Asylum and Immigration Appeals Bill

HL Deb 02 March 1993 vol 543 cc615-54

Consideration of amendments on Report resumed.

Clause 6 [Protection of claimants from deportation etc.]:

Lord Clinton-Davis moved Amendment No. 17: Page 5, line 27, leave out ("the Secretary of State gives him notice of the decision on the claim") and insert ("any outstanding rights of appeal under this Act or legal proceedings in the United Kingdom in relation to the decision have been exhausted").

The noble Lord said: My Lords, I do not know whether the noble Viscount, Lord Astor, is proposing to reply to the amendment.

Viscount Astor

My Lords, my noble friend Lord Ferrers will be with us in a moment.

Lord Clinton-Davis

My Lords, that puts me in something of a difficulty.

Viscount Astor

My Lords, if the noble Lord wishes to continue, my noble friend will be able to reply to the amendment.

Lord Clinton-Davis

My Lords, I am delighted to see that the noble Earl has just entered the Chamber. He is in good form, I am sure.

We seek through the amendment to give an assurance to an asylum seeker that he cannot be removed while an appeal against a refusal to grant asylum could be lodged, while leave to seek judicial review has been applied for or while any other appeal is pending. We are anxious that there should be no recurrence of the situation which arose when a previous Home Secretary was found to have been in contempt of court when an asylum seeker from Zaire was removed while a judicial review application was pending. It is a matter which is subject to appeal and I am not proposing to allude to that situation at all save for the reference I have just made to it. We think it is necessary to state clearly the position which normally obtains and to deal with a possible anomaly which is dangerous.

The situation is that the new clause as drafted confirms what has always been accepted as the position; namely, that while an application for asylum is pending the asylum seeker is able to remain in the United Kingdom. Paragraphs 6, 7 and 8 of Schedule 2 confirm that when an appeal has been lodged and is pending the asylum seeker will not be required to leave. Indeed it is usual practice that, when leave to appeal has been granted by the Divisional Court, the Court of Appeal or the House of Lords, no arrangements will be made for the asylum seeker's removal. But that situation has not been formalised, as I understand it. Nothing is laid down about the procedures to be followed where a person has a right of appeal but has not yet exercised that right by lodging the appeal. In the Bill, either 48 hours or 10 days for an initial appeal are the periods allotted.

It may not always be clear whether a person intends to appeal. People are entitled to receive advice and they can decide upon that advice up to the last moment, so to speak. During that period there is no statutory protection in relation to the asylum seeker's position. There would, in theory, be nothing to prevent the Home Office making removal arrangements during a period in which an appeal is capable of being lodged. It is accepted that that practice is very unlikely to be widespread. I am sure that that observation will come from the Minister, and I would certainly agree with that. But it has happened. It has happened in the case to which I alluded before and, apparently, in defiance of the court order.

If the amendment is passed it will mean that such an action would be illegal from the outset, and consequently the Home Office would be less likely to attempt to annul appeal rights in the way that happened in that case. The amendment states what is generally believed to have been the situation and I would hope that it is uncontentious.

In referring to a rather similar issue which was debated in Committee, the noble Earl said: If the noble Lord's amendment were agreed to, one would be obliged to retain for 10 days a person who did not want to appeal. That is an absurdity".—[Official Report, 11/2/93; col. 841.] But that person is entitled to exercise consideration of that situation right until the end of that period, short as it is. I speak also as a solicitor who dealt with a large number of immigration cases when I was in practice. I have to say that these cases are never easy. The shortened period for appeal will make life difficult not only for the asylum seeker but for those giving advice.

One further factor has not been mentioned in these debates. Most of these cases will presumably be on legal aid. An adviser has other cases to deal with. The solicitor may have to go down to see the asylum seeker in detention. That takes a great deal of time. I just wonder to what extent members of my profession who may be under a great deal of pressure will be able to undertake work which will only add to that pressure. When we talk about people who may not want to appeal, that is an assumption which I do not think the Minister is entitled to make. The period of appeal that has been given applies to the Minister as much as to anyone else, and he must respect that period.

In Committee the Minister went on to say: As a matter of practice, we would not normally remove a person who is seeking judicial review".—[Official Report, 11/2/93; col. 841.] What does "normally" mean? Does it mean that exceptional circumstances could prevail? What are those circumstances? For those reasons, because the situation has in a particular case already been found to be unsatisfactory, it is necessary to write the procedure into the Bill so that the asylum seeker can be sure that he will not be removed during the period in which he is entitled to lodge an appeal, regardless of whether he exercises that right within the time allocated—short though that is.

I hope that the Minister will be able to clarify the position. I hope he will say that there is nothing very contentious in the amendment—it is not intended to be contentious—and that he will be able to accept it. I beg to move.

Lord Hylton

My Lords, I support this amendment and in doing so draw attention to the fact that over the years, and at the present time, quite a substantial number of asylum seekers are detained, for example, at Haslar near Portsmouth and in the past in such prisons as Winchester and Gloucester at a considerable distance from London. It is in London that the bulk of the legal expertise on asylum and immigration cases is concentrated. That is where one finds most of the solicitors who are knowledgeable about these matters. If they have to visit their clients at a considerable distance from London, the situation becomes much more complicated and advice is less capable of being received by those who need it.

Earl Ferrers

My Lords, this is a similar amendment to one which was dealt with in Committee. I agree with the noble Lord, Lord Clinton-Davis, in that I do not believe that this matter is particularly contentious. As far as the amendment goes, it seeks to protect an unsuccessful asylum seeker against removal during the period his appeal is pending. We believe that that is unnecessary. The Bill already makes provision, in paragraphs 6, 7 and 8 of Schedule 2, to suspend any action to remove a person from the United Kingdom while his asylum appeal is pending.

The amendment would go further than that. It would prevent any steps being taken to remove a person during the period in which he could appeal even if he had no intention of doing so. In most cases under the Bill that would be a period of 10 working days (which is in effect two weeks) after the refusal of his application. If the amendment were accepted it would mean that a person who indicates immediately that he does not wish to appeal and is content to be removed would have to stay in this country for that period and would probably have to be kept unnecessarily in detention for that time, to his own disadvantage and at considerable public expense.

But the amendment goes further still. It speaks of any legal proceedings in relation to the decision. I expect that the noble Lord, Lord Clinton-Davis, probably has judicial review in mind. An application for judicial review normally has to be made within three months of the decision concerned. I cannot believe that the noble Lord really wants us to keep people in detention for up to three months just in case they might seek judicial review. The whole central purpose of the Bill is to enable asylum cases to be dealt with more quickly and effectively than before, but the Bill creates a specialised appeals system to ensure that every asylum applicant has the opportunity to have his case independently reviewed.

Even if the noble Lord intends to prevent a person's removal only where judicial review or other legal proceedings have begun—and the amendment goes further than that—I do not think that it would be right to put such a provision into the Bill. I said in Committee, and I repeat it again today, that it is our firm intention and policy not to seek to remove an asylum seeker who has been granted leave to move for judicial review and before that has been considered.

Lord Tordoff

My Lords, before the noble Earl sits down, would it not be possible to include in an amendment of this kind some provision which said: "Save in those cases where the asylum seeker indicates that he does not wish to appeal or go for judicial review"? That would deal with the objection which the noble Earl has just made.

