HL Deb 22 March 1988 vol 495 cc113-62

4.9 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord Mishcon moved Amendment No. 13: After Clause 4, insert the following new clause:

("Recommendation of adjudicator.

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

The noble Lord said: Perhaps I may be permitted to remind the Committee of the provisions of Section 19 of the principal Act, the Immigration Act 1971. It is very material to the amendment, which I ask the Committee to consider as being important and necessary to the Bill.

The section provides that an adjudicator, on an appeal under the relevant part of the Act, shall allow the appeal if he considers certain matters. Paragraph (b) of the section then states: in any other case, shall dismiss the appeal". That means that there are very narrow grounds, which do not by any means necessarily include compassionate grounds, upon which an adjudicator can allow an appeal made before him. If he is in any doubt about his position he must dismiss the appeal.

There has been considerable confusion as to whether or not it should be an adjudicator's proper practice to make a recommendation to the Secretary of State if he finds compassionate grounds but not other grounds strictly laid down within the rules. I have not the slightest doubt—and this was said in another place—that when the adjudicator makes such a recommendation outside the immigration rules on which he is ruling the Secretary of State would give it the most positive and sympathetic consideration.

In Standing Committee, the other place was given the impression that it was the common practice of adjudicators to make recommendations of mercy on compassionate grounds where that was applicable. One knows from the repute of the Minister that, obviously, that impression was sincerely, if mistakenly, given. When the Minister made that statement, which, obviously, had a great effect on the Standing Committee, representations were made to him by the general secretary of the Joint Council for the Welfare of Immigrants, the director of the United Kingdom Immigrants Advisory Service, and the president of the Immigration Law Practitioners Association.

With the Committee's permission I shall read from their letter to the Minister, Mr. Renton: It is true of course that the appellant authorities are free to make whatever recommendations they choose outside the immigration rules and that particularly in the past adjudicators have sometimes felt that they ought to recommend that an applicant who fails to satisfy the requirements of the rules and whose appeal is therefore bound to fail should nevertheless be favourably considered by the Home Secretary exceptionally on compassionate grounds. But that is emphatically not common practice now. The Director of UKIAS estimates that of the many hundreds of appeals he has dealt with over the last three years in only one such appeal did an adjudicator make a recommendation which was accepted by the Home Office. Perhaps due to the increasing formality and legalism of the appeal system it is the experience of all our organisations that such matters are now rarely ventilated in variation appeals. Adjudicators may be unwilling to hear them and are unlikely to make a firm recommendation. Representatives are therefore unlikely even to advance such circumstances. The chief adjudicator, Mr. Patey, in the case of Mottsa Shari last year"— —and the number of that appeal, with which I need not trouble the Committee, is given— made it clear that he did not consider a variation appeal to be the appropriate place to make recommendations based on exceptional circumstances outside the immigration rules".

Then, there is a short quotation from what the chief adjudicator said, which is as follows: I am in no doubt that the Secretary of State will give full consideration to any representations made on the appellant's behalf for her case to be reviewed exceptionally outside the immigration rules but I do not consider that it would be appropriate for me to make any recommendations. Such matters could well become at issue in any subsequent appeal proceedings in the event of the Secretary of State taking steps to effect the appellant's departure.".

As I say, the position is one of confusion and certainly lacking in uniformity. Some adjudicators make recommendations. Others feel that it is no part of their job to do so. The chief adjudicator himself feels that it is no part of his job. Quite obviously, his guidance will be taken by other adjudicators. I believe that it would be the Committee's wish, as, indeed, it apparently was the wish of the Minister in another place, that adjudicators should in appropriate circumstances make recommendations to him where there are compassionate grounds outside the rules.

All that we therefore ask for is that the amendment should form part of the Bill so that adjudicators know where they stand. The Committee will have provided for a procedure to become uniform, which is obviously desirable. I beg to move.

4.15 p.m.

Lord Hylton

I assume that the compassionate grounds and special circumstances referred to could include family reunions about which many Members of the Committee are concerned and about which the Government are also concerned as they have shown in agreeing to admit 452 Vietnamese refugees from Hong Kong who already had members of their families in Britain. That process is proceeding rather slowly. But it is proceeding, nevertheless. On those grounds I support the amendment and hope that the Government will accept it.

Lord Renton

As I understand what the noble Lord has said, the purpose of the amendment is that when an appeal fails because the appellant acted against the law and the rules or did not bring himself within the law or the rules, and when there is no case under statute for the exercise by the Secretary of State of his discretion, instead of dismissing the appeal the adjudicator may consider, evidence of facts or circumstances relevant to the making of a recommendation". In spite of not having proved his case, the appellant shall be allowed to enter or remain in the United Kingdom. I hope that that is a fair summary of the argument the noble Lord presents in favour of his amendment. Even if that is so—and I have an open mind on the merits—nevertheless I feel that the amendment does not clearly achieve its object. According to the noble Lord's argument, compassion is to be the operative factor, but there is no mention of compassion in the amendment. Indeed, the wording of the amendment: evidence of facts or circumstances relevant to the making of a recommendation could well refer to matters other than compassion. No doubt there could also be a great number of special circumstances. If a recommendation on the ground of compassion is the purpose of this amendment, I think that Parliament should make that clear. The recommendation is not made on other grounds as well or on grounds which simply include compassion.

I have another difficulty about the amendment. I think that I understand the noble Lord's intention when he uses the expression "outside the immigration rules", but the amendment reads: be granted leave to enter or remain outside the immigration rules". I find that a rather strange juxtaposition of words. As I said, I have an open mind about the merits, subject to anything that my noble friend may say, but I certainly do not think that the noble Lord's purpose will be achieved by this amendment.

Lord Mishcon

Before the noble Lord sits down perhaps I may say that he has not only a very open mind, which I am delighted to find, but also a very clear mind. I listened most respectfully to his remarks. The wording of the amendment may be imperfect, although I do not think that it is. However, if it is imperfect, we are still at the Committee stage and, since the noble Lord has correctly sensed my aim in this amendment, if other wording has to be employed then perhaps it can be done at a later stage. The Government may accept the spirit of the amendment; or, on hearing from the Minister (as I hope I shall) that the principle is accepted, I shall try to bring forward another amendment at the Report stage.

Having said that, I should like to make perfectly clear that I am thinking of certain compassionate grounds and I am prepared to say that such is the purpose of the amendment. The juxtaposition of the words may not be as good as the noble Lord, Lord Renton, wishes. One should always listen to him, as we listen to his Committee, about the tidiness of words and the clarity of language in our statutes and I always bow to him in that regard.

Earl Ferrers

The noble Lord, Lord Mishcon, said that my noble friend has an open mind and a clear one. I agree with him on both counts. Perhaps I may say to the noble Lord that he too has a clear mind; I hope that he also has an open one.

Lord Boyd-Carpenter

Oh, absolutely!

Earl Ferrers

Perhaps it can be made quite clear exactly what we are discussing, because immigration law is of a highly complex nature. The amendment reads: In any case in which an adjudicator is required … to dismiss an appeal he may recommend that the appellant be granted leave to enter or remain outside the immigration rules and for the purposes of this subsection shall receive any evidence of facts or circumstances relevant to the making of a recommendation". In other words, in all cases the adjudicator is obliged to take into account the evidence of facts and circumstances, compassionate or otherwise, which may be put to him.

As usual the noble Lord, Lord Mishcon, was very persuasive. He said that he wanted to enable compassion to be taken into account. However, if the Committee were to accept the amendment, it would negate the whole of Clause 4, which refers to the restricted right of appeal and reads: A person to whom this subsection applies shall not be entitled to appeal … except on the ground that on the facts of his case there is in law no power to make the deportation order". Quite distinctly and clearly only the facts of the case should be considered, regardless of whether that person has been an overstayer or broken the law.

The noble Lord, Lord Mishcon, quite rightly said that adjudicators can make recommendations. That is perfectly true and they can make recommendations if they wish to do so. They can hear recommendations on other matters if they wish to do so. However, if the Committee were to accept the amendment, it would negate the whole purpose of Clause 4, greatly add to the delays in the final resolution of appeals and increase the workload of both the appellate authorities and the department.

Let me explain the position. It is already open to an adjudicator to recommend, if and when he dismisses an appeal, that leave to enter or to remain should be granted outside the rules. He already has that power. The usual basis on which adjudicators make recommendations is where they consider that there are compelling circumstances of a compassionate nature which in their view warrant a favourable decision being taken, notwithstanding that in law the appeal must be dismissed.

One is talking about people who have broken the law, and the adjudicator can make that recommendation despite the fact that they have broken the law. It is true that the Home Secretary is not bound by such informal recommendations, but they are given very considerable weight and the normal approach is to accept them unless there is something unreasonable or inconsistent in doing so.

The effect of this new clause would be to enable the appellant or his representatives to submit any evidence of facts or circumstances which he feels he should like to put forward, even though they may be wholly irrelevant to the decision under appeal. He may do that in the hope that the adjudicator might make a recommendation. That would apply to almost every single appeal and not just to deportation appeals. It would apply to almost every other type of immigration appeal, and the adjudicator would be obliged to admit any such evidence. I can tell the Committee that there are about 15,000 appeals every year, so it will be realised that this move will add very considerably to the delays about which there has already been criticism.

Appeals would not be limited to the facts and circumstances which are relevant to the decision and the adjudicator's function would be extended from a review of whether a person has the right to stay or enter to a review of all the appellant's circumstances of whatever nature.

The Government want to see a fair but firm system of immigration control. If the Committee were to accept the new clause I must warn it that it would undermine Clause 4 of this Bill. It would create unwarranted and unnecessary delays in the resolution of appeals and it would increase the workload of the appeal bodies and the department, which have already been criticised for delays, and all this would be at the expense of the effectiveness of the immigration control as a whole.

I know that the noble Lord, Lord Mishcon, wanted a little help for compassionate-ground cases. I hope that I have been able to tell the Committee—or rather explain as courteously as I could—that in fact his proposed new clause goes very much further indeed than I believe even the noble Lord, with all his legal wisdom, anticipates.

4.30 p.m.

Lord Mishcon

What can one do in the face of such politeness but such hardness as well? I say that for the following reasons, and the Minister knows that I speak with respect. The first thing is that the Committee and the other place have heard that there should be no final appeal, such as was asked for when the very serious matter of deportation was discussed, because after all, it was said, matters of compassion are fully investigated before the final order so there ought not to be an appeal against the final order as it was all considered when the appellate procedure was gone through. That included the adjudicators. In another place the Minister said, with perfect sincerity, that the adjudicators listen to compassionate grounds and that they can and do make recommendations.

When the letter that I read to noble Lords was received by the Minister he ascertained—possibly for the first time—that some adjudicators thought that it was no part of their purpose or power at all and others did. The Minister did not answer that, saying that some adjudicators do and some do not, and is that desirable? Indeed, he gave the impression that it would be quite wrong for adjudicators to admit evidence outside the normal breach of the immigration rules.

Will the Minister now say that that is the Government's pronouncement, that adjudicators should not hear this evidence? When he relies upon the suggestion that adjudicators shall listen to such evidence, I am perfectly prepared to say that adjudicators are entitled to listen to such evidence if they see fit. I am perfectly prepared to have that variation, as long as the principle is admitted that in proper cases they were entitled to listen to any compassionate grounds.

I concede, first, that I am thinking of compassionate grounds and, secondly, that I am prepared to say that it is not a mandatory requirement of the amendment—because that is not what I intend—that adjudicators must listen to any such facts or evidence, but they are entitled to do so in a suitable case. I ask the Minister whether in those circumstances, and having regard to what I have said, the principle is or is not conceded by the Government. If that principle is not conceded, I shall be appealing to the Committee.

Earl Ferrers

The noble Lord, Lord Mishcon, puts one in considerable difficulty because he puts down an amendment to the Bill and then argues about it on the assumption that the amendment means something different from what it actually means. The noble Lord shakes his head in dissent, but all I can suggest to him is that if he reads his amendment carefully he will find that it puts an obligation on every single adjudicator and every single tribunal to listen to all the facts of the case whatever those facts may be, compassionate or otherwise. There is an obligation.

The amendment uses the word "shall". For one who is held in the highest respect for his legal abilities, what the noble Lord, Lord Mishcon, is saying is that he did not really mean that. What he really meant was to make sure that the adjudicator may listen and may make a recommendation. The adjudicators may listen now to any facts which they consider are important. Adjudicators may make a recommendation as they think fit, but it is a totally different matter to write into legislation an obligation that adjudicators shall, on all occasions, consider any matter of whatever nature.

I assure the noble Lord, Lord Mishcon, that what he seeks is already covered. Adjudicators can make recommendations and can hear representations on other matters if they wish.

Lord Renton

Having heard my noble friend, I no longer have an open mind on the merits of this matter. I believe that he has made out a very clear case for showing that the amendment is not consistent with Clause 4 and that it is to a great extent unnecessary. I make a further plea to the noble Lord, because we have tried to get things right in the Bill. I hope I am not presuming too much if I say that I think he would be wise (and he is wise) to consider whether his amendment really fulfils his purpose, whether it is intrinsically sound and whether it would fit in to the pattern of the Bill.

Lord Pitt of Hampstead

I wonder whether I may ask the noble Lord for help. What is required is that it is clear that the Government claim that compassionate grounds are already considered before the Home Secretary decides about deportation. The evidence we have is that it is considered by some adjudicators but not by all.

I wonder whether the noble Lord will give us some guidance as to how we in Parliament can give guidance to adjudicators that at the stage when the Government say it ought to be done—that is, when people are asking for an extension of leave—adjudicators should take compassionate grounds into account. Can the noble Lord help us?

Lord Renton

I am glad that the noble Lord has put that question to me. He has put it very fairly. However, I still say that the fact that some adjudicators take on board the compassionate grounds and others do not is not an answer to the three difficulties which I mentioned just now and which I hope that the noble Lord, Lord Mishcon, will consider.

