|Mountevans, L.||Wise, L.|
|Mowbray and Stourton, L.||Wolfson, L.|
|Moyne, L.||Wyatt of Weeford, L.|
|Munster, E.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendments Nos. 7 and 8 not moved.]
§ Clause 3 agreed to.
§ Clause 4 [Restricted right of appeal against deportation in cases of breach of limited leave]:
§ 6.25 p.m.
Lord Elwyn-Jones moved Amendment No. 9:
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: Clause 4 has been fiercely condemned by lawyers, by those concerned with civil rights and by those faced with the problems of advising on immigration questions. It involves considerable interference with the right of appeal against deportation. Deportation is an extremely serious matter which can involve the infringement of human and civil rights—for example, the right to family life, the loss of a job and of course the loss of a home. We are dealing with a provision in Clause 4 which gives unprecedented powers to the Home Secretary. Contrary to all the trends in public law, certainly since the 1950s, it gives him pretty well absolute powers. The trend has been to provide checks on the administrative powers of the executive, 59 for instance, in social security and mental health tribunals and in other domains.
I shall also speak to Amendment No. 10. These two amendments seek to mitigate at any rate some of the damage that Clause 4 would create if it became law. After the initial paragraph restricting the right of appeal against deportation in cases of breach of limited leave, the clause provides that a person to whom the subsection applies shall not be entitled to appeal under Section 15 of the principal Act:
except on the ground that on the facts of his case there is in law no power to make the deportation order".
The amendment which I am moving proposes to add:
or on the ground that he has a spouse, parent or child settled in the United Kingdom and that deportation is not therefore appropriate".
One would have thought that that was a simple, humane and humanitarian consideration, and I shall be greatly disappointed if the Government do not accept it.
§ It is proposed that where a person threatened with deportation can show, as the amendment says, that he has a spouse, parent or child settled here and deportation is not therefore appropriate, adjudicators hearing a deportation appeal would be enabled to take into account that fact—namely, the presence in the United Kingdom of close relatives of the person who is threatened with deportation. One can think of many examples of persons who might benefit from that: for instance, a child who has not been allowed to stay here permanently with his mother because she has not been able to prove that she had sole responsibility for his upbringing; or elderly parents not allowed to stay with their children in Britain because they are alleged to have other relatives to turn to in their own country; or spouses refused permission to stay because the breadwinner in the family has become unemployed and the couple are therefore reliant on public funds. In such cases as that it would seem at the very least humane to provide that those concerned can call in aid the availability of the family and the disaster that would flow from a forced division of the family.
§ I hope therefore that, looking at the matter from the point of view of simple, ordinary, straightforward humanity the Government will feel disposed to accept this amendment.
§ 6.30 p.m.
§ Lord Renton
Will the noble and learned Lord be so good as to say whether in the context of this amendment the word "child" means somebody under the age of 18 or not?
§ Lord Elwyn-Jones
I have not given thought to the matter directly but I am content that that should be the case.
§ Lord Renton
I am much obliged to the noble and learned Lord. On the face of it, when one saw this amendment one naturally had some sympathy with it on humanitarian grounds as the noble and learned Lord has said. But, alas, not all families are well united, even those who come here and settle. Without much exercise of the imagination, one can, for 60 example, imagine a spouse who has behaved badly towards his own family or who has failed to maintain them. He may then go on to commit other crimes. He may not have been in this country for very long. Yet, although that may be a clear case for deportation under the terms of this amendment, as I understand it deportation could not take place.
I remember a case of a married man who was living in this country—one might assume that he was settled here—who took unto himself a mistress and proceeded to murder her. This is a reported case that occurred some years ago. The court sentenced the man to imprisonment for life in this country and at the same time felt obliged to issue a deportation order that would have enabled the Secretary of State instead of holding the man indefinitely in prison in this country to make, after a number of years or perhaps fairly soon, a deportation order and send the man back to his own country.