Earl Ferrers

My Lords, the whole purpose behind this matter is that one should not keep in detention those who have no desire to appeal because that is a waste of time for everyone. I cannot see that there is any purpose in putting that into the statute because the intention of the Government is that anyone who wishes to appeal will be given the right to do so and will be able to stay on to achieve that. I do not believe that that should be written into the Bill.

8.45 p.m.

Lord Clinton-Davis

My Lords, I believe that the noble Lord, Lord Tordoff, makes a good point because that is the gravamen of the Minister's case; namely, that one may have a number of people who have no wish to exercise the right to appeal. Additional costs are to be borne by the state in maintaining them during a relatively short period, leaving aside the question of judicial review. If our amendment is defective by not taking that fact into account, then that matter can be cured. The Minister's response has been less than satisfactory.

The difficulty that the Minister might have alluded to was that there could be pressure brought to bear on somebody to indicate that they did not want to appeal. Therein lies a particular difficulty, although it is not an argument that the Minister could adduce because that would imply some potential wrongdoing on the part of the authorities. I am disappointed that the Minister has not been prepared to be a little more forthcoming in response to the specific point raised by the noble Lord, Lord Tordoff.

However, it is clear that the Minister is not prepared to respond favourably. I shall read again what he had to say. I reserve the right to come back to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Curtailment of leave to enter or remain]:

[Amendment No. 18 not moved.]

Lord Bonham-Carter moved Amendment No. 19: Page 5, line 41, leave out subsection (2).

The noble Lord said: My Lords, I argue that the Home Secretary already possesses the right to curtail a person's leave in the first place, to initiate deportation proceedings in the second place and in the third place to detain a person who is to be deported. But in all those cases, under the immigration Act that person has a right of appeal. What is new in the subsection which I am asking your Lordships to delete is that the right of appeal is removed from a person whose leave is curtailed. That is the one change that it makes. In my view that is an extremely serious change.

Let us consider, for example, the case of a student who comes here on a three-year course. The curtailment of the right of appeal at that stage could have disastrous consequences. Let us suppose that he is admitted for three years and that that is the length of the course which he has undertaken. At the end of one year there is a revolution in his country which totally changes his circumstances. He then feels bound to apply for asylum and his application is rejected. He is therefore obliged to leave the United Kingdom without completing his course.

That is a very serious matter for such a person. He would have no right of appeal under Clause 7(2). He would have to wait until the Home Office, in its good time, made a decision to deport him. He could then appeal against deportation. That is the situation which this clause puts into law. He can then appeal against deportation under Clause 8(3). But while waiting for that to happen he would be guilty of over-staying. What is the alternative course of action for that wretched student to take? To avoid the situation of being guilty of over-staying after one year he had applied for asylum and his application had been rejected. He would then have to wait until the deportation order was made.

Suppose he took another course. He waited to complete his course for three years without applying for asylum. If he did that, he would fall foul of the rules by failing to make a prompt and full disclosure; so he is caught and the noble Earl must recognise this. He is caught on what is called "the horns of a dilemma". If you were advising him, it would be extremely difficult to tell him which course to pursue. On the one hand, he would appeal for asylum and get sent home or get sent to a third country, but he would be unable to complete his course. On the other hand, he would complete his course but would then be sent home to a dangerous country. This is a kind of Swiftian situation—it might come from A Tale of a Tub or something—devised by our Government, by those wise men sitting on those Benches. It has been carefully devised to put a wretched student who has come to this country in a dilemma which, in terms of logic, I do not think can be resolved.

I have no doubt about what I expect the noble Earl to say. He will tell us that this will not happen to what is called a diligent student. Indeed, in another place the then Minister, Mr Peter Lloyd, said at col. 156 on 5th December 1991 during the Committee stage: Of course, my rt. hon. friend the Home Secretary is not obliged to curtail leave and there will be various cases in which he will not wish to do so, such as that of a bona fide student who has made an unsuccessful application". I should like to quote again from col. 157 on the same date: it is probable that no curtailment would be made".

Yes, it is probable that no curtailment would be made and I have no doubt that the noble Earl, who is a nice, honourable and kind-hearted man for whom we all have great affection, would not do anything so beastly. However, he might have a horrible unkind-hearted and unjust successor who would do exactly that. It is honestly no good that we here in your Lordships' House should depend on the words of a transient Minister. We want something more permanent than that to protect the wretched student I have described, who has been put in the most appalling dilemma by words put into this statute which we are asked to endorse and which I think we should not endorse. I therefore beg to move.

Lord Renton

My Lords, Clause 7 deals with people who have got limited leave to stay here for a short period in the first place. They then apply for asylum, and they do so either as an afterthought or else because it was their intention all along. The Secretary of State decides that the case is not a genuine case, and rejects it. Surely it is only right in those circumstances that the original leave should be curtailed, and it follows that there should be no right of appeal against that curtailment. This issue arose—

Lord Bonham-Carter

My Lords, would the noble Lord tell us why it follows that there is no right of appeal? He said that it followed that there should be no right of appeal, and I could not see the logical connection.

Lord Renton

My Lords, if the noble Lord had heard what I said when I started to deploy the case against the amendment he would have heard me say that the Home Secretary, when considering the application for asylum, decides that it was not a genuine case. It is manifest in the circumstances that it would not be a genuine case. It was either an afterthought or the fulfilment of an original intention that made the person apply for asylum. This issue arose in Committee in a somewhat different form, and my noble friend Lord Ferrers said at col. 849 on 11th February—I hope I am not stealing words that he may be proposing to use again, but they seem to me to be very apposite and, although I have not got my glasses with me tonight, I propose to try to read them—the following: The fact is that the great majority of those who claim asylum after entering the United Kingdom are people who have obtained leave to enter as visitors. It often becomes clear that seeking asylum was really their intention from the start and that they have no intention of leaving at the end of their purported visit". In those circumstances I should have thought it was a complete answer to the amendment moved by the noble Lord, and I hope that my noble friend will reject it.

Lord Tordoff

My Lords, the noble Lord is talking about a totally different case.

Lord Renton

No, my Lords.

Lord Tordoff

My Lords, it is a totally different case from the one that was suggested by my noble friend. The noble Lord is talking about someone seeking to use this provision fraudulently. He is talking about somebody who is in a very different situation. The noble Lord is saying that the Secretary of State is all-seeing, all-powerful and all-wise. However, we are saying that that is not necessarily always the case and it may be necessary to have a right of appeal in certain cases.

Baroness Seear

My Lords, the noble Lord, if I may say so, postulated two cases but he did not postulate the case that my noble friend Lord Bonham-Carter put forward, which was that the student came in as a student, then the situation in his home country changed. It had not been his original intention to stay but, as my noble friend suggested, something happened at home and he then needed asylum. At that point he applied. This is quite different from what the noble Lord, Lord Renton, said: he never considered that case.

Lord Renton

My Lords, we shall all be reminded in a moment, quite rightly, that this is not the Committee stage. But I would say that, as I understand it, the noble Lord, Lord Bonham-Carter, was moving Amendment No. 19. That amendment proposes that subsection (2) should be left out of Clause 7. Subsection 2 reads; No appeal may be brought under section 14 of the 1971 Act or section 8(2) below against the curtailment of leave under subsection (1) above". What I have said is totally relevant to that amendment.