Lord Mishcon

My only object is to produce the right result. I realised when I put the word "shall" into the amendment—I hope I am always frank with the Committee—that that was mandatory. It was not a slip or a mistake. It was put in intentionally. When the noble Lord, Lord Renton, said with all frankness that he had an open mind but was worried by the word "shall", I quickly thought while on my feet that, rather than lose the amendment at Committee stage, it would obviously be better in protecting those whom I wanted to protect to say to the Minister, I hope with clarity, that if the mandatory "shall" were removed and the words "shall be entitled to" were put in—that being the matter worrying the noble Lord, Lord Renton—the spirit of my amendment would be accepted.

The noble Lord, Lord Renton, absolutely correctly pointed out that I was not limiting myself in the amendment to the word "compassionate" and therefore extraneous matters might be brought in which nobody intended should be allowed through the gateway of the amendment. So again I am seeking a principle, as one does at Committee stage, realising that we have only a few stages at which amendments can be put. I do not want to waste this one and I want to try to achieve something by my amendment. It has no party bearing; it is a matter of decency, compassion and justice, principles which I hope are upheld on all sides of the Committee.

I wanted to make a concession. I agree that it was absolutely right that I was only thinking of compassion. I those circumstances I invited the Minister to agree that, if that be so, the Government are in favour of that pronouncement so that there can be uniformity and a proper adjudication can take place. Having made both those points, I hope in fairness, I still await a declaration from the Minister as to whether on policy, with those two ingredients, the amendment would be favoured. In that event I would withdraw the amendment and either how to a Government amendment at the next stage or if it were preferred, I would bring in an amendment of my own at Report stage, knowing that it would be carried by the Committee on the basis of being accepted by the Government. I now listen with optimism to what the Minister has to say.

Earl Ferrers

I sometimes think that I am rather like a puppet on a string. Before the noble Lord sits down he always says, "I now listen to what happens" and pulls the rope. He expects me to stand up and answer to him in a way which he feels would be satisfactory to him.

I accept entirely that there is no party matter here—absolutely not. I accept entirely that the noble Lord's concern is one of compassion. There is no difference between us there.

The noble Lord, Lord Pitt, has asked how we can give guidance to the adjudicators in the Bill. Quite honestly, I do not think one can give guidance to adjudicators or to anyone else in a Bill. A Bill simply states what is law and what is not law.

The noble Lord, Lord Mishcon, says that some adjudicators listen to compassionate cases and others do not. I hesitate to say this when there are so many Members well versed in the law here, but, when you go in front of a judge, some judges are renowned as being more gentle than others and others as being more harsh. However, they still interpret the law. I think we have to try to allow the adjudicators to interpret the law.

The noble Lord, Lord Mishcon, wishes to put in words which, even if we changed them, would enable people such as lawyers and those who are well versed in the law as of right to bring forward matters of any kind outside the purview that we believe Clause 4 should have. The amendment will give them the obligation to do that, if we write it into the law.

The whole purpose of Clause 4 is to restrict the appeal at this stage to the facts. Are you an overstayer or are you not? Have you broken the law or have you not broken the law? If it is decided that you have broken the law, but the adjudicator may have taken into account all the compassionate circumstances of the case, he may make a recommendation to the Home Secretary. He frequently makes a recommendation to the Home Secretary which says that a man has broken the law but that his compassionate circumstances are such that they ought to be considered. Therefore, even when a man has broken the law, the Home Secretary may still take into account those compassionate circumstances.

I accept what the noble Lord, Lord Mishcon, wishes to do. I would hesitate to say that that ought to be written into the Bill because I think it is a practice which is followed at present.

Lord Pitt of Hampstead

May I say to the Minister that I probably used the wrong word when I said "guidance", but Parliament can give directions?

Earl Ferrers

The noble Lord, Lord Pitt, will recognise a distinct difference between directions and guidance.

4.45 p.m.

Lord Donaldson of Kingsbridge

I have listened with the greatest of care to this. Am I wrong in saying that the conclusion of the debate is that the Government are perfectly happy that in certain circumstances compassionate considerations should not be taken into account? That is the impression that I have, and it seems to me to be a most dreadful conclusion. Perhaps I have misunderstood the whole thing.

Earl Ferrers

I think that the noble Lord, Lord Donaldson, has completely misunderstood the position, because we are talking about people who have broken the law. It has been considered that they have broken the law. They appeal. The adjudicator says that they have broken the law. They then go to a tribunal and the tribunal says that they have broken the law. At all these stages the compassionate circumstances will be known. At the last moment when the question of whether a person should or should not be deported is considered, it is a question of fact: has the person broken the law or not? In all these cases running up to this the compassionate nature of the circumstances will be known and the adjudicator may take into account those compassionate circumstances. It would be wrong to write in at this stage of a Bill the fact that compassionate circumstances should be given merit equal to the fact that they have broken the law. The compassionate circumstances will be known. The point of Clause 4 is that the decision should be taken on the simple fact of whether or not a person has broken the law.

Lord Donaldson of Kingsbridge

My noble friend Lord Mishcon has said nothing which suggests that they should be given equal merit. That has been brought in now. It has never been said. I am afraid that I am not satisfied.

Lord Pitt of Hampstead

At all stages the Government say that these compassionate grounds are, and have already been, taken into account. However, there is evidence that adjudicators do not take them into account. Some adjudicators take them into account and some do not. It must be possible for Parliament to give some directions to adjudicators to ensure that they should take compassionate grounds into account at some stage. The Government seem not to mind that they are not taken into account.

I think that the noble Lord, Lord Donaldson, was right. If we are going to say that it is perfectly all right for some adjudicators to take compassionate grounds into account which others do not, then we are saying that it is perfectly all right that a person should go right through the process and actually be deported without compassionate grounds being taken into account. Therefore one is asking, accepting that it may be the wrong stage to put it into the Bill: at what stage does one put it into the Bill? At what stage does one make sure that compassionate grounds are considered by an adjudicator so that he can make recommendations to the Secretary of State?

Lord Mishcon

I think that others apart from myself were seeking some further response from the Minister. I am sorry that he regards himself in any way as being brought to his feet, as it were, at my command. I do not think that I hold that position in your Lordships' House. I merely rely, as others do, upon the courtesy of Ministers to reply to questions and to relevant remarks. One can never find fault with the noble Earl in that connection. I therefore think that he gets up quite voluntarily and automatically and not at my behest. Indeed, I imagine that the same position will obtain when I have finished what I have to say now.

I had hoped that the Minister would have bent just one inch from that stern stance that he took. I should have hoped that he could at least have said that though there will not be a direction in the Bill there will be a guideline, and that he would have undertaken that there will be a guideline issued to adjudicators to say that in appropriate cases it is perfectly proper for them to listen to compassionate grounds and, where they see fit, to make recommendations. The Minister has not said that. The Minister has not responded to my quotation from Mr. Patey, the chief adjudicator. Mr. Patey said, "I do not consider that it would be appropriate for me to make any recommendations." He thought that it was wrong for an adjudicator to make recommendations. The Minister has not answered that point.

The Committee may have formed the impression that, as the Minister said, there are some judges who are known to be merciful and others who are not, and some will listen with sympathy to a plea in mitigation and others will not. Any judge knows that he can listen to a plea in mitigation. Some adjudicators, including the chief adjudicator, appear to believe that they cannot hear any plea in mitigation. Even at this late hour I ask the Minister to say that he will issue at least a guideline saying that they are entitled to listen and they should do so in appropriate cases. If he cannot go that far I must take the opinion of the Committee. If it is then necessary to come back at another stage with wording which may be more appealing to the Committee I shall do so. Unless the Minister can help me in the way in which I have indicated I ask for the spirit of this amendment to be voted on now.

Earl Ferrers

I am not sure whether I rise at my behest or that of the noble Lord, Lord Mishcon. In fact, it will be at my behest. I wish to be as sympathetic as possible to the noble Lord. He asks me to ensure that the Government will give a guideline to the adjudicators. I believe that it is right that the adjudicators should interpret the law as it is. I have suggested to the Committee that the adjudicator has the right to consider such circumstances as he wishes and that he can make recommendations should he wish to do so. That is the position and I hope that the Committee will agree that it is reasonable.

4.52 p.m.

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

Their Lordships divided: Contents, 107; Not-Contents, 153.

Airedale, L. Llewelyn-Davies of Hastoe, B.
Amherst, E. Lloyd of Kilgerran, L.
Ardwick, L. Lockwood, B.
Attlee, E. Lovell-Davis, L.
Banks, L. McCarthy, L.
Basnett, L. McIntosh of Haringey, L.
Blackstone, B. Mackie of Benshie, L.
Blease, L. McNair, L.
Bonham-Carter, L. Mais, L.
Boston of Faversham, L. Manchester, Bp.
Bottomley, L. Mason of Barnsley, L.
Brooks of Tremorfa, L. Mishcon, L.
Bruce of Doninglon, L. Molloy, L.
Buckmaster, V. Mulley, L.
Callaghan of Cardiff, L. Nicol, B. [Teller.]
Carmichael of Kelvingrove, L. Ogmore, L.
Carter, L. Parry, L.
Cledwyn of Penrhos, L. Peston, L.
David, B. Phillips, B.
Davies of Penrhys, L. Pitt of Hampstead, L.
Dean of Beswick, L. Ponsonby of Shulbrede, L. [Teller.]
Donaldson of Kingsbridge, L.
Dormand of Easington, L. Prys-Davies, L.
Elwyn-Jones, L. Raglan, L.
Ewart-Biggs, B. Rathcreedan, L.
Ezra, L. Rippon of Hexham, L.
Falkender, B. Robson of Kiddington, B.
Falkland, V. Rochester, Bp.
Fitt, L. Sainsbury, L.
Foot, L. Seear, B.
Gallacher, L. Sefton of Garston, L.
Galpern, L. Serota, B.
Glenamara, L. Shackleton, L.
Graham of Edmonton, L. Shepherd, L.
Gregson, L. Stallard, L.
Grey, E. Stedman, B.
Hampton, L. Stewart of Fulham, L.
Harris of Greenwich, L. Stoddart of Swindon, L.
Hooson, L. Strabolgi, L.
Houghton of Sowerby, L. Taylor of Blackburn, L.
Hughes, L. Taylor of Gryfe, L.
Hutchinson of Lullington, L. Taylor of Mansfield, L.
Hylton, L. Thurlow, L.
Irvine of Lairg, L. Tordoff, L.
Irving of Dartford, L. Turner of Camden, B.
Jacques, L. Underhill, L.
Jay, L. Wallace of Coslany, L.
Jeger, B. Walston, L.
Jenkins of Hillhead, L. Wells-Pestell, L.
John-Mackie, L. White, B.
Kilbracken, L. Williams of Elvel, L.
Kirkhill, L. Wilson of Rievaulx, L.
Leatherland, L. Winchilsea and Nottingham, E.
Listowel, E. Winstanley, L.
Ailesbury, M. Bessborough, E.
Airey of Abingdon, B. Blatch, B.
Allenby of Megiddo, V. Boyd-Carpenter, L.
Alport, L. Brabazon of Tara, L.
Ampthill, L. Broadbridge, L.
Arran, E. Brougham and Vaux, L.
Auckland, L. Broxbourne, L.
Bauer, L. Butterworth, L.
Beaverbrook, L. Caithness, E.
Belhaven and Stenton, L. Cameron of Lochbroom, L.
Bellwin, L. Carlisle of Bucklow, L.
Beloff, L. Carnock, L.
Belstead, L. Chelwood, L.
Clinton, L. Macleod of Borve, B.
Colnbrook, L. Margadale, L.
Constantine of Stanmore, L. Marley, L.
Cottlesoe, L. Merrivale, L.
Cowley, E. Mersey, V.
Cox, B. Middleton, L.
Craigavon, V. Milverton, L.
Crickhowell, L. Monk Bretton, L.
Cullen of Ashbourne, L. Morris, L.
Dacre of Glanton, L. Mottistone, L.
Davidson, V. [Teller.] Mowbray and Stourton, L.
De Freyne, L. Moyne, L.
Denham. L. [Teller.] Munster, E.
Derwent, L. Nelson, E.
Donegall, M. Newall, L.
Dundee, E. Nugent of Guildford, L.
Eden of Winton, L. Onslow, E.
Ellenborough, L. Orkney, E.
Elles, B. Orr-Ewing, L.
Elliott of Morpeth, L. Oxfuird, V.
Erne, E. Pender, L.
Erroll, E. Porritt, L.
Faithfull, B. Portsmouth, E.
Ferrers, E. Rankeillour, L.
Forbes, L. Reay, L.
Fortescue, E. Rees, L.
Fraser of Kilmorack, L. Renton, L.
Gainford, L. Renwick, L.
Geddes, L. Rochdale, V.
Grantchester, L. Rodney, L.
Greenway, L. St. Davids, V.
Haddington, E. St. John of Fawsley, L.
Hanson, L. Saltoun of Abernethy, Ly.
Hardinge of Penshurst, L. Sanderson of Bowden, L.
Harmar-Nicholls, L. Savile, L.
Harrowby, E. Sempill, Ly.
Harvington, L. Shannon, E.
Havers, L. Sharples, B.
Hayter, L. Skelmersdale, L.
Henley, L. Southborough, L.
Hesketh, L. Stanley of Alderley, L.
Hives, L. Stodart of Leaston, L.
Hooper, B. Strange, B.
Hunter of Newington, L. Sudeley, L.
Hylton-Foster, B. Swinfen, L.
Ilchester, E. Terrington, L.
Joseph, L. Thomas of Gwydir, L.
Kaberry of Adel, L. Thorneycroft, L.
Killearn, L. Trafford, L.
Kimball, L. Trefgarne, L.
Kintore, E. Trumpington, B.
Lane-Fox, B. Ullswater, V.
Lauderdale, E. Vaux of Harrowden, L.
Layton, L. Waldegrave, E.
Lindsay, E. Ward of Witley, V.
Lindsey and Abingdon, E. Westbury, L.
Lloyd-George of Dwyfor, E. Whitelaw, V.
Long, V. Wigram, L.
Lonsdale, E. Windlesham, L.
Lothian, M. Wise, L.
Lucas of Chilworth, L. Wolfson, L.
Luke, L. Wyatt of Weeford, L.
McFadzean, L. Young, B.
Mackay of Clashfern, L.