That to my mind would be a case in which deportation would be fully justified. One could multiply the examples. This amendment would cover even those cases which are entirely without merit. One does not know whether that is the intention of the amendment but it would do so. Therefore I would have very grave doubt as to whether my noble friend could accept it.
§ Lord Bonham-Carter
I wish to support the amendment which was moved by the noble and learned Lord, Lord Elwyn-Jones. I have listened as usual with great interest to what the noble Lord, Lord Renton, has said. He is in a particularly fanciful and imaginative mood tonight. I listened to one speech after another in which he produced successive rabbits out of a hat. Of course one can produce cases in which deportation is justified. As I understand the amendment—I shall be corrected if I have misunderstood it—it does not state that there are no circumstances under which someone should be deported. It states that people should be allowed to appeal against deportation.
We regard deportation as a very serious step to take against an individual. We regard it as even more serious if that person has a spouse or children and is established and has roots here. But there may be cases in which it is shown that this has to happen.
What we object to is the discretion for deportation being placed in the hands of the Home Secretary alone. That is an absolutely unwarrantable concentration of power, which, as the noble and learned Lord, Lord Elwyn-Jones, has said, runs contrary to all the trends of administrative law this century—something with which the noble Lord, Lord Renton, will be much more familiar than I—which indicate that the appeal system produces better decisions and a better level of justice than systems without such a mechanism. Hence we have industrial tribunals, health tribunals and other tribunals, all of which are there to assist and improve the decision-making process and to allow appeal from the adjudicator.
The general reservation about Clause 4 is that it removes the right to appeal on compassionate grounds. It can only be done on the facts of the case.
61 It is sometimes argued that the adjudicator can take compassionate grounds into account. I must here say that the occasions on which adjudicators do take compassionate grounds into account are extremely rare. The chief adjudication officer, Mr. Patey, has stated pretty clearly that he does not regard that as their function.
It therefore remains that compassionate grounds are largely removed by this clause as a source of appeal. As has, I think, been indicated already, there are many cases in which those grounds should be taken into account. I do not think that there is much that can be added to the self-evident strength of the case which the noble and learned Lord, Lord Elwyn-Jones, has produced, but I wish to remind the Minister that the whole basis of our immigration control system was founded on a report written by the late Sir Roy Wilson, who was an extremely distinguished lawyer and a man with an unmatched sense of justice. He wrote in Cmnd. 3387:Given our recommendation in favour of an appeal against exclusion, the case for an appeal against deportation, which involves a much greater interference with a person's liberty, is correspondingly stronger. Most systems of immigration control about which we have information seem to provide a person at risk of deportation with some form of appeal".I think that if this clause were passed without amendment it would be an extremely retrograde action.
§ The Lord Bishop of Ripon
My understanding of this amendment is similar to that of the noble Lord, Lord Bonham-Carter—that it concerns the right of appeal. I understood from the speech of the Minister on Second Reading that there was a possibility that certain groups of people could be excepted from the effects of the Immigration Bill as it stands and of the removal of the power to appeal. But I also understood that it was likely that such groups would be those who were asylum seekers or refugees.
This particular amendment seeks not only to establish another group but also to make sure that the category is established in statute and is not reliant simply upon an order of the Home Secretary. I would wish to argue on similar grounds to other Members of the Committee that there is at stake here a question of humanity and the treatment of families.
I shall give what may be regarded as yet another rabbit out of the hat—another illustrative example. This is intended not to be a hard case but to illustrate the kind of case that one might expect to arise in this country—a case which will not merit any consideration if this Bill is passed.
Let us suppose a male student has been here for a year and he meets a woman on his course whom he marries. She is a British citizen, having been born here, and they have two children, both of whom become British citizens. The man has left his passport with the college. The college has failed to make an application to the Home Office for a student extension to extend the student's first degree course to a postgraduate course. The student is therefore an overstayer. The Home Office treats him as such and decides to deport him. He has no appeal on the grounds of the case that he is married with two children. He can appeal only on the facts of the case, 62 which seem to be fairly clear; he is an overstayer and is therefore liable to be deported.