Lord Clinton-Davis

My Lords, I think, with respect, that the case which has been advanced by the noble Lord, Lord Bonham-Carter, has not been answered by the noble Lord, Lord Renton. Let me start by postulating a proposition, with which I am sure he will disagree, in the friendliest possible way. I would assert that it is fundamentally wrong in principle and that it can lead to potential injustice to deny a right of appeal against an executive decision of this kind. The Government may say that is perfectly all right: leave it to the discretion of the Home Secretary. The Home Secretary is capable of being given faulty advice and acting on it. We know that that has been the case. But having regard to the fact that it is the Home Secretary who, in the words of the noble Lord, Lord Renton, would decide that something is or is not a genuine case does not remove, but rather emphasises, the need for the matter to be written specifically into the Bill.

We may be asked whether some of us do not trust the Home Office, and we would say that we do not. It is not that I do not trust the Minister, but there may be a different Minister being given different advice which is not benign. Unless protection is afforded by an Act of Parliament, no remedy will properly lie. That is a thoroughly unsatisfactory state of affairs.

Perhaps I could take the case postulated by the noble Lord a little further. This point was referred to by the Minister (Hansard col. 849). Let us assume that the facts are as the Minister set out. Let us suppose that a student here on a long course hears of sudden changes in his country which cause him to be frightened. He claims asylum. He may do something else. He may think, "I am not entirely sure that I have good grounds for claiming asylum, because something could go awfully wrong here. So I propose to hope that the problems back home will blow over. I shall carry on with my studies". They do not blow over. He then makes an application for asylum. What is the position then?

That situation is one that needs to be addressed by the Minister. It was not addressed on 11th November in Committee. I hope that it will be addressed now. That is something that could easily arise.

The noble Lord, Lord Bonham-Carter, said that the adviser may be put in a difficult position. As someone who has been an adviser in that position, and as chairman of the Refugee Council, I know many people who are in that position. The noble Lord, Lord Tordoff, is associated with me on that council. Advisers are not just put in an impossible position. A paid legal adviser might expose himself to an action for negligence which can be brought from elsewhere. It is not an easy problem to resolve. I hope that the Minister—once again, I am hoping against hope—will be more helpful on this issue than he was on the last. I support what was said by the noble Lord, Lord Bonham-Carter.

9 p.m.

Earl Ferrers

My Lords, the noble Lord, Lord Bonham-Carter, described a person who came here as a student, who found that there had been a coup in his country and who therefore wanted to seek asylum. The noble Lord said that that person would be on the horns of a dilemma. If he asked for asylum and that application was rejected, he would have to go home. If he did not ask for asylum he could stay and finish the course but he would have to go home at the end of it. As the noble Lord, Lord Bonham-Carter, said, that is a dilemma. He asked what the poor chap should do.

I hope that I can persuade your Lordships that there is a good regime in place. I am glad that my noble friend Lord Renton quoted the words that I used in Committee. I would not have had the temerity to use them again. It was kind of him to remind the House and myself of what I said.

The whole point of Clause 7 is to create a much quicker way of dealing with the person who is found, when his asylum claim is considered, no longer to qualify for the leave which he has previously obtained; for example, the visitor who plainly has no intention of leaving at the end of his visit or the student who has dropped out of his studies. We are seeking to create a workable system which will enable us to remove within a reasonable time people who have no further claim to remain here, while providing proper safeguards against the possibility of removing people wrongly.

My noble friend Lord Renton reminded us that I told your Lordships in Committee that many people come here as visitors and when here seek asylum. The idea of being a visitor is to obtain a foothold in the country and once here to seek asylum. The noble Lord, Lord Tordoff, said that the person described by the noble Lord, Lord Bonham-Carter, could not appeal. He can.

Under the new system which we are proposing, if it is decided to curtail an existing leave when an asylum claim is refused, the applicant will at the same time be served a notice of a decision to make a deportation order against him. He will be able to appeal against that decision and to argue the full merits of his case — both the refusal of asylum and the related decision to deport. So there will be one appeal which will deal with all the aspects of what is essentially one decision — a decision that the person should no longer be allowed to stay in this country.

The amendment seeks instead to preserve existing rights of appeal. Let there be no mistake about the effect of those existing rights. The power to curtail the leave of a person who no longer qualifies to stay here, which already exists under the 1971 Act and the current Immigration Rules, is rarely used because it is a protracted and cumbersome way of seeking to ensure a person's departure. Under the 1971 Act when a person's leave is curtailed there is a right of appeal under Section 14(1). He appeals to an adjudicator. If that appeal fails he may seek leave to appeal to the tribunal. If that fails the curtailment takes effect and the person has no further lawful basis upon which to stay in this country. He is obliged to leave. But if he refuses to go voluntarily, he must be served with a notice of a decision to make a deportation order against him. He then has a right of appeal to an adjudicator under Section 15 against that decision. If he is turned down by the adjudicator, he may apply for leave to appeal to the tribunal. It is therefore quite possible for a person to spin out his stay for several years pursuing those successive rights of appeal. That is a slow and inefficient system.

Whether one likes it or not, that is the system that the amendment seeks to preserve. I do not believe that that is right. We are trying to simplify the system and to give plenty of opportunity for appeal. The right of appeal exists, but the system is being modified to prevent the abuses which happen at present.

Lord Clinton-Davis

My Lords, before the Minister sits down, will he be kind enough to deal with the example which I cited? It was a situation comparable with that to which he alluded in an earlier debate. The person concerned may be on the horns of a dilemma and hope that the situation in the home country will blow over. As a result he may not apply for asylum although the circumstances for doing so would be relevant at that earliest moment. The application for asylum would not therefore be timely but would perhaps be made later. Does the fact that the person has failed to exercise the right of application in a timely way at the beginning count against him or will it be considered that, because the situation in the home country still prevails and the civil war, or whatever, continues, it remains appropriate and timely for that person to make an application for asylum?

Earl Ferrers

My Lords, it is difficult to give a pontifical answer to any individual case. I accept that a person may come here genuinely as a student only later to find that there is turmoil in his country. He may then wish to apply for asylum. Whether an application for asylum is made immediately or later on, it must be determined whether that application is genuine. If the conditions in his home country were so intolerable that on return he would be subjected to the privations of his country as they then existed, the chances are that he would be granted asylum. However, it is impossible to answer a hypothetical question. The provision is being introduced in order to prevent an abuse of the procedure. It is being introduced in order to allow a person to ask for asylum and, if his application is rejected, he will have a right of appeal. I do not believe that one can go much further than that.

Lord Bonham-Carter

My Lords, in answering the noble Lord, Lord Clinton-Davis, the Minister revealed what I regard to be the central weakness of the Bill. He said that in the circumstances pointed out to him by the noble Lord the chances are that the person would be given the right of asylum. He pointed out that in a hypothetical case of that kind it is difficult to predict the outcome. The point he made was that such situations are extremely difficult and demand careful judgment. One is dealing with human situations which have extremely serious consequences for the individual in question. Therefore, they are not to be taken lightly and ought not to be taken down the line.

Perhaps the process introduced by my old friend Sir Roy Wilson—he introduced the immigration rules some 20 or 30 years ago—is laborious. They have stood the test of time and have ensured that elements of justice were done. It is now proposed to abandon them and I must confess that that is not a decision to be taken lightly. I am surprised that a lawyer such as the noble Lord, Lord Renton, should find that a process of appeal can be dropped and dropped with some enthusiasm.