Resolved in the negative, and amendment disagreed to accordingly.

5 p.m.

Lord Hylton

With respect to the Chair, should we not have Clause stand part first?

The Deputy Chairman of Committees (Lord Alport)

I understand that Clause 4 was stood part at the last sitting of the Committee.

Lord Mishcon

I always find that the noble Lord is very helpful in regard to all merciful causes, and, in mercy to the Committee, we dealt with the clause yesterday and the decision was that it should stand part of the Bill.

Clause 5 [Knowingly overstaying limited leave]:

Lord Mishcon moved Amendment No. 14: Page 3, line 37, at end insert— ("Provided that a prosecution for this offence may only be brought once for any one period commencing with the expiry of leave to enter or remain.").

The noble Lord said: With regard to Amendment No. 14, brevity will not be a sign of the lack of importance of the amendment, but I promise to be brief. The law is being altered, and nobody objects to that in that the question of overstaying leave will now be dealt with on a continuing basis instead of its being only one offence; namely, the day when the person concerned knowingly overstepped the leave and that would be the end of the offence.

As I understand it, it is now to be a continuing offence. The amendment seeks not to upset that change in the law as interpreted by our courts but to have the usual provision in our criminal law that a person cannot be tried twice for the same offence. Therefore, if there were a prosecution at the moment and, for example, it failed on the basis of the prosecution being unable to prove to the satisfaction of the court that somebody knowingly overstayed their leave on a certain day, then the prosecution should not be entitled to go away and say, "Well, another judge might find rather differently and in those circumstances I shall choose another day in the same period-, and then bring the prosecution forward.

Therefore, the amendment provides: that a prosecution for this offence may only be brought once for any one period commencing with the expiry of leave to enter or remain". I beg to move.

Lord Renton

Is this point not covered by the long-established rules of criminal practice that a person who has been convicted or acquitted can merely point to the record and say, "Autrefois acquit" or "Autrefois convict"?

Lord Mishcon

As usual, the learning of my noble friend Lord Renton, if I may call him that, is accurate. That was the very point that I raised. Peculiarly enough, one could defeat the plea of autrefois acquit in this particular case by choosing a different day in the same period. Therefore the prosecution could argue perfectly correctly that a person was acquitted in respect of the day or charge mentioned in the previous indictment but could then choose another day when it is said that he knowingly overstayed, although it is in the same period. I am reliably advised by those who look after the interests of immigrants that they have taken legal advice and are satisfied that without this amendment autrefois acquit would not be a bar to any further prosecution.

Lord Renton

All I can say is that that surprises me greatly.

Earl Ferrers

Nothing ceases to surprise me about this Bill and the ramifications of immigration law. I do not believe that the noble Lord, Lord Mishcon, need worry because under the provisions of Clause 5 overstaying is considered to be one offence. The offence is committed when a person first knows that he has overstayed and it continues to be committed throughout any period during which he is in the United Kingdom thereafter. There is only one offence although it will continue to be committed and, therefore, there can only be one prosecution. I hope that satisfies the noble Lord.

Lord Mishcon

I wish it did because I should love there to be agreement between the noble Earl and myself at long last. I do not think that is the answer because I repeat—and this is the advice presumably given to the immigration bodies which I mentioned—that the advice is that one could have a prosecution for having knowingly overstayed the leave on Monday (I repeat it is to be a continuing offence under this Bill) and the court is not satisfied that on Monday the defendant knew he had overstayed his leave, and in those circumstances he would be acquitted. The prosecution could then come back, even though that was a period before the charge was heard, and say, "Oh yes, I am now alleging he knew on Tuesday".

That is either right or wrong. Perhaps the noble Earl would say that he has listened to what has been said and will try to clarify the position between now and Report. If what I have said is a nonsense perhaps he will kindly tell me, and if it is not we can consider the matter on Report, I hope with the Government saying that they agree with this proposal. I have no intention of carrying the matter beyond that at this stage, but no doubt the noble Earl at his own behest will now rise and address the Committee.

Lord McNair

Would not the noble Earl agree, with reference to this fascinating discussion, that if he is right the addition of the words in the amendment do him no harm at all and simply confirm that he is right? Therefore, he might as well include those words and then we can please all sides of the Committee.

Lord Renton

Surely we should avoid putting into a statute unnecessary words which may again proclaim what the law is.

Lord Elwyn-Jones

If that was so, I wonder why it was thought necessary in the Explanatory Memorandum to this Bill to say: Clause 5 makes the offence of overstaying leave to be in the United Kingdom a continuing one". It is remarkable that it should be identified. It suggests that considerations different from the normal application of the principles mentioned by the noble Lord should be applied. That is because of the continuing nature of the offence.

Lord Renton

The clause changes the law, which is explained in the Explanatory Memorandum. It is not a question of declaring the law.

Earl Ferrers

That happy intervention from the noble Lord, Lord McNair, prevented the puppet from rising quite as quickly as he normally does when the noble Lord, Lord Mishcon, pulls the strings. I am grateful to the noble Lord for what he has said and for clarifying the position because I realise the point with which the noble Lord is concerned. I was a trifle confused when we started talking about autrefois.I find it difficult enough to carry on a discussion about the legal position in English, and when we start talking about it in French as well it further complicates the issue for a simpleton like myself.

The point with which the noble Lord, Lord Mishcon, is concerned is that if a person was considered to have overstayed on the Monday and was taken to the court on the Monday and the court decided that that man had not overstayed, the prosecution could come back and say, "Well, you knew you were overstaying on Tuesday and so we have got you now". The noble Lord was concerned that the person should not be acquitted on one day and retried on the second day. The point is that Clause 5 makes it a continuing offence. Once a person has overstayed on one day, he is therefore considered to have continued to overstay.

To take an absurd example—in fact, not all that absurd because it is a real one—an individual might have his time of leave here until 1st January. And it could be that on that day he went to Scotland and got blind drunk. When accused of overstaying, he could say, "Ah, but on 1st January I did not know that I was overstaying." Of course he did not know, because he was not in a state to know. Therefore, as the law now stands, if he did not know on that one day that he was committing an offence, he could thereby be permitted to stay.

What we have tried to do in Clause 5 is to say that if a person overstays and committed the offence on that one day, he is therefore committing the offence on the subsequent days as well. Therefore, the doubt of the noble Lord, Lord Mishcon, is clarified, even if I have not clarified it too well. If the person is found to be committing the offence on the one day, that offence continues thereafter.

Lord Mishcon

I promise to address the Committee in English, and only in English, in furtherance of this amendment. Perhaps I should give another example because, if I may say so most respectfully, I do not think that the Minister's example of drunkenness was at all good. I am not at all sure that it is a defence to say. "I did not know because I was drunk".

I much prefer to give an example which I believe will commend itself to the Committee. Let us take for granted that a man overstays his leave to be here on the Monday and he is charged with that offence on the following Monday and acquitted. He then decides, as is his right, to appeal to the Home Office, through his Member of Parliament, to stay. If this amendment were not passed, it would mean that the prosecution—the man having been acquitted on the previous Monday—could thereupon, in respect of the same period, bring a further charge against the immigrant on the basis that he had continued to overstay his leave. Although he had made represent- ations and an appeal was pending, he had committed an offence even though the court had held that he had not knowingly overstayed his leave on the previous occasion.

To argue technicalities before the Committee is never a profitable pursuit. What I really want to do, as I am sure the Committee realises, is to know that the Bill follows the principle which I should have thought is common to all of us; that is—and I shall use English—a man cannot be convicted once he has been acquitted of the selfsame offence as charged. All we want to do is to get the Bill right.

The noble Earl was kind enough to say to the Committee that he had not entirely appreciated what I was arguing when he first saw the amendment and that he now does. I should have thought that the sensible course for the noble Earl if he will kindly agree, is between now and Report stage to take the very able advice which is open to him and communicate with me during that period to say that there is no change, as a result of taking that advice, in the pronouncement that he has made to the Committee this afternoon, I will then know where I stand. The noble Earl will know where he stands. And the Committe will know where it stands. If the noble Earl will be kind enough to say that he will either confirm the advice that he has received—or otherwise—between now and Report, I will seek the Committee's leave to withdraw the amendment.

Lord Walston

May I, as a complete layman, whether in French or in English, support the noble Lord, Lord Mishcon, on this matter? It seems clear that there is a difference of opinion as to what this clause, unamended, sets out to do. I cannot see any harm whatever in the Government agreeing to look at it again, with all the expert advice that is available to them, and coming back at a later stage. If the Government and the noble Earl can assure the noble Lord, Lord Mishcon, and the rest of the Committee who are in sympathy with his view, that his fears are completely unfounded so much the better. If the noble Earl is unable to do that, then we can discuss the matter further.

Surely it is better for us to have the full facts with the full weight of professional advice, before we make up our minds rather than attempt to conclude the matter in this somewhat uncertain atmosphere.

5.15 p.m.

The Earl of Onslow

My noble friend Lord Renton and my noble friend Lord Ferrers have said that there is no double jeopardy. They said so quite clearly. The noble Lord, Lord Mishcon, says that there is. It seems to be almost as simple as that. My noble friends Lord Renton and Lord Ferrers have said that there is no question of a double trial; the noble Lord, Lord Mishcon, says that there is. My noble friend the Minister has been advised that there is no double jeopardy.

Earl Ferrers

I am most grateful to my noble friend Lord Onslow for that intervention. I do not necessarily agree with him that the matter is as simple as that. I do not think anything is as simple as that; certainly not in this particular and peculiar area.

Of course, I realise the concern of the noble Lord, Lord Mishcon. However, I believe that his concern is misplaced. I shall certainly look into the matter to make sure that I have not misled the noble Lord and to make certain that his concern is satisfied by the law as it will stand with the Bill unamended. The noble Lord can come back to the matter at a later stage should he wish to do so.

Lord Mishcon

I am deeply grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 15: Page 3, line 39, leave out ("for") and insert ("after").

The noble Lord said: With the Committee's leave, I will speak also to Amendments Nos. 16, 16A and 17. The point is a short one; it will be delivered to the Committee equally briefly. The normal period during which a prosecution must be brought is three years. I believe I am on safe ground in saying to the Committee that at present—without making this absolutely clear one could bring a prosecution after three years of overstaying. This amendment seeks to ensure that the normal period—the normal time limit—for bringing a prosecution applies. I beg to move.

Earl Ferrers

If I am right in understanding the noble Lord—and I may not be right—I believe that he is concerned, with these amendments, that the offence of overstaying is a continuing offence. Is that right?

Lord Mishcon


Earl Ferrers

In that case, the position, as the noble Lord will know, is that some doubt arose following two judgments—Gurde v. Singh in 1973 and a House of Lords ruling of 1982 in Grant v. Borg—which severely limited the ability to prosecute. Those judgments effectively meant that the offence of overstaying could be committed only on the first day following the expiry of the period of leave and only when it could be proved that on that day a person knew that he was overstaying. No matter how deliberate the overstaying subsequently became, if the person could claim that he was not aware of his overstaying on that first day, it became almost impossible for a prosecution to be successfully brought. We do not believe that is right but I accept that this is a fairly complicated area.

Lord Mishcon

I am afraid I am not quite following the noble Earl. I have no doubt it is my fault. I was saying something rather different from that, bearing in mind that it was a continuing offence. I was saying that the offence starts from the last day when leave has expired. What I am saying is that no prosecution should be brought more than three years after that offence was committed, bearing in mind that it is a continuing offence. Otherwise one can go on from day to day and make the three years start from any one of those days instead of from the date when the expiry took place. That is the point I am making. It is in accordance with general principles of criminal law.

Lord Renton

In accordance with general principles of criminal law perhaps I may now burst into Latin instead of French: nullum teinpus occurrit regi, in other words the Crown is not bound by any time limit in the 'prosecution of offenders. If someone commits a murder when he is 30 years old and it is not detected until he is 60 years old, he can still be prosecuted subject to a certain statutory time limit. I am not sure whether the noble Lord is relying upon a statutory time limit which there is already in the immigration law. Quite frankly I should have to plead ignorance because I do not know of one. On the other hand, as he said, he is relying on the general principles of criminal law. Under the general principles of criminal law, nullum tempus occurrit regi.

Lord Mishcon

I am tempted to tell the Committee a lovely story about the last of the Serjeants, who was Serjeant Sullivan.

Lord Renton

I remember him.

Lord Mishcon

The fact that the noble Lord remembers him means that there is a continuing remembrance, if I can use the phrase, among many of us. Serjeant Sullivan was addressing the Court of Appeal in regard to a workman's compensation case which could in fact have also been a common law case. One of the learned Lord Justices of Appeal turned to the Serjeant and mentioned the principle of volenti non fit injuria. The Lord Justice of Appeal asked whether in those circumstances Serjeant Sullivan's client had realised that Latin principle. The Serjeant replied: "My Lords, in the little village near Antrim from which my client comes, it forms the sole topic of conversation".

I am tempted to think that other Members of the Committee who are not lawyers will feel like repeating the Serjeant's remarks. I was referring to the normal principles that would apply in the Immigration Act to criminal offences which are committed. I am saying that because this is a continuing offence one ought to make it clear that a prosecution could not be brought if more than three years had expired from the time when the leave to enter expired. That is what I was asking.

Lord Renton

The illegal immigrant has only to go to ground for three years, make sure he does not get into any official record, his illegal entry and remaining here not being discovered, and he can then remain for ever. That is what it comes to, does it not?

Lord Mishcon

No it does not. We are here dealing with criminal prosecutions. That has nothing to do with the power of the Home Secretary to deport and to do such things as he has the power and possibly the duty to do. We are merely dealing with the criminal law.