The amendment seeks to put into statute the possibility that such a person may appeal on compassionate grounds as well as on the grounds of the facts of the case. That requirement for a possible hearing of compassionate grounds is important. The noble Lord, Lord Bonham-Carter, has made the point that adjudicators are not normally expected and I believe are excluded by law from taking compassionate grounds into account. Although it has been said by the Home Office that adjudicators occasionally take such grounds into account, it is surely an odd situation which allows the hearing of compassionate grounds to depend upon the particular adjudicator taking the case. Some adjudicators will hear compassionate grounds; the majority will not. The amendment seeks to put into statute form the right of appeal on compassionate grounds and particularly those relating to families.
§ Lord Irvine of Lairg
Perhaps I may add a word or two. When I heard the objections of the noble Lord, Lord Renton, to the amendment, I was reminded of Professor Cornford's academica cosmographia —there is always logically an infinite number of reasons for saying no to any new and sensible suggestion. The argument put forward by the noble Lord is, when generalised, that a new discretion should never be conferred because it is possible that is could be exercised wrongly.
I should have thought that it is inconceivable that an adjudication officer would exercise the discretion which is intended to be conferred on him by the amendment in any case where there was not either a settled family relationship between the would-be deportee and the spouse, parent or child settled in the United Kingdom, or where there was no current relationship of real ties and affection between the would-be deportee and any of those persons. Surely it is a wise discretion with which to clothe the adjudication officer.
§ 6.45 p.m.
The noble Lord, Lord Bonham-Carter, said that an appeal against deportation should be allowed. Let us be clear on that matter. There is an appeal against deportation. Before such a thing happens, there will have been previous appeals, possibly for the right of extension. Let us also be clear that we are discussing people who have broken the law, for whatever reason. Clause 4 restricts the right of a person to pray in aid at appeal the compassionate circumstances of his case where he has been in the United Kingdom for fewer than seven years. We do not believe that those who have been here for such a relatively short time will have developed sufficiently strong ties with this country as to outweigh the public interest of seeking the deportation of those who, let us face it, have committed a serious offence. They have broken the law and they have stayed in this country against the law.
In the view of the Government, it is perfectly appropriate that the appeals of those with only short 63 residence should be limited to the facts of the case. 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. Clearly there will be some deserving cases in which we should not seek to pursue deportation. Deportation is the very last step. What we are saying now is that those compassionate circumstances cannot be used as an argument in an appeal. The appeal is the matter which we are considering.
The right reverend Prelate gave an example of a person who had overstayed. Perhaps I may follow that with a similar analogy. I referred at Second Reading to the fact that where a person has had his application for an extension of residence refused for whatever reason that person has a right of appeal. The matter will go to an adjudicator. The adjudicator may determine it formally on the basis of the rules and the appeal may be dismissed. The appellant can then appeal again to the Immigration Appeals Tribunal. It may be that the application will again be dismissed because the case does not raise a point of law and the facts are not in dispute. The passenger may be informed that he has no basis for being allowed to stay in the United Kingdom and be advised to leave.
If the passenger continues to refuse to leave, a decision is then taken to deport him and a notice of intention to deport is served on him. That passenger or student has a right to appeal against the deportation order. When the matter gets to that stage, all the compassionate circumstances in the case will be known and the points on which the adjudicator or the appeals tribunal is bound to make its decision are the facts of the case. The question will be whether or not he has broken the law.
We believe that it would be wrong for appellate authorities to be asked to let compassionate matters outweigh the fact of whether the law has been broken. The facts of the case will be known and there will always be the possibility of recommendations being made. When the final order is signed by my right honourable friend, he will of course take into account any compassionate circumstances.
We are saying that there is a right of appeal; but that appeal against deportation, when all the other processes have been gone through, should be on the facts of the case because the compassionate circumstances will be well known.