The point is that, in order to achieve what the noble Earl, Lord Ferrers, described as a quicker way of dealing with the person who has come here under false pretences, we are jeopardising justice to others. That is what we are doing —we are jeopardising justice to other people in favour of administrative speed. That is something which no government should do and no government should be allowed to do. It is shocking that the provision should be passed without dissent. I do not believe that this is the time to test the matter but perhaps we should call in question what is a serious issue of principle. The present procedure has worked since the immigration rules were devised by Sir Roy Wilson and now the Government are proposing to drop it. I see that my colleagues consider that we should put the matter to the House—

Earl Ferrers

My Lords, perhaps with the leave of the House I may interrupt the noble Lord. He said that we are dispensing with the appeal rights. That is not so. The right to appeal will exist. If it is decided to curtail an existing leave when an asylum claim is refused, the applicant will be served at the same time with a notice of a decision to make a deportation order against him. He can appeal against that deportation order. When the deportation appeal is considered, all the circumstances will be taken into account. Therefore, a right to appeal exists. We are merely abolishing an appeal system which enables a person to spin out one appeal after another. However, the principle of the appeal remains.

Lord Bonham-Carter

My Lords, the point that I wish to draw attention to is the idea that the notice of deportation is simultaneous with the rejection of the claim for asylum. That was simply stated in another place by the then Minister on 5th December 1991. As far as I know, that is not in the rules and is not on the face of the Bill. Why should we believe that that will happen? It might be another matter if the noble Earl were prepared to say that that should be written on the face of the Bill or if he will even say that he will consider it. However, he merely tells me that his right honourable friend Mr. Peter Lloyd said: it is probable that no curtailment would be made. However, if the Home Secretary decided to curtail an applicant's stay, the applicant would be notified of the curtailment and the rejection of the asylum claim at the same time". That is merely a statement in the House.

This conversation took place previously when the noble Lord, Lord Mishcon, was present and he agreed with me that we should not continue to accept statements made on the Floor of the House as though they have statutory significance.

Earl Ferrers

My Lords, I hesitate to speak again. Perhaps the noble Lord, Lord Bonham-Carter, would be good enough to look at Clause 8(3), where he will see that: the person may appeal to a special adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations". Therefore, there is an appeal provided for in Clause 8(3).

Lord Bonham-Carter

But, my Lords, Clause 8(3) refers to deportation and not to any earlier decision to refuse the right to asylum. He cannot appeal against that rejection. I am saying that he should be able to appeal against that for the very reasons which the noble Earl gave. That is a very difficult and delicate decision to take and is a matter of grave human importance. There should be some second-guessing about the nature of the decision which the Home Secretary has taken. We know that the Home Secretary must take such a decision on the advice of someone who is relatively junior. Therefore, I wish to test the opinion of the House.

9.17 p.m.

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 27; Not-Contents, 68.

Division No. 3
CONTENTS
Ackner, L.	McNair, L.
Bonham-Carter, L.	Molloy, L.
Boston of Faversham, L.	Morris of Castle Morris, L
Brightman, L.	Palmer, L.
Clinton-Davis, L.	Parry, L.
Cocks of Hartcliffe, L.	Peston, L.
David, B.	Richard, L.
Faithfull, B.	Rochester, L.
Graham of Edmonton, L.	Russell, E.
Harris of Greenwich, L.	Seear, B.
Hollis of Heigham, B. [Teller.]	Sefton of Garston, L.
Judd, L.	Taylor of Blackburn, L.
Kagan, L.	Tordoff, L. [Teller.]
McIntosh of Haringey, L.
NOT-CONTENTS
Annaly, L.	Bridgeman, V.
Arran, E.	Brougham and Vaux, L.
Astor, V.	Caithness, E.
Belstead, L.	Carnegy of Lour, B.
Blatch, B.	Coleraine, L.
Blyth, L.	Cranborne, V.
Boardman, L.	Cumberlege, B.
Boyd-Carpenter, L.	Denton of Wakefield, B.
Braine of Wheatley, L.	Ferrers, E.

Finsberg, L.	Oxfuird, V.
Fraser of Carmyllie, L.	Pearson of Rannoch, L.
Gisborough, L.	Perry of Southwark, B.
Goold, L.	Quinton, L.
Goschen, V.	Renton, L.
Hacking, L.	Rodger of Earlsferry, L.
Harlech, L.	St. Davids, V.
Harvington, L.	St. John of Bletso, L.
Haslam, L.	Saltoun of Abemethy, Ly.
Hayhoe, L.	Seccombe, B.
Henley, L.	Selborne, E.
Hesketh, L. [Teller.]	Skelmersdale, L.
Howe, E.	Stewartby, L.
Jeffreys, L.	Strathclyde, L.
Long, V.	Strathmore and Kinghorne, E [Teller.]
Lucas of Chilworth, L.
Lyell, L.	Tebbit, L.
Mackay of Ardbrecknish, L.	Teviot, L.
Mackay of Clashfern, L.	Thomas of Gwydir, L.
Macleod of Borve, B.	Trumpington, B.
Manchester, D.	Ullswater, V.
Marlesford, L.	Vinson, L.
Monk Bretton, L.	Wakeham, L.
Moyne, L.	Whitelaw, V.
Murton of Lindisfarne, L.	Wise, L.
Norrie, L.

Resolved in the negative, and amendment disagreed to accordingly.

9.25 p.m.

Lord Clinton-Davis moved Amendment No. 20: Page 6, line 8, after ("order") insert ("if there are reasonable grounds to believe that the person will not report to an immigration officer at an appointed time").

The noble Lord said: My Lords, an amendment in the same terms as Amendment No. 20 was moved at Committee stage by my noble friend Lady Mallalieu. The basis of our case is that Clause 7(4) is otiose.

Schedule 3 to the 1971 Act enables the Secretary of State to detain a person against whom a decision to deport has been made. The question immediately arises as to why that needs to be repeated in this Bill. The amendment would provide for bail to be granted, as normal, in the case of an asylum seeker who was appealing against his deportation unless—and the proviso is important—reasonable grounds for detention could be established by the immigration officer. I do not see why the situation should be different in this instance from that which prevails in the criminal law. The normal practice in criminal courts under the Bail Act 1976 is that a person who opposes bail should justify that opposition. The onus of proof lies on that person. In this instance it would be the immigration officer. In the event of an appeal, the immigration officer would have to justify the position that he had adopted earlier.

Why should not detainees be apprised of the reason for their detention? Why should they not be made aware that they can apply for bail? Everybody concedes—and the Minister conceded in the speeches which he made earlier—that detention is a serious matter. I suggest that it is even more so when it affects people who are especially vulnerable and who have probably suffered appallingly in the country from which they have escaped. They have probably suffered detention and torture. They come to a country with a long history of democracy which they believe is a safe country and then somehow or other they find themselves in detention once again. In my view that is not an acceptable situation.

The amendment merely provides that bail facilities will be given unless there are reasonable grounds for supposing that the asylum seeker will not report to the immigration officer at the appointed time. That is a very similar provision to that which applies in criminal cases when applications for bail are made.

Two arguments have been adduced against that proposal, neither of them substantial. The first is the presumption which runs right through the philosophy of the Bill, namely that an asylum seeker is seeking to abuse the system. I do not believe that that is a proper assumption to make when we are dealing with civil liberties and civil rights.

The second argument which the Minister adduced is referred to in col. 857 of Hansard for 11th February. On that occasion the Minister said: The power to detain will only be exercised if we do not think that the person will keep in touch and that a failure to detain will frustrate the intention to enforce departure". Therefore, he argued that detention has to remain an option. That is precisely the purpose of the amendment, but we seek to inscribe into the Bill something which the Minister asks us to take for granted. Because of the importance of the matter we believe that it is essential that it should be spelt out in the Bill. Unfortunately, doubts remain because of the way in which the clause has been drafted. I beg to move.