The Earl of Onslow

Am I being extremely stupid? I do not think I am. I should have thought that if you have a continuing offence it is almost impossible to put a time limit on it. If you are overstaying your welcome or your right to stay, and that goes on for ever, that in effect is a criminal offence. We are not arguing the right or wrong of that for the moment. What we are arguing about is that if he stays for three years then by the noble Lord's amendment it stops it being a continuing offence. If that is what the noble Lord wants to do, that is all very fine and large to argue. I believe the logic of what he is saying is to stop it being a continuing offence.

Lord Mishcon

It continues to be a continuing offence. If this amendment is passed what one cannot do is to prosecute that man for it as a criminal offence after three years have expired from the date of the expiry of the leave to remain here or to enter.

Earl Ferrers

Perhaps I may again join in this happy debate now that we have got rid of the French and the Latin and returned to English. My noble friend Lord Renton behind me put his finger totally on the point. If what the noble Lord's amendment did was to say as my noble friend did "provided you have overstayed for three years and you have been crafty enough not to get caught, then you are in the clear"—the noble Lord, Lord Mishcon, shakes his head and it is a shake that I accept with deference. I believe the he now agrees that overstaying is a continuing offence.

If you begin overstaying on 1st January, you are overstaying on 1st February and 1st March and the next year and the year after that, and you continue to overstay, you are creating an offence. What the noble Lord says is that the poor fellow must realise that once he has passed three years he is in the clear. I do not believe that is right. He is offending and he ought to be prosecuted for so doing. The longer he stays the greater is the offence which he creates.

Lord Mishcon

I rise for the last time as regards this amendment. I ought to have made it clear that in those circumstances, if this clause remains without amendment, the law is now going to be stricter than it was before. If the offence is only committed before we made it a continuing offence on one day then the present immigration law would be that one cannot prosecute that man more than three years after that day. By making it a continuing offence we are making the offence more strict, the punishment more strict and the power to prosecute more strict. That is what I ought to have brought to the attention of the Committee. By making it a continuing offence this is what we are doing. I notice that the noble Earl of his own volition wishes to rise.

Earl Ferrers

I congratulate the noble Lord on his anticipation of what was in my mind. I was getting so excited by what he was saying that I was prompted to move. Having moved myself up, I have now forgotten what it was that the noble Lord said that prompted me to move in the first place. I remember now. He says that we are making the law stricter, and he is absolutely right. At the moment one can only be convicted on that one day. We are saying that it should be a continuing offence. Dare I say it, but I believe where the noble Lord gets himself into a muddle is that he is confusing the normal law.

Perhaps I may give this example. If I were to steal a radio out of the noble Lord's car on 1st January, I have done that on one day. I could be prosecuted for a number of years. The noble Lord says that after three years have passed one cannot be prosecuted. That act was done on only one day but overstaying is done on every single day after the point at which a person's leave to stay expires. Therefore it is a continuing offence. To say that a person cannot be prosecuted after three years when in fact he might still be overstaying seven years later is not fair.

Lord Mishcon

The noble Earl has repeated in far clearer language what I was saying earlier. Until it is made a continuing offence, prosecution cannot be brought more than three years after the date on which it is alleged the offence has been committed, which is the day after the leave expires.

We have gone through this tortuous argument for long enough. I sense the fact that the Committee feels that, in justice, the present wording of the Bill should stand and that it should not be amended in the way I have indicated. I accept that view, and in the circumstances ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16, 16A and 17 not moved.]

5.30 p.m.

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Hylton

I must apologise for my earlier procedural oversight. Perhaps I may now ask a question for clarification. I apologise to the noble Earl for not giving him much notice. If he prefers to reply in writing, that will be perfectly acceptable to me.

The question concerns the restriction on the right of appeal which is brought in by Clause 4. I should like to know whether this applies only to the generality of immigration cases or whether it also includes the cases of asylum seekers. An asylum seeker can be present in this country in a number of different ways. He may have arrived as a visitor. He may have arrived and been given exceptional leave to remain for a certain period. He may have arrived illegally. There may even be other ways of being here of which I have not thought. I should like to know whether this applies to asylum seekers as well as to general immigration cases.

Earl Ferrers

I congratulate the noble Lord, Lord Hylton, on having made a Clause 4 stand part speech on Clause 5 stand part. Having said that, I realise that he was bounced, or so he feels, by not being here at the appropriate time last night when he might have made the speech which he has now made. Clause 4 applies to all overstayers, including those who overstay for asylum. The provisions of Clause 4 apply to all appeals.

Lord Pitt of Hampstead

I hope the Committee will agree that Clause 5 should not stand part of the Bill. I said at Second Reading that I was worried about making overstaying a continuing offence because of what I saw as the danger to the relationship between the black community and the police. If an offence has been committed, the police have a duty to intervene.

The Committee may remember that with stop-and-search it was generally felt by black people that the police were picking on them. The police stopped them and asked them all kinds of questions. Many consequences flowed from that. West Indians are not mild and meek people. Usually, when a policeman asks a West Indian, "Where are you going? What do you have in that bag?", the West Indian will answer, "What business is it of yours?" That is quite different from the way the average Englishman would answer. That caused a good deal of trouble in the past.

The police will now be justified in stopping black people and asking them how long they have been here. The Police and Criminal Evidence Act gives an officer that right if he has reasonable grounds for suspecting that an offence has been committed. He can ask the question. All kinds of consequences can flow from that kind of activity. There is no need for it. The Home Secretary has enough powers for dealing with overstayers. He can deport them. He does not need the criminal law. He does not need to use the courts or the police. Therefore I am appealing to the Government to think in terms of community relations, and particularly relations between the black community and the police, and to change their mind about making overstaying a continuing offence.

As I see it, overstaying as a continuing offence can cause social problems, problems which nobody wants. There is absolutely no need to make overstaying a continuing offence. If it remains as it is now—an offence on the first day that the overstayer knew—he can be deported. It would be much better in social and community terms for the Home Office to use its power of deportation than to involve the police and the courts in this matter. I appeal to the Government. I am glad that the Leader of the House is present because he can take to the Cabinet the plea I am making. My plea to the Government is not to continue along this road. There will be dangers if we travel along it.

Lord Mishcon

I rise only to utter a few words after the rather moving speech of my noble friend Lord Pitt. If this is to be an offence, I can see the logic of it being a continuing offence, and not, as the House of Lords ruled, an offence committed only on one day; the day upon which knowingly the leave expired. I see the logic of that. What I feel is bad judgment on behalf of the Government is to make the matter a criminal offence at all. As my noble friend Lord Pitt has said, the Home Office has some quite draconian powers. It can deport and do other things, even if it means breaking up a family, if an illegal immigrant is found to be guilty of that offence. The police do not want that and they have said so. To add the criminal prosecution would mean policemen going round interviewing, taking statements, prosecuting and giving evidence at the very time when our own commissioner in the metropolis and other police chiefs throughout the country are doing their level best to see that misunderstandings —as they often are—do not occur and trying hard to break down the frontiers that exist in some districts between the police and the minorities, and so create a feeling of mutual confidence.

I should not be uttering this speech on clause stand part—and I repeat that—if there were no sanctions to stop illegal immigration. The sanctions are there. Why bring the police and the whole force of the law into the matter when, whatever we want to do, people who have flouted our law by overstaying here—however one might be moved by the reasons for their so doing—can be removed from our kingdom without any difficulty? I ask again: why bring the police and the criminal law into the matter especially at this time?

The Earl of Onslow

It is just possible to take the argument of the noble Lord, Lord Pitt, and stand it on its head. One can make the perfectly good argument that it is much better, when someone has overstayed their welcome and their right to remain here, that this should be established—absolutely cut and dried—by the courts of law and so seen to be above board, open and public rather than depending upon administrative or Home Office fiat.

The noble Lord, Lord Pitt, has made a very valid point. However, there is an absolutely logical argument which can be made on the other side to take account of exactly the same valid point he has made.

Lord Bonham-Carter

It may conceivably be perfectly logical, as the noble Earl, Lord Onslow, has said, to take a different view to that expressed by the noble Lord, Lord Pitt of Hampstead. I am not quite so convinced of the logic which he claims to have expressed. I argue from a practical point of view. Anyone who neglects the advice of the noble Lord, Lord Pitt of Hampstead—it is advice I fully endorse—of the crucial importance of relations between the police and ethnic minorities may claim to be logical. But he is also being extremely unwise. This is the most critical area of race relations in this country. Anyone who has worked in that field is fully aware that relations between the police and the ethnic minorities are critical.

As the noble Lord, Lord Mishcon, has said, strenuous efforts are being made on all sides—not altogether successfully let it be said—to improve those relations. Should it be believed that a measure could be, or is likely to be, a cause of deterioration in race relations, it would be a most unwise measure to adopt. We would be well advised to take the words of the noble Lord, Lord Pitt of Hampstead, very seriously indeed.

Lord Hutchinson of Lullington

I am convinced by what I have heard, that my noble friends have an important point. Therefore, I cannot see any reason for not accepting their advice. I should like to ask the noble Earl this question: what is the advantage in making a breach which is already fairly well defended by the immigration rules into a criminal offence and into a continuing one?

Earl Ferrers

I have great respect for the feelings which the noble Lord, Lord Pitt, has expressed. He has always been renowned for wanting to ensure good relationships between the ethnic communities in our country and those people who have always been here. He is quite right to say that we should do all that we can to encourage communities to settle and to feel as one; that is what we want to do. The noble Lord's concern was that Clause 5 works against that principle. However, I must say to him, with the greatest of respect, that I do not think it does.

Prosecution has always been regarded by successive governments as the appropriate response to overstaying. That means that it is the appropriate method for dealing with people who have broken the law and who have continued to do so. The ability of the courts to deal effectively with such cases has been severely restricted by the limitation of the offence to the day after the leave has expired. I did in fact refer earlier to two such cases. The result of such cases has been that the offence has been deemed to have been committed only on the one day in question. The clause does not introduce a new offence; it merely restores to the courts their previous ability to deal with all those who have knowingly overstayed beyond the expiry of their leave.

The noble Lord, Lord Pitt, said that the provision causes social problems. I do not deny that social problems can be caused in this connection. However, I hope that he will likewise accept that if a person is, for whatever reason, breaking the law, it is unreasonable to say that that situation should be permitted to continue. Immigration policy is bound to be difficult and sensitive. There have to be laws and rules; otherwise there is no control. In this case the rule is quite straightforward. If you have been shown to have overstayed on one day, then you are equally overstaying on the second, the third, the hundred-and-third and the two-hundred-and-third day during the period in which you overstay.

I understand the point of view of the noble Lord, Lord Pitt of Hampstead. However, what we are doing here is to restore the courts to the position which everyone has always considered that they had; that is, when a person breaks the law, on whatever day he breaks it, he is breaking the law.

5.47 p.m.

On Question, Whether Clause 5 shall stand part of the Bill?

Their Lordships divided: Contents, 143; Not-Contents, 94.

Airey of Abingdon, B. Bessborough, E.
Alexander of Tunis, E. Birdwood, L.
Allenby of Megiddo, V. Blatch, B.
Alport, L. Boyd-Carpenter, L.
Arran, E. Brabazon of Tara, L.
Auckland, L. Brentford, V.
Bauer, L. Brougham and Vaux, L.
Beaverbrook, L. Broxbourne, L.
Belhaven and Stenton, L. Buckinghamshire, E.
Belstead, L. Butterworth, L.
Caithness, E. Mackay of Clashfern, L.
Cameron of Lochbroom, L. MacLehose of Beoch, L.
Carlisle of Bucklow, L. Margadale, L.
Carnegy of Lour, B. Marley, L.
Carnock, L. Merrivale, L.
Chelwood, L. Mersey, V.
Colnbrook, L. Middleton, L.
Constantine of Stanmore, L. Milverton, L.
Cottlesoe, L. Monk-Bretton, L.
Cowley, E. Monson, L.
Cox, B. Montagu of Beaulieu, L.
Craigavon, V. Morris, L.
Craigmyle, L. Mottistone, L.
Crickhowell, L. Mowbray and Stourton, L.
Cullen of Ashbourne, L. Munster, E.
Davidson, V. [Teller.] Napier and Ettrick, L.
Denham, L. Nelson, E.
Derwent, L. Nugent of Guildford, L.
Donegall, M. Onslow, E.
Dundee, E. Orkney, E.
Eden of Winton, L. Orr-Ewing, L.
Ellenborough, L. Oxfuird, V.
Elles, B. Pender, L.
Elliott of Morpeth, L. Portsmouth, E.
Faithfull, B. Rankeillour, L.
Ferrers, E. Reay, L.
Ferrier, L. Rees, L.
Fortescue, E. Renton, L.
Fraser of Kilmorack, L. Rippon of Hexham, L.
Gainford, L. Rochdale, V.
Geddes, L. Rodney, L.
Glenarthur, L. St. Aldwyn, E.
Goold, L. St. Davids, V.
Greenway, L. Saint Levan, L.
Grimston of Westbury, L. Saltoun of Abernethy, Ly.
Hanson, L. Sanderson of Bowden, L.
Hardinge of Penshurst, L. Sandford, L.
Harmar-Nicholls, L. Savile, L.
Havers, L. Shannon, E.
Hayter, L. Sharples, B.
Hesketh, L. Southborough, L.
Hives, L. Stanley of Alderley, L.
Holderness, L. Stodart of Leaston, L.
Home of the Hirsel, L. Strange, B.
Hooper, B. Sudeley, L.
Hylton-Foster, B. Swinfen, L.
Iddesleigh, E. Terrington, L.
Jenkin of Roding, L. Thomas of Gwydir, L.
Joseph, L. Thorneycroft, L.
Killearn, L. Trafford, L.
Kimball, L. Tranmire, L.
Kinnoull, E. Trefgarne, L.
Lane-Fox, B. Trumpington, B.
Lauderdale, E. Ullswater, V.
Layton, L. Vaux of Harrowden, L.
Lindsay, E. Ward of Witley, V.
Lindsey and Abingdon, E. Westbury, L.
Long, V. [Teller.] Wigram, L.
Lonsdale, E. Windlesham, L.
Lothian, M. Wolfson, L.
Lucas of Chilworth, L. Young, B.
McFadzean, L.
Airedale, L. Cocks of Hartcliffe, L.
Amherst, E. David, B.
Ardwick, L. Davies of Penrhys, L.
Attlee, E. Dean of Beswick, L.
Aylestone, L. Donaldson of Kingsbridge, L.
Banks, L. [Teller.] Dormand of Easington, L.
Basnett, L. Elwyn-Jones, L.
Blackstone, B. Ennals, L.
Blease, L. Ewart-Biggs, B.
Bonham-Carter, L. Falkender, B.
Brooks of Tremorfa, L. Falkland, V.
Bruce of Donington, L. Fitt, L.
Buckmaster, V. Foot, L.
Callaghan of Cardiff, L. Gallacher, L.
Carmichael of Kelvingrove, L. Galpern, L.
Carter, L. [Teller.] Glenamara, L.
Cledwyn of Penrhos, L. Graham of Edmonton, L.
Gregson, L. Pitt of Hampstead, L.
Grey, E. Ponsonby of Shulbrede, L.
Grimond, L. Prys-Davies, L.
Hanworth, V. Rathcreedan, L.
Houghton of Sowerby, L. Ritchie of Dundee, L.
Hughes, L. Seear, B.
Hylton, L. Sefton of Garston, L.
Irvine of Lairg, L. Serota, B.
Jay, L. Shackleton, L.
Jeger, B. Shepherd, L.
John-Mackie, L. Stedman, B.
Kilbracken, L. Stewart of Fulham, L.
Kilmarnock, L. Stoddart of Swindon, L.
Kirkhill, L. Strabolgi, L.
Listowel, F. Taylor of Blackburn, L.
Llewelyn-Davies of Hastoe, B. Taylor of Gryfe, L.
Lockwood, B. Taylor of Mansfield, L.
Lovell-Davis, L. Thurlow, L.
McGregor of Durris, L. Tordoff, L.
McIntosh of Haringey, L. Turner of Camden, B.
McNair, L. Underhill, L.
Mason of Barnsley, L. Wallace of Coslany, L.
Mishcon, L. Wells-Pestell, L.
Molloy, L. Whaddon, L.
Mulley, L. White, B.
Nicol, B. Willis, L.
Northfield, L. Winchilsea and Nottingham, E.
Paget of Northampton, L. Winstanley, L.
Parry, L. Winterbottom, L.
Phillips, B. Young of Dartington, L.