§ Lord Mishcon
Perhaps the noble Earl can assist the Committee in this way. One of the difficulties that we face is that on investigation one finds that some adjudicators go into compassionate grounds and make recommendations while others do not. That leads to some confusion as to the rights of adjudicators. Perhaps a solution would be for us not to press the amendment at this stage and for the noble Earl to give consideration to some consistency of ruling as regards adjudicators, as to whether or not one encourages them to make recommendations. If they are permitted to make recommendations, perhaps that could be made universal. If the noble Earl will say that he will look into the position, I do 64 not think that we shall press the amendment. I ask for consideration to be given to such a course between now and Report stage
The noble Lord is deceptively modest in his requirements. Of course I shall consider the matter. There is no inhibition on adjudicators to make recommendations; they are entitled to make recommendations. There is no inhibition on people putting whatever they like in front of an adjudicator. However, when it comes to the final question of whether or not a person is to be deported, it must be the facts which will be the basis on which the adjudicator or tribunal takes a position. I shall look at the points which the noble Lord has made.
§ Lord Mishcon
I am most grateful to the noble Earl. It is not a question of whether or not adjudicators should be inhibited. There should be a clarification of general practice. However, the noble Earl has said that he will look into the matter. In those circumstances, I believe I am right in saying that my noble and learned friend is prepared to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elwyn-Jones moved Amendment No. 10:
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 and learned Lord said: Without blowing personal trumpets, this is also a very important amendment because it introduces into consideration of deportation the potential consequences. As an addition to subsection (1), after the words "notice of the decision", it provides for an appeal on the ground that the person concerned:
has a well-founded fear of persecution in the country to which he is to be deported on the grounds of race, religion, nationality, membership of a social group or political opinion".
§ The amendment would ensure that adjudicators were able to receive evidence that an appellant was a refugee who should be granted asylum in the United Kingdom. This is an amendment of enormous importance to refugees and I know that there is a very great public concern and interest in the matter. The wording of the amendment reflects the wording of no less than the 1951 United Nations Convention on the Status of Refugees and the protocol to that convention. This country is a signatory to the convention, which prohibits removal of any person to a country or territory where he has a well-founded fear of persecution. That is a well-known term and condition.
§ Although in some cases an appellant may already have claimed asylum in the course of an earlier appeal against a refusal to vary leave to remain, it is often the case that by the time a decision to deport is made new evidence has come to light or circumstances in the person's own country have changed. In those circumstances an appeal against deportation is the only way in which such matters can be subject to independent scrutiny. There may well be some indication of the Minister's willingness to make an order pursuant to subsection (3) of the Bill exempting 65 refugees from the effect of Clause 4. Of course we do not know what the terms of such an exemption would be. It is our view that Parliament could not be satisfied that those in fear of persecution would be entitled to rely upon the opportunity to appeal on the ground of a possible use by the Minister of his power under subsection (3).
§ For example, the exempting order may refer only to persons already recognised as refugees or only to those claiming refugee status within a certain time. I venture to think that the amendment is one of the most important in this very important Bill affecting the liberty of the subject and the sense of security of thousands of people in different parts of the world. Very often the degree of civilisation of a country may be judged on the way it treats refugees and its approach to them. The amendment I move would ensure that the refugee's right to appeal is protected by statute and not dependent on an executive order that can be changed or removed by the Secretary of State on the grounds of administrative or possibly mere political convenience. The view that Parliament takes in regard to this important matter will determine how the attitudes of Parliament and this country towards refugees are judged. It would be a grave backward step in our standing in the world if we were to say no to this amendment. I beg to move.
§ Lord Renton
It gives me pleasure to be in agreement with the noble and learned Lord for once, and I think for the first time on this Bill. He has made a very important point. It is something that should be dealt with in substance and I lean towards the view that it may be better written into statute than left to be dealt with in any other way. I say that subject to whatever may be said by my noble friend Lord Ferrers, who may have better ideas on this than any of us.