9.30 p.m.

Lord Bonham-Carter

My Lords, the amendment introduces the issue of bail into the legislation. That is important, given the people with whom we are dealing. I wish to make a narrow point. In many cases people who seek asylum have suffered persecution and detention and to them detention therefore has overtones of horror. They may be rare or exaggerated but are nonetheless there. For those people it is a serious matter. I see my noble kinsman Lord Hylton is in the House. He is closely associated with the Medical Foundation for the Care of Victims of Torture. If one reads the annual report of the medical foundation, which deals with victims of torture, one sees how serious is the impact of detention on those people and the prospect of repeated detention in a country to which they come for safety and to escape from the horrors of the past. Bail will not be easy for those people to acquire since they probably will not know many people in this country. However, to introduce the idea of bail would be a great and humane advance.

Lord Renton

My Lords, one must agree with the noble Lord that for some people, even those who are about to be deported, detention is a serious matter. I refer to honourable people who never intended to get themselves into the position in which they find themselves under Clause 7. But of course they do not have to be detained. That is the discretionary power given to the Home Secretary. The Bill provides that the person, may be detained under the authority of the Secretary of State". That is a different situation. It is right, as the Government propose, that there should be some flexibility. However, I should have thought that in the vast majority of cases the only safe thing to do would be to detain the person pending a deportation order.

We went over precisely this part of the course at Committee stage. I do not wish to repeat fully the arguments that I then put forward or those of my noble friend Lord Ferrers. However, we know that in this country there are always a great many people who, simply, are able to get lost, either having come here illegally or, having been ordered to go, decide that they will evade the order. Therefore I believe that the Government are right in formulating the subsection in the way that they have done.

However, if the amendment is added to the provision, it creates an extraordinary situation. The amendment provides, if there are reasonable grounds to believe that the person will not report to an immigration officer at an appointed time". It turns the Secretary of State or his officials or both of them into thought readers, reading the thoughts of the person who is about to be given a deportation order. They have to read the thought as to whether or not he will report to the immigration officer within the appointed time. The intention of such a person may change from day to day and to expect the Home Secretary and his advisers to anticipate exactly what is going through the mind of such a person is asking the impossible.

Lord Clinton-Davis

My Lords, the noble Lord has been an experienced legal practitioner at the Bar. I assume that he had many criminal cases. He will therefore know that one of the grounds frequently put forward to the court by the police officer or the prosecuting counsel resisting bail is: "I have reason to suppose that the defendant will not appear before the court". Sometimes that goes wrong. Is the magistrate or judge said to be a thought reader? He is exercising a diligent and reasonable view of the situation. Why should a person who is an asylum seeker be treated in a more adverse way than someone who is appearing before a criminal court?

Lord Renton

My Lords, the noble Lord has made an astute point and a fair one, but the circumstances of magistrates granting bail to people resident in the United Kingdom are quite different from the circumstances of those who are not citizens of the United Kingdom and who are about to be deported. Let us face it, it is not the same situation as that which the courts have to consider when granting or refusing bail.

Lord Hylton

My Lords, I fear that I was not able to be present in your Lordships' House when this point was discussed at the Committee stage. However, this evening I thought that the noble Lords, Lord Clinton-Davis and Lord Bonham-Carter, made an extremely strong case for the amendment. I can only recount my own experience, going back quite a number of years and certainly more than three. I had been frequently assured by Home Office Ministers, including Home Secretaries and the present Minister with responsibility for immigration, that detention is only used sparingly and in the absolute minimum of cases. One has to accept what they say.

I should have thought that it was extremely important that those who wish to detain someone should be made to state their reasons and to justify them. As to the proposition that that makes them become thought readers, I imagine that frequently there are factual circumstances in the record of the individual and his past behaviour which indicate how he is likely to behave from now on. People have a track record. If they are reliable, they will probably continue to be reliable. If they prove themselves to be unreliable, all right, let them be detained. But it is most important that reasons should be put forward for the detention.

Earl Ferrers

My Lords, the noble Lord, Lord Hylton, said that the noble Lords, Lord Clinton-Davis and Lord Bonham-Carter, made an extremely strong case. I rather agreed with my noble friend Lord Renton that it would be unreasonable to expect the Home Secretary to anticipate what is going on in the mind of a detainee. The amendment would provide that a person could only be detained if there were reasonable grounds for believing that he would not comply with the requirement to report to an immigration officer. That is essentially what happens already. It is our practice when considering detention in all immigration cases. The specific power to detain in Clause 7 of the Bill will only be exercised if we do not believe that the person would in fact keep in touch with the immigration authorities, and that unless he were detained, it would be impossible to enforce his departure. That is what happens.

I can assure noble Lords that there is no intention whatever to exercise the powers of detention when there is a practical alternative. Apart from the obvious effect on the detainee, detention is costly. The Home Office has no wish to tie up limited detention accommodation unnecessarily.

However, detention must remain an option for those relatively few cases where we have reason to believe that a person will not co-operate or comply with the other restrictions which might be placed upon him. But I cannot see that it would be right to adopt this amendment when there are no similar qualifications to the general powers of detention in deportation cases contained in the 1971 Act. That Act has worked perfectly well and it would be inconsistent to introduce such a restriction only in relation to the specific power in Clause 7.

Lord Clinton-Davis

My Lords, with respect that is not a satisfactory response. The Minister says that there is nothing between us because detention must remain an option. I agree. But we on this side of the House and those on the Liberal-Democrat Benches say that because this is such a sensitive issue it ought to be inscribed in the Bill and not left to the say-so of the thought-reader. It is a very strange view of adjudicating on bail to think that somehow one becomes a thought-reader. What one becomes is an investigator. Just like a police officer who is in charge of a case, one makes sure when investigating a question of reasonable grounds that the person resides at a specified address. One finds out who else resides with him. One considers whether it is appropriate to report daily, less frequently or more frequently at a local police station. Sureties might be provided. That is how bail operates in the criminal courts. I find deeply offensive the argument about thought-reading, which is the most unmeritorious argument that I have ever heard adduced by the noble Lord, Lord Renton, in all my pleasurable experience of crossing swords with him in another place and in this Chamber.

The fact is that in a sense anybody who adjudicates on matters of bail has to make a judgment. Judgments are made all the time. They are not made capriciously but on the basis of evidence. That ought to apply here. I cannot see why these unfortunate people—many of them are unfortunate; I do not suggest that detention is practised widely, but it is practised—should be placed in an inferior position to that of someone appearing before a criminal court. There is no reason for it. It simply does not make any sense at all.

I am very unhappy about the situation. It would be foolish to divide the House on the matter now, bearing in mind that there are so few noble Lords in the Charpber. I listened to what the Minister said. I am not convinced and reserve the right to return to the issue at a later stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Appeals to special adjudicator]:

[Amendments Nos. 21 and 22 not moved.]

9.45 p.m.

Lord Clinton-Davis moved Amendment No. 23: Page 6, line 16, at end insert ("or on the ground that if removed from the United Kingdom he would be required to go to a country where he has a well-founded fear of persecution on the grounds of race, religion, nationality, political opinions or membership of a particular social group.").