Resolved in the affirmative, and clause agreed to accordingly.

5.56 p.m.

Lord Mishcon moved Amendment No. 18: After Clause 5, insert the following new clause:

("Appeals against validity of directions for removal. After subsection (2) of section 16 of the principal Act there shall be inserted the words "save in any case in which the person, on his last arrival in the United Kingdom, was granted leave to enter".".

The noble Lord said: I shall refer the Committee to Section 16 of the principal Act, as we have called it, which is the Immigration Act 1971. It deals with appeals against validity of directions for removal. Subsection (2) states: A person shall not be entitled to appeal under this section so long as he is in the United Kingdom, unless he is appealing against directions given by virtue of a deportation order (whether on the ground specifically that he has returned in breach of that order or on the ground that he is an illegal entrant) and is appealing on the ground that he is not the person named in that order". The Committee will appreciate that there is therefore an almost total restriction on appeal as the only ground available is that the person is not the same person as is nominated in the deportation order.

When the Immigration Bill was being debated in both places, if we look at the records there is not the slightest doubt that everyone looked upon an illegal immigrant as someone who entered our shores clandestinely and who had never seen an immigration officer unless it was from a position in hiding from where he had then gone past him. No one then envisaged the description of an illegal immigrant which subsequently emerged; that is to to say, someone who got past an immigration officer by saying that he was a visitor and who was therefore given permission to visit, who then did something which showed that he did not intend to be a visitor but intended to obtain employment, or circumstances arose thereafter which made him feel justified in saying that he wished to stay in another capacity.

If permission was not granted for him to stay in another capacity, he was then an illegal immigrant. He was an illegal immigrant the moment he ceased to have the status of which he had informed the immigration officer. All that we are asking for in this amendment is that somebody who has seen and lawfully passed the immigration officer should have a right of appeal against this very draconian measure of deportation if he did so; that is to say, if he went to the immigration department, passed the officer and thereafter entered the United Kingdom. The clause to which this is an amendment was passed in an atmosphere when nobody thought of the illegal immigrant in the way which I have indicated to the Committee now. I beg to move.

6 p.m.

Earl Ferrers

The noble Lord, Lord Mishcon, has pointed out that he does not approve of illegal immigrants, and I agree. I think that there are two types of illegal immigrants. There is the one who comes up the beach in the middle of the night, tries to get in and deliberately avoids the immigration officer. There was an example a short while ago where some 13 people appeared in a van at Dover. They were welded into the van, not just put into a back cupboard, they were actually welded in. They deliberately tried to avoid going through immigration and seeing the immigration officer. We are all agreed that that type of action by a clandestine entrant is wrong.

However, the other type is the person who tries to enter the country by being dishonest to the immigration officer on arrival, either by telling a lie cr by producing documents which he knows are false. He can be dishonest to such an extent that he fools the immigration officer, who then endorses his passport with a leave to enter to which the person is not entitled.

The illegal entrants affected by the new clause are in that category. They have deceived the immigration officer as to their true intention when, had he known what this was, he would have refused them leave to enter. The Government believe that those illegal entrants should be dealt with in just the same way as a person who is refused entry at the port. We do not think that just because a person has managed to deceive the immigration officer on arrival he should be rewarded with a right of appeal in this country which he would not otherwise have had.

The new clause would provide for a right of appeal to be exercised before removal, which would grant him exactly that reward. It would also mean that the delays in hearing all types of appeal would increase. For a person who has undergone the exercise of deliberately deceiving an immigration officer, I think it is perfectly right that the normal processes should take place.

Lord Renton

I should like to support my noble friend on this for the reasons which he has given. But there is a further reason which would result from this amendment. If the amendment were passed, it would mean that a person had the right to re-enter this country for the rest of his life, if he had once been admitted. That right to re-enter for the rest of his life would be irrespective of how he had behaved when he was away from this country. He might have committed various criminal offences. He might have castigated this country for some reason or another in speeches or in the press of another country. To my mind it is quite unthinkable that this new clause should be added to the law.

Perhaps I may now make a purely technical point. I should have thought that if Section 16(2) of the principal Act is amended, the words which it is proposed to insert should come at the beginning of that subsection rather than at the end of it.

Lord Mishcon

If that were the only objection that the noble Lord, Lord Renton, had to make to my amendment, I should be more than content.

Lord Renton

It is not the only objection. The hypothetical case which the noble Lord has mentioned is not the one which arises. I have very broad grounds of objection on which I have already elaborated.

The Lord Bishop of Manchester

Perhaps I may ask the Minister about those who deceive immigration officers and whether it is quite as simple as that. Is it not possible to envisage cases—and I am sure that there have been quite a number in recent years—where people have come in as visitors without the intention necessarily to overstay? Then later on they have transgressed in that way. I am sure that none of the noble Lords here is supporting those who break the law in this way. But the question of some right of appeal seems to be at stake in such cases.

It seems to me that it is a mistake simply to argue that all the cases with which we are dealing are straight black and white cases of those who have quite deliberately sought to deceive immigration officials at the time of entry, either by being sealed up in vans or by anything else.

Lord Renton

I have just thought of another very serious objection to the amendment. A person who was previously granted leave to enter might have been a member of a Commonwealth country with the right to come here. He might have been granted leave to enter but meanwhile he might have changed his allegiance. He might, for example, have become a Polish citizen. For him to be allowed to enter just the same in those circumstances would surely not be right.

Lord Mishcon

I must say that I find the opposition to this amendment a little difficult to understand. The logic of it would be that those who were unsuccessful in an appeal deserved to be unsuccessful. I should have thought that that was a proposition about which nobody would want to argue. To say that somebody might have come in with Commonwealth nationality and then decided to become a Pole would mean, I should have thought, that his appeal was bound to fail. If somebody had come in, deliberately deceiving an immigration officer, and he appealed, once again I should have imagined he would be an unsuccessful appellant.

Therefore, to put the cases of impossible appeals as a reason for saying that there should be no appeal at all would in my view mean that no appeals in any part of our criminal procedure should ever be permitted because of examples which the noble Lord, Lord Renton, and other noble Lords could give of unsuccessful appellants. I am thinking in terms merely of allowing an appeal so that somebody could conduct it properly and say, "The immigration officer, when he gave me leave to enter, did so perfectly validly. I still claim that it was perfectly valid when he gave me leave and that I did not mislead him. But now, through some technicality or through some supervening event, I have become worthy of the description on the statute of an illegal immigrant. I want to appeal against an order that I be sent out of the country. I did not come in in hiding. I was not smuggled in by anybody. I came in presenting myself to the immigration officer. I am in a different category from those whom Parliament was considering back in 1971 when Section 16(2) was passed".

All that I am saying is: give him the right of appeal. Of course if he is unsuccessful and deserves to be unsuccessful, the appeal will be thrown out. But what about the people who might be successful?

Lord Bonham-Carter

It is very difficult not to support the noble Lord, Lord Mishcon, on this point. On Second Reading I raised the question of an American publisher here who was told that his visa had run out. He went to the Home Office to have it renewed. He had to wait eight hours at Lunar House. At an interview he was told that he could have a visitor's visa in due course but that delays in issuing the working visa he had previously were such that he could not be given the visa immediately. That person has not yet received his visitor's visa and he is probably overstaying.

Let me give another case which came before a tribunal recently. A biochemist in Cambridge was following an advanced scientific course of some importance. He was offered a job by a local scientific company. Had he taken it, his work would probably have brought great benefit to this country. However, the authorities presumed that he was going to overstay his leave by taking the job. It was only on appeal to the tribunal that he was not deported.

The immigrants' appeal tribunal has in many cases rectified mistakes which would otherwise have been made. It is no good the noble Lord, Lord Renton, who at this time of the night, as I said last night, becomes imaginative and fanciful, inventing all kinds of cases which he thinks disqualify people from coming here. To criticise this country is apparently a new and terrible offence which justifies deportation.

As the noble Lord, Lord Mishcon, said, the point is that the appeal provides the means whereby administrative mistakes, which we must confess do occur, can be rectified and whereby, as we said yesterday on another clause, the process of decision-making is improved and justice can be done.

Lord Mottistone

The noble Lord, Lord Bonham-Carter, mentioned the case of the biochemist whose position was saved by appeal. Why is he saying that this extra clause is necessary if somebody can be saved by appeal? That seems to be a non sequitur.

Lord Mishcon

With the leave of the noble Lord, Lord Bonham-Carter, I shall answer the noble Lord, Lord Mottistone. We are talking only about an appeal where a deportation order has been made. In the case that the noble Lord, Lord Bonham-Carter, mentioned, the person who obviously had some amount of culture and ability was able to present his case however it may have been deferred to the Home Office in the normal way. Very often, immigrants do not have that capacity.

We are only asking for this right of appeal where a deportation order has been made in respect of someone who actually presented himself to the immigration officer and was not smuggled into this country. We are asking that he should at least have the right to appeal as regards the validity of the immigration officer's original permission and the fact that the person concerned had not misled anyone.

Earl Ferrers

I think that there is some misconception here. The noble Lord, Lord Mishcon, is entirely right when he says that we are dealing with deportation orders. We are dealing with illegal immigrants; those who have come in illegally and those who have found that their stay is illegal. The noble Lord rightly says that there should be an appeal. There will be an appeal but it will take place in the country from which the immigrant comes. That is where the appeal procedure is considered.

The noble Lord, Lord Mishcon, by this amendment, would permit a person to stay when that person has deceived the immigration officer by saying that he was the brother or sister of somebody and that he had a right to stay here. The immigration officer believed that and therefore stamped that person's passport with the permission to enter. So that person has been given leave to enter on what have been found to be false grounds. In that case we consider that it is perfectly right that there should be an appeal but not that the person should continue to stay in this country simply by virtue of the fact that he has given incorrect information.

6.15 p.m.

Lord Mishcon

The noble Earl talked about entering the country illegally. I am sure that the noble Earl did not intend to create that impression but anyone listening to him would imagine that someone is only an illegal immigrant if he enters this country illegally. That is not so. A person can become an illegal immigrant having entered this country perfectly legally. He comes in saying that he is a visitor and intends to be a visitor. Subsequently events may occur—I have given this example before—where the visitor's permit that was obtained is no longer a valid permit. Then somebody says that under the immigration rules that person is now strictly an illegal immigrant because he came in as a visitor but is no longer a visitor. That man will have no right at all of appeal as the law now stands except that, as the Minister has said a little blandly, he can of course appeal once he gets back to wherever he may have come from. That may be thousands of miles away. Is that right?

Earl Ferrers

I wonder as the bullets go flying past whether we are not meeting up with each other. We may be at slight odds here. In explanation to the noble Lord, I would say that two matters are involved here. One is where a person comes into the country who would not have been given permission to come in on the facts had it not been for the fact that he deceived the immigration officer. That is one category of person. To that category of person, we say that when we discover the fact that he has been allowed in because of a falsity of information he should have the same treatment as if he had appeared and given the true information which would not have permitted him to come into this country. Therefore it is that moment when the deportation order is considered.

Where a person is admitted by an immigration officer and then later applies for an extension of stay before the expiry of his condition, of course he gets a right of appeal and that takes place in this country. I think that we may be getting confused as regards those two different kinds of case.

Lord Mishcon

I do not think that there is confusion. The right of appeal should exist in order that a person can put a case that he did not mislead the immigration officer. That person should be able to put forward a case that when he said he was a visitor he meant that he was a visitor and that was the truth. There should be a right of appeal against someone who says that he does not think that that person was telling the truth, that he deceived the immigration officer and that he never intended to be a visitor at all. That person may allege that the immigrant intended to come here and tried to stay here for a very different reason. That person may then declare the immigrant to be an illegal immigrant and make a deportation order.