§ Lord Hylton
I rise to support the amendment. As I said at Second Reading, the passing of the Immigration (Carriers' Liability) Act last year, followed rather swiftly by this Bill, has given rise to suspicions that the Government are not adhering to their traditional policy with regard to asylum seekers. Therefore I was extremely glad that the noble Earl, Lord Ferrers, said in winding up at Second Reading that:We remain committed to fulfilling our obligations under the 1951 United Nations convention and preserving our tradition of offering hospitality to the genuine refugee".—[Official Report, 4/3/88; col. 401.]Those were reassuring words but I am sorry to say that the actions of the Government last year were not at all encouraging. First, the Home Secretary said that asylum applicants could not in future expect that they would necessarily be referred to the United Kingdom Immigrants Advisory Service. Secondly, he went on to say that nor would their removal necessarily be deferred while a Member of Parliament made representations on their behalf, nor, if they challenged court decisions to refuse asylum, would they automatically be allowed to stay in the UK until proceedings were completed. That is what makes many of us think that the safety net which until last year underpinned asylum seekers was being snipped away.
66 Perhaps I should remind the Committee that since 1980 asylum applications have averaged about 3,800 per year. On the other hand grants of refugee status and therefore permanent permission to stay have been falling steadily since 1982, while the number of cases where exceptional leave to remain was given have been rising. It is those people who are touched by this amendment.
I very much hope that the Government will study very carefully, take on board and if possible put into practice what has been suggested by the British Council for Aid to Refugees in a document which it issued in January of this year concerning a code of practice for asylum seekers and in particular for an asylum review board. I support the amendment.
§ The Lord Bishop of Ripon
I was delighted to hear the support of the noble Lord, Lord Renton, for the amendment. I should like to expand on one point which was made by the noble and learned Lord, Lord Elwyn-Jones, in commending the amendment. It relates to the circumstances pertaining to the country from which a refugee may have come. Those circumstances may change very quickly and it may sometimes be rather difficult to know exactly what they are.
My experience relates to the country of Sri Lanka, in which I have lived and which I feel I know very well. Yet I have very great difficulty in discerning precisely the danger to particular members of that community while they are in this country considering possible return. Bearing in mind that circumstances can change very quickly and what may be fairly obvious at one moment may change very rapidly at a later moment, it seems to me that the safety net of an appeal is essential if some grave mistakes are not to be made.
§ Lord McNair
The amendment has been movingly and lucidly moved by the noble and learned Lord and supported by the right reverend Prelate and the noble Lord, Lord Hylton, and, I was delighted to hear, by the noble Lord, Lord Renton. There is not very much more to say, but, when matters of such profound importance are under discussion involving the most fundamental human rights and quite possibly human lives, I hope that I may be allowed a minute or two of the Committee's time. As the noble and learned Lord said, the amendment was carefully worded in such a way as to remind us of our obligations under the 1951 international convention. Those are obligations that we voluntarily, willingly and, I hope, enthusiastically undertook.
We are constantly being reassured by Ministers in a non-legislative way—as we were at Second Reading by the noble Earl—that we still feel bound in honour by those obligations, so one wonders why the Government are so reluctant ever to reaffirm in legislation our adherence to the convention. I hope that perhaps this evening may prove to be an exception.
If a person who has thrown himself on our mercy is threatened with deportation to a named country in which he has a well-founded fear that he may be persecuted on grounds of race, religion, nationality, 67 membership of a social group or political opinion, can any noble Lord decently maintain that he should not be given a chance to argue that case before the appropriate authority and to argue it before being sent to the country that he is frightened to enter? I very much hope that this is one amendment to which the noble Earl will respond sympathetically. In so doing he can only enhance the high regard in which he is held.
§ 7 p.m.