The noble Lord said: My Lords, in moving Amendment No. 23, standing in the names of my noble friend Lord McIntosh and the noble Lord, Lord Bonham-Carter, for the convenience of the House I shall speak also to Amendments Nos. 27, 28A and 29. The amendments were argued by my noble friend Lord McIntosh at Committee stage, starting at col. 859.

Clause 8(1) to (4) deals with the obligations of this country under the Geneva Convention. The amendments are designed to widen the grounds upon which an appeal may be brought. That is made necessary because Article 33 of the convention only prevents states from sending refugees to any country where their life or freedom will be threatened. No specific provision is made in the convention which prohibits the return of persons to countries where they would be at risk from a form of persecution not involving a threat to life or liberty.

The restrictive nature of the proposed right of appeal is reinforced by the provisions of the draft asylum laws, which have the effect of restricting the grounds of asylum to those who are able to establish a threat to their life or freedom. That contrasts with the current rules of asylum whereby people are entitled to asylum on proving that they have a well-founded fear of persecution. There is no need to prove a threat to life or liberty.

Article 33 in the proposed asylum rules is therefore significantly more restrictive. Unless the amendments are accepted, we believe that people who have a well-founded fear of persecution cannot hope to succeed in an appeal. Consequently, we believe that it is a matter which should not be regarded as unduly contentious. I beg to move.

Lord Tordoff

My Lords, I support Amendment No. 23, moved so ably by the noble Lord, Lord Clinton-Davis. In recent times we have moved into new horrors in relation to asylum seekers. The situation in Yugoslavia has pointed to the problems that people can face. The systematic rape of women in Bosnia is a case in point. Clearly, as one reads the Bill, somebody who felt that they were likely to be subjected to systematic rape on being returned to their country, would not be covered by the provisions of the convention in relation to threats to their life. Similarly, people being forced back into torture, provided it did not mean that they were being detained for a long time, would not be covered.

People who feared that they might go back to their country of origin and not face a threat to their life but face a threat to their property—in other words, that their property may be burnt down if they went back —would not be covered by the convention as we understand it. That is why we sought to extend the provisions of Clause 1 of the Bill at a much earlier stage. That is the reason we support the provision to extend the measures in the clause.

Lord Renton

My Lords, the noble Lord, Lord Clinton-Davis, proposed something that I am sure he has never proposed before in his long and distinguished parliamentary life and I doubt whether he will ever propose it again; namely, that the same four lines should be repeated four times in the same clause of the Bill, admittedly in different subsections of it. It would lead to a strange result in the drafting of the Bill and I hope that on reflection he will not try to press the amendment. Perhaps I may set at rest not only his mind but also the minds of other noble Lords. The sentiments, principles and the high-minded ideas of these four amendments are to be found in the convention that the Government have agreed must be followed in any event and which is written into the Bill. I suggest that the amendment is not only unnecessary but, with the other three amendments that go with it, is unthinkable as a piece of legislative drafting.

Lord Bonham-Carter

My Lords, I hesitate to argue with the noble Lord, Lord Renton, on a matter of law. However, in so far as he interprets the convention, his view is contrary to the legal interpretation that we have received. We have been assured that it does not cover civil war, systematic rape or the circumstances mentioned by my noble friend Lord Tordoff. This is a matter on which I should like a ruling. Unfortunately, the noble and learned Law Lords have disappeared and therefore we will not receive their advice.

Presumably, the Government have had advice. It would be a different matter if we had an assurance that the convention covered those eventualities. The point made by my noble friend that the motives for asylum had changed since 1951 was an important one. As we discussed on Second Reading, the 1951 convention was devised in a cold war situation and was cold war ideology. It was about people opposing the ideology of the governments that dominated them. We are now concerned with different forms of persecution that require wider definition. I should like to know on the best possible advice whether the kinds of persecution raised by my noble friend are covered by the convention. The advice we have received is that they are not. That is something that needs to be covered.

Finally, the noble Lord, Lord Renton, objected to the drafting of our amendment. We are always ready to receive expert advice on better drafting.

Lord Hylton

My Lords, I will not comment on the elegance or otherwise of the drafting. I should like to ask the Government the following question. Had the substance of this amendment been incorporated in existing legislation, would it have been possible for those Sri Lankans to be deported to Sri Lanka and suffer torture and persecution there as a result, and for those Kurds to be deported to Turkey and subsequently come back to this country and receive considerable sums in compensation from the Government?

Earl Ferrers

My Lords, this is another point that we discussed at some length during Committee stage. The amendments would entitle a person to appeal not only on the grounds that his removal would be contrary to our obligations under the 1951 convention but, alternatively, that he had a well-founded fear of persecution. I am bound to tell your Lordships that I believe it is superfluous to provide this alternative ground of appeal. The noble Lord, Lord Bonham-Carter, said that he wanted to know whether the cases referred to by the noble Lord, Lord Tordoff—systematic rape—would be covered. I cannot give noble Lords an answer to what may be described as a hypothetical case. The noble Lords opposite shake their heads, but the fact is that it is a hypothetical case if one wants to generalise. Each case has to be considered on its merits. It is perfectly possible that that kind of case would be considered to be persecution but it would be inappropriate for me at the Dispatch Box to answer the general question of whether systematic rape would be covered under the Bill. It is a matter which would have to be discussed in each particular case. It is perfectly possible that on some occasions that would be so covered. I had hoped that I would have satisfied the noble Lord, Lord Tordoff, who sits there with a frown on his face looking most dissatisfied. I cannot do anything more than that. It would be quite inappropriate for me to pontificate on a subject like that in a generality.

In considering claims for asylum there are two key issues which have to be decided. First, does the applicant have a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion? Does he have a well-founded fear of persecution? If the answer to that question is yes, he is a refugee as is defined in Article 1 of the 1951 convention. If he is a refugee, then the second question is whether, if he were required to leave this country, he would have to go to a country where his life or freedom would be threatened on account of one of those factors. If the answer to that question is also yes, then his removal would be contrary to the United Kingdom's obligations under Article 33 of the convention. Those are the issues to which those who are responsible for determining asylum claims and the authorities which are responsible for deciding asylum appeals must address their minds. Those are the issues which are covered by the grounds of appeal set out in Clause 8.

The amendments would simply confuse matters by introducing an alternative ground of appeal, based on wording which muddles the language of Article 1 and Article 33. They would not in fact add any measure of protection for people whose removal would be contrary to our obligations under the convention.

Lord Clinton-Davis

My Lords, that is precisely the point. We say that the convention is not wide enough. The cases mentioned by the noble Lord, Lord Tordoff, are actually happening. They are not hypothetical cases. They are actually happening. If one is dealing in Parliament with a Bill concerning crime is it said that one cannot deal with cases which have actually happened because one would have to look into every aspect of them? One needs some guidance from the Minister, which, with great respect, we are not getting, as to the general way in which the Government will go about their business in dealing with and investigating such cases.

We have here a situation which is clearly spelt out. Unless there are some grounds for supposing that the information given is bogus or anything of that kind, which would be within the purview of the immigration officer to examine, one makes an assumption that the person has suffered terribly. But it does not come within the convention. That is precisely the point we are making.

The noble Lord, Lord Renton, assailed me for the drafting of the amendment. I could make the point that my name does not appear on the amendment, but I do not make that point because I am adopting the argument. When we are dealing with an issue of principle we ought to look at the issue rather than at the specific drafting and technical points. If the Minister were moved—he is not—to say that he is interested in the principle underlying the matter he could offer to come back with better amendments. The noble Lord is very familiar with that argument and no doubt, in his ministerial career, was perhaps a little more generous than the Minister is being today. Therefore, I shall not take that point very seriously. The noble Lord is right in those narrow terms but it does not go to the heart of what we are talking about.