It is in those kinds of circumstances among others that there should be a right of appeal. Once the man has gone through the immigration office I would never presume to ask the Committee or the Minister to grant a similar right to anybody who had smuggled his way into this country deceitfully.

Earl Ferrers

I think that I understand the noble Lord's concern. He has put it very fairly and very clearly. I hope that I shall be allowed to consider what the noble Lord has said and to see whether there are conditions which he may have identified which are extraneous to those which we believe have been identified. I think that the conditions which we have in the Bill are right but I shall certainly take into account what the noble Lord has said.

Lord Mishcon

That was a very gracious response on the part of the noble Earl. I accept what he says and in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord Bonham-Carter moved Amendment No. 19: Page 4, line 11, at end insert— ("(4) Immigration rules made under this or any previous Act shall be so framed that no spouse or any other family member seeking to join a person settled in the United Kingdom shall be subjected to more onerous requirements than those imposed in this section on spouses and family members of nationals of EEC Member states.")

The noble Lord said: I beg to move this amendment even if I cannot imitate the persuasive and insinuating eloquence of the noble Lord, Lord Mishcon, who has just achieved a considerable success. Clause 6, in accordance with the Treaty of Rome, allows European Community citizens to come here, to work here, to set up businesses here and to provide an offer of and receive goods and services. They can also bring their spouses, their children and their dependants. That seems to me to be a most reasonable, fair and humane ruling in accordance with the underlying spirit of the European Community and the right of families to live together.

However, it seems to me—I am ready to be corrected—that that produces an anomaly. It places the citizens of the European Community countries, other than this country, in a more advantageous position than that of British citizens. A British citizen who marries a foreign spouse—a non-EC spouse—is subject to restrictive immigration rules, including marriage tests. An Irishman, a Frenchman or a Greek can do so without being subject to the rules or tests. That seems to me to be the kind of anomaly which the noble Earl, Lord Ferrers, will find horrifying and indefensible. We know that he feels strongly about anomalies.

Once more, I argue that the Bill, with its restrictive background, is levelling down instead of levelling up. European Community citizens will be subject to a more humane and civilised regulation than our own. I therefore urge the Government to accept this modest amendment, which is eminently reasonable for a number of reasons.

First, the Government, who dislike anomalies, have produced an enormous anomaly. Secondly, the amendment as proposed reduces the scale of the anomaly. Thirdly, the amendment levels up rather than down by reinforcing the right of family unity instead of restricting it. If the noble Earl believes his own arguments and those of his party on the need to avoid anomalies and the importance of family unity, he will surely be persuaded by the sheer logic of his position to accept this modest and reasonable amendment. I beg to move.

Lord Renton

I am one of these who believe that it was right to enter the European Community. However, I do not believe that it was right to have such a generous immigration policy between members of the European countries. I have some sympathy with the noble Lord when he says that Europeans will be able to come here and settle more easily than Commonwealth immigrants. But to accept his amendment seems to me to be likely to lead to much further immigration from the Commonwealth than will be the case if we decline the amendment.

The noble Lord has professed himself as being against mass migration. We heard earlier that 35,000 people were admitted for settlement in 1987. Thank goodness that was fewer than the number admitted previously. However, that was still far too many people. We must take stock of our social position, our unemployment and the fact that this is a heavily populated country and that we have a housing problem. I should be very anxious if the amendment were accepted.

The Lord Bishop of Manchester

I support the amendment and I should like to draw attention to the fact that recently there was some controversy between the present Home Secretary and leaders of the British Council of Churches over precisely that point. The British Council of Churches issued a briefing on the Immigration Bill in which it accused the Bill of being racist. That briefing said: the Bill clarifies even further the rights of EEC and other foreign nationals to come into Britain, making it clear that such people do not require prior leave to enter this country. It needs hardly to be pointed out that the Bill therefore enables white people from EEC countries to come and go more freely while further restricting the rights of Commonwealth citizens and their families who are mostly black, and indeed in some cases denying any hope to them of a family life here in Britain where they may have lived and worked for more than 20 years". I think that there is a point of principle at stake. We can all appreciate the fears expressed by the noble Lord, Lord Renton, concerning pressure for immigration into this country and the possibility of rising numbers. Let me say in parenthesis on that matter that when the noble Lord talks about the problems of poverty, housing and other such matters, of which many of us are all too aware, we must also look at the problems of third world countries. It is not immoral for people to seek a better standard of living by moving from one country to another.

On Sunday I went to a most moving occasion where more than 200 leaders of the Jewish community were celebrating 200 years—1788 to 1988—of Jewish settlement in Manchester. That was moving in terms of the numbers of men and women from that community who have contributed substantially to the British community over those years. They often came from conditions of persecution and poverty. It is therefore understandable that we have that kind of pressure.

The amendment, to my mind, does not open the floodgates, to use a rather dangerous term. It is restricted to British citizens, and those are the people we are talking about. To return to what the British Council of Churches said, we are faced with a situation in which, in implementing a policy of open access for EC nationals (however much the noble Lord, Lord Renton, may disagree with that policy, it is here to stay) and, at the same time, constantly putting the screws on those coming from Commonwealth countries who are related to British citizens in this country, inevitably the implication of such legislation is racist. That is a very serious matter when we all know that we have racial tensions here in Britain and especially in our inner city areas. I ask the Committee seriously to consider the amendment because I think it has a great deal of force behind it.

Lord Renton

Perhaps the right reverend Prelate will allow me to intervene. I greatly appreciate the way in which he has expressed his views. Does he say that racial tensions will be increased or diminished by more immigration from Commonwealth countries?

The Lord Bishop of Manchester

If I may say so, that is a difficult matter to determine. There is evidence to show that racial prejudice is higher in areas where there are very few black people than in areas where there are substantial numbers of black people, in spite of the pressures on housing and jobs. However, I take the point that none of us here would stand for an open policy of immigration. That is not what we are talking about. We are talking about people who are related to black British citizens who should be allowed to enter the country without being at a disadvantage when compared to EC nationals.

The Earl of Onslow

Surely what we are arguing about is that possibly it might be better to take a view that fewer coloured people should come in so that those who are here can be better looked after. I agree with the noble Lord, Lord Bonham-Carter, when he says that the situation leaves a not very nice feeling. There is an illogicality there. However, I believe that I am persuaded by the arguments put forward by my noble friend Lord Renton. What we are trying to do is to make absolutely certain that the pressures on those who are here are as small as possible so that they can be integrated and can contribute to and benefit from what is after all a fine civilisation.

That is why they all want to come here. If by keeping a few more out we improve the lot of those who are here I think that I come down on that side of the moral argument rather than on the other side. I accept that it is a difficult question, but I think that on the whole I come down on the side of the Government.

6.30 p.m.

Baroness Seear

Perhaps I may respond to the noble Earl, Lord Onslow. Surely we are not talking about letting large numbers of people come into this country. We are talking about spouses and other family members, which I understand means husbands, wives and children. There is a limit to the number of husbands, wives and children that anyone can have so that we are concerned only with restricted numbers.

As for making their lives more tolerable, most of us, if not all, would feel that having your spouse and family around makes life more tolerable, not less. There are different ways of interpreting life being tolerable. We must not exaggerate the number of immigrants that this amendment will bring in.

Lord Renton

With respect to the noble Baroness, it is not the heads of families who constitute large numbers; it is the wives and children who follow them and quadruple the numbers. One really cannot say that because the amendment refers only to spouses or any other family member it is a relatively trifling matter.

Lord Pitt of Hampstead

Perhaps I may ask the noble Lord whether he thinks that on balance it is better that families be divided rather than united.

Lord Hylton

While the noble Lord reflects on that question, perhaps he will also consider a further proposition. If we are willing to have an able-bodied man in this country surely we should not also be willing to deprive him of his next of kin.

Lord Renton

It is not necessary for me to answer that question. It has already been agreed between governments of both complexions and among all parties that our immigration law is based upon family unity. However, that means that in days of heavy unemployment we do not need more heads of families.

Baroness Seear

Perhaps the noble Lord, Lord Renton, will take note of the number of Asian people who have come to this country and have increased the number of jobs very considerably.

Lord Renton

I think that that is true of many Asian people but not of all.

Lord Pitt of Hampstead

With respect to the noble Lord, that is not the point. We are not talking about heads of families. The noble Lord, Lord Renton, has introduced a red herring. We are talking about spouses and children. All the amendment proposes is that when the rules are drawn up the rights of those who are settled here to bring their spouses and their children into this country should be no less than the rights of EC nationals. That is all that it asks. We are talking about spouses and children.

I asked the question because I wanted the noble Lord, Lord Renton, to put his mind— which I know is very sharp—to that point. In making it difficult for people to have their wives and children with them we are saying that on balance we think it is better that families should be divided rather than united if as a consequence we have fewer immigrants. That is the point that I put to the noble Lord. Do we really think that by dividing families we create a better society than by uniting them? If we think that we create a better society by uniting families we ought to make it less difficult for families to be united.

Earl Ferrers

In moving the amendment the noble Lord, Lord Bonham-Carter, said that he found an anomaly and he did not like anomalies and wanted to put it right. Perhaps we can see what the noble Lord's amendment proposes. It says: Immigration rules made under this or any previous Act shall be so framed that no spouse or any other family member seeking to join a person settled in the United Kingdom shall be subjected to more onerous requirements than those imposed in this section on spouses and family members of nationals of EEC Member states". The noble Lord, Lord Bonham-Carter, said that this is just a modest little amendment and perhaps we could accept it. In common parlance, I should say it is a pretty good thumper of an amendment!

The right reverend Prelate the Bishop of Manchester said that the British Council of Churches considered the Bill racist because if we allow in more people from the Community we will be encouraging more white people at the expense of more black people. I respect the right reverend Prelate for his views but I thought that that expression of racist was a fairly tough one, particularly with regard to this amendment. Our membership of the European Community carries with it a number of benefits and also a number of obligations. The rights of family reunion which are available to European Community nationals arise from our obligations under Community law and are reciprocal. People from the Community can come into the United Kingdom and people from the United Kingdom can move to the Community. It is a free movement area.

The amendment of the noble Lord, Lord Bonham-Carter, proposes the remarkable idea that our obligations under Community law should now be made the basis for this country's immigration policy. I do not believe that that is right. I think that unilaterally to extend the rights of European Community nationals to a much wider category of people would be irresponsible.

During 1987 some 45,500 people were accepted for settlement in this country—no mean number. Just over 2,000 of those came from other European countries. I think that we will find ourselves in an unfortunate position if we confuse the obligations which emanate from our accession to the European Community—obligations which are reciprocal between various countries—and our immigration rules.

Lord Renton

No doubt my noble friend can confirm that not all Commonwealth countries from which immigrants come offer reciprocity with the United Kingdom. Many of them have very stringent immigration rules.

Lord Bonham-Carter

I have listened with great interest to the noble Earl's answer and to the various comments made by the noble Lord, Lord Renton. I remind the noble Lord, Lord Renton—not for the first time—that we have net emigration from this country and not net immigration. Therefore, the idea of immigrants pouring into this country and overcrowding it is a figment of his imagination.

With regard to the figures which were produced by the noble Earl, Lord Ferrers, I should like to ask him how many of those 45,000 were dependants and children. That seems to me to be a totally different kind of figure from that for immigrants who are heads of families. I suspect that relatively few heads of families are coming at the moment for the simple reason that there are very few jobs for them to come to. In the past, and, I suspect, at present, immigration patterns have conformed very closely to patterns of employment, as anyone who looks at the figures will see.

It is very odd to express horror at the limited suggestion in the amendment that we should allow people settled in this country—British citizens—to bring over their wives and children and to regard that as conferring on other people all the obligations which we owe to our EC partners. I am only suggesting a very limited number which would reunite the family. I do not suggest spreading all over the world the advantages that we receive from the European Community. In any case that could not be done. One would have thought that those who are terrified of mass immigration would be more alarmed by the prospect of 300 million people in the European Community having a right to enter this country. However that does not appear to worry most of the opponents of this little amendment.

The noble Earl has said that it is a very big amendment. When I said it was modest and reasonable, I was in fact quoting his description of the Bill, which he described as modest and reasonable. I think it is pretty immodest and unreasonable, so I suppose it is only fair that he should think my little amendment immodest and unreasonable while I believe it to be modest and reasonable.

The point with which he has not dealt at all is the anomaly whereby in their own country British citizens are put in a position inferior to EC citizens. As an example, a French citizen from Martinique could settle in this country and bring over his wife and children even though he were married to a Russian. He would not have to conform with the rules or the marriage test which an English person who married a Russian would have to satisfy. That seems to me to be anomalous because foreign nationals (as they must be known, even if they are from countries within the European Community) are put in a position which is different and better than our own. That is the anomaly, which I think the noble Earl must take on board.

Secondly, I must reiterate that I am simply asking him to allow British citizens the same right to bring in their families as is allowed to EC citizens. I urge him to consider that the numbers involved are not very large. Perhaps he will respond to that suggestion.

Earl Ferrers

The noble Lord, Lord Bonham-Carter, asked me to comment on the fact that we should be putting foreign nationals in a privileged position compared with British citizens, which he thinks is unfair. He referred to his "little" amendment and said that I had called the Bill modest and reasonable. Of course it is modest and reasonable without the noble Lord's amendment, which would make it unreasonable.

I find difficulty in meeting the noble Lord over an argument which seems to refer to two totally different matters: on the one hand our membership of the European Community, which entails certain duties and reciprocal obligations, and on the other our immigration policies. They are two totally different matters. It is rather as if I were to ask the noble Lord which he preferred: Piccadilly Circus or Tuesday afternoon. The two are not comparable. To suggest, as does the noble Lord's amendment, that in this sphere our immigration policy should be equivalent to our obligations in the European Community is—the noble Lord shakes his head and I see that the noble Baroness shakes her head in agreement with him. If I have it wrong, I shall by all means give way.