§ Lord Bonham-Carter
Perhaps I may add a few very brief words to the powerful plea of my noble friend Lord McNair on this extremely important issue. I think that the Committee should be reminded of how long the tradition of asylum has existed in this country and how fiercely it has been maintained. The noble Earl, Lord Ferrers, and his colleagues on the opposite Benches therefore have a duty to uphold that tradition as one which is of very long standing. I should like to remind the Committee that in 1858 a bomb which had written on it "Made in Birmingham" was thrown at Napoleon III. That attack was believed to have been part of a conspiracy by a follower of Mazzini called Orsini, who was resident in this country. There were demands that he should be extradited and the Foreign Office was genuinely alarmed that there might be conflict between this country and France if something was not done. Lord Palmerston was then in office and he tried to do something about it, but his government were defeated, and Lord Derby succeeded him. That gives some indication of how attached people were to the tradition of asylum and their behaviour shows how the Conservative Party actually benefited from a breach of it.
The noble and learned Lord, Lord Elwyn-Jones, said that this was a very important amendment and I agree. As has been said from all sides of the Committee, it refers 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. Clause 4(2) states that this: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".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 that with which 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. In our view it is better to do it in that way than by legislation, because it enables us to consider the addition of other categories if that is warranted at some future date. As 68 it is, my right honourable friend has indicated in another place that the order will also safeguard, for instance, the rights of appeal of those who, during the currency of their existing leave, go for a short trip abroad. For that reason it is our view that this matter is best dealt with by order. An order enables us to add other people whom it may be desirable to include, and is preferable to putting a provision in the Bill.
§ Lord Elwyn-Jones
Can the noble Earl give an assurance that we shall see the form and content of the order before the Bill leaves this Chamber? I may say that in this matter this Chamber has a very special place and responsibility. If the noble Earl is able to give that undertaking, I shall certainly be prepared to wait until such time as we see the order and not put the matter to the Committee at this stage. Can the noble Earl give that assurance? I detect that other Members of the Committee are of the same inclination.
§ Lord Harris of Greenwich
I think a very important point has been raised; namely, it is clearly necessary for us to see the terms of the order before this Bill leaves this Chamber if we are being invited by the noble Earl (as we are) to leave this matter entirely in the hands of the Government.
I note that this order will in fact not be in the affirmative form but be subject to the negative resolution procedure and that, if anything, intensifies one's anxieties. I hope that the noble Earl will be able to deal with this point now.
I shall certainly find out whether it is possible to give noble Lords the terms of the order before the Bill leaves this House. Should that not be so for some reason, I shall certainly consider the points that have been made this evening to see whether there are ways in which this amendment could be incorporated. As I said, I do not think that there is anything between us on this point.
The noble and learned Lord was quite right to ask to see the order or to suggest coming back on Report with a similar idea. I shall ensure that he has one of those two options; alternatively I may be able to take the view of the Committee this evening and see whether we can do anything at the Report stage. I should prefer to leave the matter there and I shall contact the noble and learned Lord. I shall make sure that the point that he has put forward is taken with great sincerity.
§ Lord Elwyn-Jones
Does that mean that we shall have that intimation before the Report stage of the Bill, because that will be a critical point so far as this Chamber is concerned?
I shall undertake to consider the implications of what the noble and learned Lord has said this evening. I shall consider whether it is possible to obtain that information before the Report stage. If it is not possible I shall let the noble and learned Lord know and he will be able to make up his own mind whether to return to the matter at the Report stage.
§ Lord Elwyn-Jones
I am most grateful to the noble Earl. In those circumstances I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elwyn-Jones had given notice of his intention to move Amendments Nos. 11 and 12:
Page 3, line 19, leave out ("seven") and insert ("three")
Page 3, line 24, leave out from ("to") to ("House") in line 25 and insert ("approval by a resolution of each").
§ The noble and learned Lord said: In view of the lateness of the hour and the inconvenience of the alternative, Amendments Nos. 11 and 12 are not moved.
§ [Amendments Nos. 11 and 12 not moved.]
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Lord Elwyn-Jones
I am not sure that I should say "Content" but my Motion expressing the intention to oppose the Question is not moved. I do not know whether it makes a great deal of difference.
§ Clause 4 agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.