The noble Earl said that the amendment is superfluous. If it is superfluous, he has no reason to fear it, and he should be embracing it. We say that it is not superfluous. We say, as the noble Lord, Lord Bonham-Carter, said—I apologise for earlier confusing him with the other "B-C"—that legal advice has been taken on this matter and that that advice is not idle. It is to be taken seriously. The Minister has not in fact sought to assert that it is advice that is fundamentally wrong. He says that the amendment is superfluous. Again, were it otherwise I would divide the House on this matter, but for the reasons which I gave before—

Lord Tordoff

My Lords, I am grateful to the noble Lord for giving way and with the leave of the House, may I ask whether he does not find it curious that the Minister, in referring to mass rape, says that it might very well be that people could sustain an appeal on those grounds. But "might" includes "might not". Does he not find it strange that somebody might be sent back in those circumstances?

Lord Clinton-Davis

My Lords, it is strange that the Minister is somewhat ambivalent. It is not right that he should be so. I believe that the Minister is under instructions not to make concessions. I have the feeling that he has strongly imprinted on his brief the words "resist" or "resist at all costs". It is a pity. Again I reserve the right to come back to this issue at a later stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 to 27 not moved.]

10 p.m.

Lord Clinton-Davis moved Amendment No. 28: Page 6, line 22 at end insert: ("() No appeal to a special adjudicator may be heard within ten working days of the date upon which notice of appeal is given to the Secretary of State other than with the consent of the appellant.").

The noble Lord said: My Lords, in moving this amendment, I hope that the Minister has no objection if we consider with it Amendments Nos. 30, 31, and 33. The amendments are designed to provide for adequate time in order to deal with appeals in a proper way. That includes being able to prepare a case for appeal; to explain why and to obtain evidence to support the claim that it is not groundless. That is why we have inserted 14 working days and 10 working days, which is tantamount to the same thing.

It is right that people should have sufficient time to make appeals against refusal. That implies that they should have sufficient time to prepare and to have their cases conducted properly. I do not believe, when one considers the so-called groundless cases, that 48 hours to lodge an appeal and five days for an appeal hearing is anything like sufficient. Even if the case is supposedly groundless, it is the duty of the person advising the appellant to look into the matter, most specifically where there are difficulties in terms of communication, of language or of understanding.

I have already laboured the argument about the problems facing those who give advice and I do not need to go into that again. It is almost impossible to do that properly and even more so if the person in question is subject to detention. Those are real, practical problems which I suggest the Minister has never experienced personally. I wonder how he would feel if he were a legal adviser in such circumstances, beset by all kinds of other cases and problems and not finding this kind of case particularly rewarding. Most such work is done almost on a pro bono basis.

So if the case is going to be contested properly, supporting evidence has to be procured and statements have to be taken. This could entail long interviews and detailed research about conditions in the country of origin—because they would be important and the legal adviser would have to be aware of them. Maybe it would involve the necessity to trace and interview witnesses and to look into documents. Then there is the whole question of what is happening in the third country to which it is proposed to remove the person. There is a duty to investigate that too in order to discover the practices of that country.

My experience has been that people who are involved in this area of work undertake these cases with extraordinary diligence, but they do need time. I believe it is quite impossible within the five days prescribed to undertake that task properly. If that is the case, it is not inconceivable that miscarriages of justice could occur. Of course it might possibly lead to applications for judicial review of such cases—cases without foundation—after this kind of very truncated procedure. I believe that on those grounds, and on the grounds of natural justice and of efficiency—preventing the courts being clogged up, which the Home Secretary himself wishes to avoid—we need to have a longer period inscribed in the Bill.

Even the full appeals process is very short, allowing only six weeks for a full hearing. Of course in the abbreviated situation it is infinitely worse. The Bill provides time limits for appeals processes but no time limits for the Home Office to deal with the original application for asylum. Indeed, the longest delays are the responsibility of the Home Office, and of course the Bill does not deal with that. The Minister says, "Of course we are bringing more people in"—but still delays persist.

The Home Office suggested, when the Bill was published in October 1992, that a target date for dealing with applications would be three months. The Government then went on to accept that many applications might take considerably longer. So we have one situation for the Home Office and quite another for the person seeking the right to appeal. I believe that that is a palpable injustice. I would hope, although I fear that my hope will be in vain, that the Minister will see that there is an important element of natural justice which has to be met here and which is frankly not being met and will not be met if the Bill as drafted goes into law. I beg to move.

Lord Renton

My Lords, I have a lot of sympathy with the intention behind Amendment No. 28 and I hope that my noble friend will consider it sympathetically. However, I do not think it is right to have it in a clause in the Bill. We have a schedule dealing with procedural matters and it is more appropriate that details of that kind, even if they do raise matters which are to some extent matters of principle, should go into schedules rather than forming part of clauses. The second schedule, after all, is at present just an enabling schedule for the making of rules of procedure. Those rules will have to be made.

I also have some sympathy with the use of the word "shall" instead of "may" in Amendment No. 30. As to Amendment No. 31, I must say that without having considered this matter in very great detail I do not feel inclined to offer an opinion on it. I shall be interested to hear what my noble friend the Minister has to say. On this occasion I was rather persuaded by the view put forward by the noble Lord, Lord Clinton-Davis.

Lord Hylton

My Lords, I am encouraged by what the noble Lord, Lord Renton, has just said. Even at this relatively late stage of the Bill, and late hour of the night, it is necessary to appeal to the Government to have second thoughts about time limits. No one can deny that since the Bill was published all those persons with experience of dealing with immigration and asylum have said unanimously that the time limits are too short and should be lengthened.

Earl Russell

My Lords, the noble Lord, Lord Clinton-Davis, made an important point when he referred to the possibility of the legal adviser having other business on hand. Legal advisers often do. Recently, I had occasion to call in a legal adviser for someone else in a criminal case. The legal adviser said that the hearing was scheduled for five working days from that time; that it was far from the only urgent business that he had on hand; and that he could not possibly have his defence ready in that time. That argument was acceptable to the prosecution. It was a reasonable reply.

It is not to be supposed that those who are advising people under the Bill will be any less busy. They too will have urgent cases in hand. So we must consider what they will do. They have an inflexible time limit under the Bill and rather more flexible time limits in the ordinary courts. What they will do is to ask for postponements of a great many other cases in the ordinary domestic courts.

I happened to be in the House on 10th February during a debate initiated by the noble Lord, Lord Irvine of Lairg, on the legal aid regulations. I listened to the noble and learned Lord, Lord Taylor of Gosforth, talking about the immense expense caused to courts by the alteration to listings through the postponement of cases. By forcing legal advisers to have all their other cases postponed, the Bill will cause a great deal more dislocation to court lists than we already have. So will not the effect of the Bill be to cause an unnecessary waste of public funds?

Lord Finsberg

My Lords, I too was interested to hear the argument put forward by the noble Lord, Lord Clinton-Davis. It touched a chord in my mind of the many cases with which I had to deal on a constituency basis when I was in another place. It was often difficult to find the right legal adviser who could act as quickly as one might want. 1 am puzzled—I do not believe that I missed it—but there seems to be a difference in the timing between Amendments Nos. 28 and 31. One talks about 10 working days and the other about 14 working days. I should have thought that the figure of 10 was the more suitable because it affords what I would call two normal working weeks. I do not think that I heard any explanation as to why there should be that difference between what are essentially two similar matters; that is, the obtaining of proper advice to present a proper case.