6.45 p.m.

Lord Bonham-Carter

I am most grateful that the noble Earl should give way. I am not discussing immigration policy. All I am suggesting is a measure which concerns the families of British citizens. It does not concern immigration policy generally. I am not suggesting that there should be an open door with free movement of labour within the whole world such as there is within the European Community. I suggest only that, as regards uniting families British citizens should have the same rights as have EC citizens in this country.

Lord Wigoder

I should like to ask another very simple question. Does the noble Earl regard the right of an EC national to live in this country together with his wife and children as being in principle a good or a bad thing?

Earl Ferrers

I love such little, short, simple questions. The noble Lord, Lord Wigoder, knows perfectly well that within the Community there are arrangements by which citizens of countries which are members of the Community can come into this country and bring with them their wives and families, and members of the British community can go into other countries of the European Community and take with them their wives and families. That is part of the Community involvement. It has nothing to do with immigration rules.

The noble Lord looks surprised, but it does not have anything to do with immigration. One who is a member of the Social Liberal Democratic Party (if I have the name correct) and who has been so much in favour of the Community, will readily accept the philosophy behind the Community which is that it should be one state and there should be free movement within it. That has nothing to do with immigration; it concerns our obligations to the Community. I do not think that one should confuse immigration into this country with our obligations to the Community.

The noble Lord, Lord Bonham-Carter, is always very knowledgeable about these matters but I think that inadvertently he may have misled the Committee when he said that there was net emigration and not immigration. Between 1983 and 1987 there was a net immigration to this country of 180,000 people. He asked me how the figure of 45,000 people admitted in 1987 is broken down. I can tell him that 14,000 were wives and 8,000 were children. I can only repeat—and I do not wish to do so ad nauseam—that we must not confuse immigration policy (which is the subject under discussion) with our obligations within the Community.

The Lord Bishop of Manchester

Perhaps I may respond to the point that is constantly being made by the noble Earl when he says that one must not confuse immigration policy with what happens over European Community policy. I do not think that that is strictly true.

If one goes back to the debates about our entry into the European Community, it will be remembered that at that time there was a great deal of hesitation on this side of the Chamber on the part of some who thought that we could be forming a kind of rich man's white club of Western nations in the face of vast, burgeoning sections in other parts of the world, many of them very impoverished. That was a matter of great anxiety to many people, including myself. In the end I came down on the same side of the fence as the noble Lord, Lord Renton, in favour of British entry into the Community. I felt it was right to do so but I was always very conscious of the effect on race relations that this policy would have on a world scale in the years ahead. I believe it should be allied with an open and generous policy over immigration on the part of the EC countries.

I do not accept the argument that there is simply no relationship between the two matters. I think that there is a relationship because the charge of tending to racism is a very damaging one in the world today and indeed can affect our standing among the nations of the world in the United Nations and so on.

Lord Renton

Perhaps I may just put to the right reverend Prelate that the crux of the matter is that within the European Community we have complete reciprocity as regards immigration—

The Lord Bishop of Manchester

Yes, about which you have yourself said—

Lord Renton

Let me finish the sentence, which goes on: but in the Commonwealth we do not have such reciprocity.

Baroness Seear

To some extent this argument about the European Community is not the centre of our discussion. We are talking about the ability of immigrants to this country to bring in their wives and children. That is the heart of the argument. The Government either accept that it is desirable that those immigrants should not be separated from their wives and children, or they are prepared to continue to exclude them. It is in the interests of the family and, I should have thought, stability among the immigrant community, to have their families with them as is normal and with all that that entails, rather than for them to be separated. That is the heart of this amendment.

Earl Ferrers

The noble Baroness understandably points to the heart of the amendment, which, she says, has nothing very much to do with the European Community. With the greatest respect, I must say to her that the amendment of her noble friend Lord Bonham-Carter has everything to do with the European Community. That is what it refers to.

Perhaps I may explain to her my difficulty. She is quite right when she says that it is important for families to be together. Of course it is important. However, there have to be rules and regulations. There are many rules and regulations which have permitted families to come into this country, but the noble Baroness would be the first to accept that it is necessary for people to know what the rules are to make quite sure that they accord with them before they come in. That is the point of our immigration policy—to decide who should and who should not come in. That is the reason for our having immigration rules.

This part of the amendment deals specifically with the distinction, as the noble Baroness would see it, between what happens with people who come from other countries and those who come from the European Community. The right reverend Prelate said that at the time of our entry into the Community he was among those who expressed concern about the European Community becoming a rich man's white club. I think he was entering a highly respectful and philosophical point of view of the responsibilities which a community, if it were rich, should have to those countries which were less fortunate than itself. I do not think that there is any difference between us over this.

Of course we accept that in this country and the Community as a whole we have responsibilities to other parts of the world where people are less fortunate. I believe we have carried out many of our responsibilities in this country, particularly with regard to immigration, very fairly and generously. But there still have to be some rules, otherwise the whole immigration policy is open-ended.

I can see that I have not satisfied the noble Baroness because she is looking most concerned, but I can only assure her that the amendment specifically muddles the two things up—our obligations to the Community and our immigration policy.

Lord Bonham-Carter

I am grateful to the noble Earl for his answer to my and other people's questions arising out of the amendment. But he says that it muddles things up. It muddles them up because these two matters meet in the Bill. The Bill has a clause which deals with the rights of members of the European Community. I am not muddling this up; it is here facing us in this clause. What I am talking about is the fact that it produces, as I have said two or three times, an anomalous position for British citizens.

I am not talking about immigration policy, but the right of people here to bring their families over. I should have thought that that was not a great threat to the population of this country. The noble Earl has agreed that it is good for families to be united. I feel that it is a gesture which the Government could make with advantage to us and to all those families. However, I can see that I have made not the slightest impression on him. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 agreed to.

Clause 8 [Charges]:

Lord Bonham-Carter moved Amendment No. 20: Page 5, line 3, after ("prescribed") insert ("(save that no fees shall be so prescribed in respect of children under the age of 18)").

The noble Lord said: If I may I shall take Amendments Nos. 20 and 21 together as that would be to the advantage of the Committee. Clause 8 allows the Home Secretary to charge a fee for the provision of special immigration services and to charge for granting indefinite leave to remain for someone who is resident in this country. In so far as these measures speed up the passage of people through Heathrow and other airports, I do not think I disagree with it; nor do I object to this privilege being granted by being paid for. It can be argued that if some people move very quickly through London airport, others move through rather more quickly, and that is probably to the benefit of one and all.

However, I draw the noble Earl's attention to a danger which the move towards pre-clearance procedures brings. It will have the effect of removing immigration decisions from ports of entry to places far away, where decisions of immigration officers will be much more difficult to resist or challenge, where passengers may be refused permission to board an aeroplane and where they will be without appeal rights or the formalities which the visa system requires.

Clause 8 also gives the Home Office power to charge fees for the grant of indefinite leave to remain here. Indeed no such leave can be granted unless the fee is paid. These fees now form a quite significant barrier for the poorer, and especially larger, families seeking reunion in this country. Fees for people already here are particularly damaging. People already here and unable to pay the fee would then face the threat of deportation, even though they may have qualified under the immigration rules. I point out to the noble Lord, Lord Hylton, that refugees might equally, as I understand it, face expulsion under this sytem.

The question to which I would like an answer is how much these fees will be. They have risen fairly sharply since 1984, when they were £10, to what they are now, which is I believe £50. If they were to be raised further they could be a means of forcible repatriation by the back-door. That is something I believe we should watch.

What is the basis of these fees? Will Parliament have any control or will it be yet another discretionary power to lie entirely in the hands of the Secretary of State? I do not think that this should be neglected. It is important that we should have some reassurance on this score.

Nor am I quite clear from the clause what exemptions from this provision there will be, how they will be granted and on what basis. My amendments address themselves to these points. They are entirely consistent with amendments moved earlier. They seek to facilitate the reunion of families at the earliest time and at the lowest cost. That was the argument we deployed on Second Reading.

First, to achieve this end Amendment No. 20 excludes children from the payment of fees. The second amendment allows the Home Secretary in this case a benign discretion to waive fees where there is a deserving case. Neither of these amendments seems to be in any way unreasonable. They are both reasonable and modest and I trust that they will elicit the support of the noble Earl and that we shall have a constructive and positive answer from him to this modest suggestion. I beg to move.

Lord Elwyn-Jones

I rise to support the noble Lord in regard to both Amendments Nos. 20 and 21. Clause 8(1) states in terms that it is in the power of the Secretary of State to make the regulations. We shall come to the role of Parliament when we consider Amendment No. 22. In Clause 8(3) there is a power to annul by resolution of either House. Here is a very important power given to the Secretary of State with a minimal power of Parliament to interfere with it. There is a danger that it could be capable of being used oppressively and restrictively. There is no limit to the amount of the fees that are payable. There is no attempt to set out the fees in the Bill. We shall have to wait for the regulations, at the discretion of the Secretary of State, to discover how much the fees could be. They could become an instrument of further restriction in addition to the restrictions that we already find contained in the Bill and about which we have been arguing for two days.

We shall wait to hear whether there will be any indication tonight from the noble Earl, who has been struggling so valiantly and so competently with this matter, as to what the Government have in mind about the amount of fees. There is the curious phrase, at such times as may be prescribed". Are they to be an annual event, a recurrent event or what? We need to know a great deal more about this before we let it go through. I echo the observations of the noble Lord, Lord Bonham-Carter, that the Secretary of State should be given the power and should want the power to waive the payment of any prescribed fees in suitable deserving cases. Otherwise this power could indeed become oppressive, socially intolerable and divisive. Therefore I support both amendments.

7 p.m.

Lord Pitt of Hampstead

I should like to support these amendments and commend them to the Committee. The noble and learned Lord, Lord Elwyn-Jones, will remember that during the Committee stage of the nationality Bill I moved similar amendments. I moved in particular an amendment to give the Government power to waive the fee. I was surprised when they resisted it. We forced it to a Division and lost.

If the Government had accepted my amendment on that occasion, the country would have been saved the embarrassment that we have had recently over people who have served in the Falkland Islands, have then been asked to pay to be British citizens and have refused to do it. I did not know at the time that we were going to have a war, but I did have a case of a chap who had served in Northern Ireland and whose resentment at paying the fee was because he had put his life on the line in Northern Ireland. That was the case put to the Government at the time and it was brushed aside. I am hoping that they do not brush this aside again. Having the power does not oblige the Home Secretary to waive the fee, but he should be glad to have that power because there will be occasions such as the example I have instanced under the nationality Bill when it will be good for the Home Secretary to have the power.

I hope that on this occasion the Government will accept Amendment No. 21. I also think it is a good thing that they should accept Amendment No. 20. If you have three or four children the cost can be prohibitive, whereas if one is merely paying for adults it would not be quite so difficult. I hope that the Government will accept these two amendments.

Earl Ferrers

Clause 8 permits fees to be prescribed in connection with applications for settlement in this country. They are enabling conditions only. We have not yet taken any firm decisions on how they should be implemented. The powers are flexible. They are powers which enable my right honourable friend the Home Secretary to prescribe in regulations different fees in different cases and to exempt such classes of applicant as he thinks fit. So these are general powers and they are enabling powers.

The amendments, in particular the first one, seek to rule out the possibility that minor children under the age of 18 should be asked to pay for the grant of settlement. The broad object of setting up a framework of charging for settlement is in order to enable us to pass on the costs which are incurred in granting settlement and which at present fall on the taxpayer to the applicants themselves. These costs arise with applicants who happen to be minors in just the same way as they do with those who are adult. We do not think it would be right to rule out the possibility of charging for minor applicants.

It would be possible for the Home Secretary to prescribe a new fee for minors in regulations under Clause 8 or to provide for concessions, possibly in the form of those which apply to minors of the same family applying at a single time for citizenship, where only one fee is payable. That is a matter about which the noble Lord, Lord Pitt, was concerned.

We then need to consider how the concessions should be funded, whether by the taxpayer or by other categories of applicant. Whatever framework the Government decide upon for minor children in due course, the Committee will have the opportunity to debate the matter because the regulations under Clause 8 are to be subject to the negative resolution procedure. Therefore it will be for Parliament to consider and discuss this.

The noble Lord, Lord Bonham-Carter, asked how much the fee would be. At present it has not been decided what the fee is likely to be, but it is expected to be in the region of £50. We do not expect that those who cannot pay fees for settlement will be deported. The normal course would be to grant them limited leave to remain in the United Kingdom. In any case, we would not deport genuine refugees because this would be a breach of our international obligations.

With regard to the specific question of concessions and deserving cases, there is nothing to prevent the Home Secretary prescribing reduced or nil fees in the case of, for example, those who are on low incomes. We should not be able, however, to reduce or waive fees in individual cases which are not included in any relevant category which would be dealt with in the regulations. There would be severe difficulties in making subjective judgments about compassionate circumstances or the ability to pay in individual cases. We think therefore that any concessions are best left to the regulations themselves where the tests can be spelt out in clear terms. Parliament, as I said, would then be free to debate the matter. I hope that I have been able to give the Committee some indication of what the Government have in mind.

Lord Bonham-Carter

If I understand the noble Lord's answer aright, the Home Secretary will be able to exempt certain classes of people rather than individuals and these will appear in the regulations.

The regulations are subject only to a negative resolution, which means we could only pray against them. It would be far more satisfactory if it was an affirmative resolution in which this matter could be properly debated and discussed. I wonder whether that it a possibility. This point comes up under the next amendment where it would be more open to discussion.

As far as minors are concerned, it seems to me that we revert back to the old argument: how serious are the Government in trying to take measures which will unite families, or are they just determined to place obstacles in the way of that unification? I should have thought that it was relatively easy to exempt from the charge children under 18 who are joining their families here. The motive behind this is a very simple one. It is in the interests of our society that the children of immigrants who have moved here should come at as early an age as possible so that they can learn the language and the skills which will be of advantage to them and to this country when they grow up.

It is therefore to our advantage to make the procedures simple and the costs low to the families involved. It is with that object in mind that this amendment was drafted. I do not believe that the actual per capita cost of exempting them would be such that it should prevent us from doing so. The gains in social cohesion in the skills of those children when they grow up would far outweigh the fees which would be lost.

I hope that I shall be able to satisfy myself in the next amendment. If we can get this changed to an affirmative resolution as opposed to a negative one I should be satisfied that we could get somewhere at a later stage on this amendment.

Earl Ferrers

Before the noble Lord sits down I take issue with him over one point, and I will do it in the most gentle way I can. He was slightly provocative when he said that it depends whether the Government are keen to allow people in or whether they want to place obstacles in the way of uniting families. That is really going over the top, if I might suggest it. He must know perfectly well that the point of this charging is in order to cover a cost which is at present paid by the taxpayer. I have explained that these figures will be produced and it will be up to Parliament to debate the matter and approve them. To say that the recouping of expenditure which at the moment is borne by the taxpayer is a method of putting up an obstacle for the uniting of families is not quite right.

Lord Bonham-Carter

I would defend exactly what I said. This is just one of many measures taken in this Bill which, far from facilitating unification of families, makes it more difficult. In this case it makes it more expensive. I do not think that is to be denied.

The Government talk about themselves; the Conservative Party talks about itself the whole time as the party of the family. The Government have had endless opportunities in the course of this Bill to prove those claims by their actions. They have not done so. I do not think it is unreasonable to suggest that in this clause they could have done something to facilitate the reunification of families rather than otherwise, and they have done it otherwise. That is why I made that comment. I do not think it is unreasonable or provocative. I think that it accords with the facts of the case as I see them.

As I was saying before the noble Earl's intervention, I feel that it is important that we should have an opportunity to debate this matter under an affirmative resolution rather than a negative one. This will arise under the next amendment. In the light of that, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

7.15 p.m.

Lord Elwyn-Jones moved Amendment No. 22: Page 5, line 11, leave out from ("to") to ("House") in line 12 and insert ("approval by a resolution of each").

The noble and learned Lord said: What has been said so far on Amendments Nos. 20 and 21 has underlined the importance of Amendment No. 22, as the noble Lord, Lord Bonham-Carter, said. It has made it all the more essential that the powers given to the Secretary of State to prescribe fees—the amount of fees, the times when they are payable and by whom they are payable—should be under the possibility of competent and firm parliamentary control. We all know how very limited the process of negative resolution is.

What has transpired—and I do not criticise the noble Earl for this—is that we are dealing in the debate this evening with the unknown as to the extent of the fees. We are given no assurance of any relaxation in deserving cases—not yet, at any rate. Therefore the importance of parliamentary control over the actions of the Secretary of State has been underlined time and time again in almost every word in the intervention.

We earnestly urge the noble Earl to agree to this amendment, which calls for the insertion of the requirement of a resolution of each House before the Secretary of State can exercise the power, because when one looks at Clause 8(1) it is of very great importance. It can be effective to prevent a person who otherwise would get leave to enter the country from coming in. It provides that: The Secretary of State may with the consent of the Treasury make regulations prescribing fees to be paid, at such times as may be prescribed, in connection with any application for indefinite leave to remain in the United Kingdom … and no such leave should be granted unless any fee payable … has been paid. It is a very powerful control that is given as an additional factor in this somewhat unhappy Bill and, therefore, it is not a matter of minor significance. It can be used effectively to undermine the successful application for indefinite leave to remain in the United Kingdom.

In those circumstances the requirement that we wish to impose in Amendment No. 22 is an absolutely crucial one. It is perhaps fitting that it should have come in as a climax to the discussion of this Bill because it underlines so many of the fears that we have been ventilating not only on the official Opposition side but with great energy and ability by the noble Lord, Lord Bonham-Carter, if I may say so.

This amendment goes in some ways to the root of much that we have been discussing. I know that the Minister will take very seriously what we speak about with gravity and I hope accordingly that he will approve of Amendment No. 22. I beg to move.

Lord Mottistone

When I first took a more active part in your Lordships' House some 12 years ago, when the noble and learned Lord who has just so eloquently moved this amendment was sitting on the Woolsack, I remember being very emphatic and making powerful speeches about the wickedness of the negative procedure and the importance of the affirmative procedure. That was in the early days when I did not fully realise that there was a virtual convention between this place and another place that, if there is any difficulty about an affirmative procedure, the Government will first put the affirmative procedure Motion before the other place and then we cannot resist it. That was the case when Members opposite were in government and it is the case now. That takes a lot of the steam out of the value to this House—I do not necessarily speak about another place—of having the affirmative procedure.

I have also found that there has never been any difficulty if ever I have needed to and wanted to pray against a negative statutory instrument. Both sorts of government have been thoroughly accommodating about this. In my experience there has been no difficulty with it. Therefore, I have come to feel that as far as concerns this place—it may be that in another place it is another matter, but I do not think that is any business of this Committee today—too much is made of the benefits of the affirmative procedure for parliamentary control of orders.

Let us face it: orders themselves are limited in the control that we have over them because, by their nature, we cannot amend them. I have always thought that was bad. If we had a procedure whereby there was a third sort of statutory instrument which could be amended, then I would be all for that in certain cases, although not in this case. Therefore, I do not think there is much point in making a great issue of this and it might just as well be left to the negative instrument as it is in the Bill.

Baroness Seear

Perhaps I may respond to the noble Lord, Lord Mottistone. It is true that when any resolution reaches this Chamber, there is very little that we can do about it. However, we are not legislating just for this Chamber. This will be the law which governs both Houses when it goes through. Therefore, if we believe that the affirmative resolution is valuable because of what can be done about it in the other place, it is perfectly proper for us to move to put it in the Bill as a whole.

Lord Mottistone

The only occasion—and it is rare—that it is useful in another place is when the government of the day have a tiny majority. If the government of the day have anything substantial—that is, any more than a majority of 20—then you may as well say that affirmative resolutions have no more power than negative ones.

Baroness Seear

One could say the same thing about the whole process of the Commons. With the present majority—and we will not go into the reasons why there is such a big majority—one could say that the whole legislative process does not make sense.

Earl Ferrers

The noble and learned Lord, Lord Elwyn-Jones, says that this amendment goes to the root of the matter. There is always the difficulty, when one comes to affirmative and negative resolutions, in deciding which is the more appropriate to use. In drafting Clause 8 we have provided an opportunity for both Houses of Parliament to debate any regulations which are made. We chose the negative resolution procedure.

Both the negative and the affirmative resolution procedures are perfectly normal and acceptable parliamentary procedures to allow Parliament to keep a control over the Executive. In this case it gives Parliament the right to say that it does not approve of what the Government are going to do. The normal procedure in these cases is to use the negative resolution procedure. It appears in other statutes which empower the Executive to make regulations prescribing fees. As an example, the British Nationality Act 1981 empowers the Home Secretary to prescribe fees in respect of the granting of citizenship, and that enables both Houses of Parliament to maintain a satisfactory overview of the way in which the Government use the relevant powers.

I believe that this is the proper course. It is a course which, if prayed against and succeeded against in either House, fails, and it gives Parliament its proper control over the Government.

Lord Elwyn-Jones

I am disappointed to hear that response. When we discussed the Legal Aid Bill the noble and learned Lord the Lord Chancellor conceded that on certain matters which were of importance—it is true (I do not want to mislead the Committee) that the emphasis was on matters of principle—it was appropriate that there should be affirmative resolutions. The Bill as it came in had only a very limited number of affirmative resolutions and it was conceded that where it concerned matters of public importance and involved a point of principle, it was appropriate that there should be the affirmative procedure.

At this hour I do not wish to put this matter to the test of a Division but I entreat the noble Earl, who I know is willing to apply an open mind to these problems, to consider the significance of this step in the procedure which has emerged in the course of our debate. At the very end of the day after the long procedures of applying for and obtaining indefinite leave, there is the potential final bulwark of the inability to pay what is as yet an unknown, unquantified fee.

However, in view of the hour and the circumstances perhaps the noble Earl is now willing to give an indication in the light of what I have said, and I shall give him the opportunity to do so. There have been concessions by the noble and learned Lord the Lord Chancellor. I do not pretend or claim that the circumstances are exactly similar, because that would be misleading the Committee. However, in the light of what has passed, he may well think that we are touching on very grave matters where the full procedure of requiring the positive approval of both Houses should be required.

Earl Ferrers

The noble and learned Lord invites me to comment and it would be churlish not to do so. I do not believe that there is a point of principle here as regards charging because that has been done before. That has been done under the British Nationality Act. I can see that the concern of the noble and learned Lord is that he wants to know what the fees will be. That information will be available to Parliament and to noble Lords, who will be able to discuss the matter and speak against it or even vote against it.

The difficulty I find in accepting the argument is that if we accept that this is going to be of such importance that it requires the affirmative resolution procedure, then it is difficult to know many occasions when the negative resolution procedure is adequate. The inference is that that is somehow inadequate and less good than the affirmative resolution procedure. However, it gives Parliament just as much right and control over the Government as does the affirmative resolution procedure.

Baroness Seear

If that is so, why do we have the two procedures if there is no difference between them?

Earl Ferrers

Basically it is in order to save time if noble Lords do not wish to pray against the proposal. If they wish to do so, they can.

Lord Elwyn-Jones

It is clear, I agree, the power in each case to require affirmative approval is a painful necessity for government and it is something which all governments try to avoid. Therefore, in order to proceed with the business of Parliament there has to be a certain selectivity. I readily agree with that. However, I urge—and I will not repeat the argument—that this is manifestly a case where we require the full procedure of affirmative resolution. There will be an opportunity to return to this matter again, and in view of the time and other factors I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Remaining clauses agreed to.

Schedule [Minor amendments]:

On Question. Whether the schedule shall be agreed to?

Lord Mottistone

I have given notice to my noble friend, and I thought I had given notice to the noble Lord who is in the Chair, that I proposed to oppose the Question that the schedule stand part of the Bill because it is inadequate. I was given amendments to put down to the schedule only last weekend, and I propose to introduce them on Report. However, I propose to give the Minister forewarning of that at this stage.

The schedule does not provide for allowing a carrier of an immigrant who has entered the country by deceit—that is, by forged passport or visa—to be freed from having to pay for the return of the immigrant to his country, which may be many miles away, even if the deceit is detected years after his arrival in the country.

It seems unfair, for example, that a cross-Channel ferry which may have a single fare of £8 should have to pay £800 to return an illegal immigrant to, say, Australia. That is the sort of difference that applies. It does not happen often but we are talking about a matter of principle more than one of money.

There is another example of where an immigrant outstays his leave to enter the United Kingdom, usually six months. He may enter the country by airline, outstay his welcome, go for a day trip across the Channel but is not allowed to land at the foreign port and is also refused entry on his return to the UK. Once again the carrier across the Channel who had nothing to do with his original passage has to pay his fare back home. That is unreasonable. It is part of the 1971 Act and it is time it was amended. The schedule should have amended it but for some extraordinary reason the Government did not include it. Indeed, the Government were positively insulting in the other place when this matter was raised. I hope to have a jolly good argument on Report.

Lord Mulley

I should like briefly to support the noble Lord, Lord Mottistone. As he rightly says, there are now opportunities to amend these injustices to the ferry operators and carriers generally. I think they accept that they are liable when bringing in illegal immigrants to pay the costs of sending them back to their own countries, but if the entry is effected by the persons convincing the immigration officer that they are genuinely permitted to come to the country, it is unreasonable if the immigration officer is deceived that the carrier should be considered to have better means of knowing the facts and, therefore, should not have brought them in the first instance.

The second point is that paragraph 9(1) of the schedule makes the position worse in the sense that the 1971 Act puts a liability on the carrier to the extent of two months after he is warned that he might be liable, and the schedule will extend that indefinitely once the authorities have given an indication that they intend to make a charge on the carrier. Knowing the difficulties that the ferries and carriers generally have to contend with as to cost, I believe that the Immigration (Carriers' Liability) Act of the last Session was a monstrous imposition on the short sea ferries and certainly I do not think it should apply to passengers originating from the EC. The fact is that it exists but I believe it is generally understood that it would not be appropriate to raise that matter now. However, in the interests of fairness and the smooth running of operations, I hope that the Government will reconsider the matter.

I accept that the noble Lord, Lord Mottistone, had intended to table amendments. It would have been better to have had the amendments before us in time to consider them at this stage of the Bill, but I welcome the fact that he will be tabling the amendments on Report and I look forward to supporting him on that occasion.

Earl Ferrers

I am not so sure that I welcome the fact that my noble friend will be tabling amendments on Report but he was kind enough to inform me, as did the noble Lord, Lord Mulley, that they are concerned about this matter. I accept that there is a difficulty when an immigrant is refused admission and has to be removed, but someone has to meet the expense and there is no particular reason why the taxpayer should be asked to do so. The carriers at least have had some involvement in that they brought the person here, so it is not unreasonable that the expenses should fall to them. That has been the position to date.

We recognise that it is difficult for carriers to plan adequately to the extent that the financial commitment imposed upon them is completely unknown. Therefore, we have undertaken to conduct regular reviews of long-running individual cases to make sure that carriers are not faced at short notice with a substantial bill.

I know that my noble friend has been in touch with the General Council of British Shipping about this matter because it is concerned about the position. The council has written to my honourable friend the Minister of State, Mr. Renton, asking to meet him. I think that he is minded to do so in order to discuss the matter and ascertain the council's areas of concern. It is only fair to say that the meeting will take place without prejudice as to the result, but I thought that my noble friend and the noble Lord, Lord Mulley, would like to know that we are concerned to see whether there is a way round the problem.

However, I am bound to say that the obstacles are formidable because in the end someone has to meet the bills. That is the difficulty. Therefore, I hope that my noble friend will consider the results of these thoughts before tabling amendments which might be awkward and premature. I am not saying they will be, but they might be.

Schedule agreed to.

House resumed: Bill reported without amendment.