10.15 p.m.

Earl Ferrers

My Lords, the noble Lord, Lord Clinton-Davis, wounded me to the quick on the previous amendment by saying that I had "Resist" written all over my brief. I should be only too happy to accept some of the noble Lord's amendments if they were worthy of acceptance. My difficulty is to try to persuade your Lordships that the amendments which some noble Lords have put down, motivated by the best of intentions, do not achieve what they want or alternatively do not improve the Bill.

I was worried when my noble friend Lord Renton said that he was persuaded by the amendment. I must ask him to act in the mode of a metronome and swing back a little from being persuaded by the noble Lord, Lord Clinton-Davis. The amendment would provide that without the appellant's consent no appeal could be heard within 10 days of the lodging of an appeal notice.

I would remind the House that accelerated procedures—where the case has to be heard within five days—will apply only to cases which are deemed to be without foundation; that is, where they raise nothing to engage our obligations under the convention or where they are clearly frivolous. It seems patently absurd, for example, not to deal as swiftly as possible with someone who makes an asylum claim on the basis that he is bored in his own country or does not get on with his mother-in-law. Your Lordships may think that such a situation is curious but that has happened on some occasions. I cannot believe that your Lordships would not consider that it should be dealt with expeditiously.

Despite the clearly unfounded nature of those claims, the majority of such applicants will have 10 working days in which to lodge an appeal. It is only in port cases where the applicant is detained and the claim is certified as unfounded that the two-day time limit for the submission of an appeal will apply. In the majority of those port cases applicants will face removal to a safe third country where it will be open to them to lodge an asylum claim for consideration by that country. They will not be put at risk by our new procedures. Nevertheless, applicants will still have a right of appeal to an independent adjudicator here before their removal and we believe that that represents a significant strengthening of the safeguards which are available to asylum seekers.

The noble Lord, Lord Tordoff, and other noble Lords, said that two days or 10 days is not long enough. I remind your Lordships that under the rules there is the ability for that to be extended. The rules state: Where a special adjudicator or the tribunal is required to determine an appeal, or where the tribunal is required to provide written notification of the determination at or within a time prescribed, the special adjudicator or the tribunal may if necessary extend the time so prescribed either to enable it fairly to determine the appeal or, as the case may be, to provide the notification". So there is the ability to extend the time if necessary.

Given the nature of third-country cases, it is important that the applicant is returned as quickly as possible and we believe that a rapid system in those cases is both justified and essential. It is important that in creating new rights of appeal we do not encourage further misuse of our asylum systems and that the new systems do not become overloaded, to the detriment of genuine refugees. Our experience is that very few applicants would do other than try to extend their stay for as long as possible. I think it extremely unlikely, therefore, that many would "permit", as the amendment suggests, a hearing before the 10-day limit specified, even where their claim was clearly groundless and there was nothing for them to prepare. One must also question whether it is desirable that the length of time spent in detention should unnecessarily be increased in this way.

We have repeatedly made clear our belief that some form of filter mechanism is essential if the new appeals procedures are not to become clogged by those seeking to misuse the system. The Bill and the associated draft procedure rules seek to achieve that by creating a fast-track system for certain appeals where the asylum claim is certified to be without foundation. The proposed amendments would make it impossible for the procedural rules to make effective provision for accelerated procedures for dealing with claims which are without foundation.

It is worth bearing in mind that the Bill introduces new rights of appeal which had not previously existed. There is a likelihood that people who arrive here will make completely spurious applications if they believe that that will secure for them a reasonable period in this country. The proposals in the Bill and in the draft procedure rules do not put genuine refugees at risk. They are designed to enable us to deal quickly with those cases where no real issue as regards the need for protection arises; for example, where it is proposed to return a passenger to a safe third country where he will be dealt with in accordance with the convention.

The proposed amendments would undermine that intention. Even though it may not be the intention, they may be a further invitation to misuse the asylum system. Therefore, I hope that your Lordships will not seek to include the amendments in the Bill.

Lord Clinton-Davis

My Lords, I thought that the Minister was being rather uncharitable to his noble friend Lord Renton. It has taken us until 10.20 p.m. to get the pendulum to swing in our direction. We have tried and on this occasion we have succeeded and the noble Earl cannot share our joy with us.

agree with the noble Lord, Lord Renton, that it would be more appropriate for those issues to be dealt with in the schedule rather than in the clauses. However, we are dealing with a matter of principle. I am glad that apart from Amendment No. 31, on which he has no opinion, the noble Lord supports the position which I sought to represent.

The noble Lord, Lord Hylton, made the point that all experienced practitioners have advised in favour of the amendments. That has not been gainsaid by the Minister. He must know the views of people who deal with these cases day in and day out. Perhaps I may say with great respect that they have more experience than the Minister in such matters and they know what they are talking about in this regard.

The noble Earl, Lord Russell, mentioned the difficulties about legal aid. I shall not go into the argument which he adduced about the knock-on effects on other cases, but that is certainly true.

As regards the noble Lord, Lord Finsberg, 10 days or 14 working days amounts to the same thing and there is nothing in that.

Lord Finsberg

My Lords, I do not follow that, because they both refer to working days. I was taught that there is a difference between 10 and 14.

Lord Clinton-Davis

My Lord, yes, the noble Lord is quite right. He has always been perspicacious throughout his political career. In legal calculations there is no difference between 10 working days and 14 days. In the latter the weekends are excluded. I do not believe that the argument is essential to the point I am making. It may be that we have miscalculated. Again, we are considering a matter of principle.

On the questions raised by the noble Earl, there is again an underlying assumption that the Home Office could never be in the wrong about those so-called groundless cases. Having been a solicitor for almost all of my adult life, I should say that there have been groundless cases which I have won, and also groundless cases which I have lost. A lawyer must investigate every case on which he is consulted. Noble Lords who have been in another place who have dealt with constituency cases will know that it is the stuttering inarticulate people who are most difficult to deal with. They may or may not have a case. The noble Earl has never been in another place and therefore has never had any constituents to deal with. I can assure the noble Earl that in this regard I have the support of the noble Lord, Lord Finsberg. I do not know whether the noble Earl is saying that these cases are simply not worthy of investigation by a lawyer. In that event he is turning this whole case upside down. He says that under the rules the period of time may be extended. That is perfectly true but one does not simply apply for an extension idly. There must be grounds for that application and that in itself requires investigation on the part of the lawyer concerned. I again do not accept the argument that has been raised by the noble Earl. We are in something of a difficulty because we cannot really divide on the matter. Again I reserve the right to return to the issue. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 28A and 29 not moved.]

Schedule 2 [Appeals to special adjudicator: supplementary]:

[Amendments Nos. 30 and 31 not moved.]

Lord Clinton-Davis moved Amendment No. 31A: Page 14, line 7, at end insert: ("(3A) Any special provision made in the rules of procedure under section 22 above pursuant to sub-paragraph (3) above shall include provision for—

1. (a) the production of a written statement by the respondent to an appeal of the facts relating to the decision of action appealed against and the reasons therefore;
2. (b) the bringing of detained appellants before the appellate authority for the hearing of their appeals;
3. (c) procedures for the resolution of any dispute as to the existence or extent of any right of appeal whether conferred by this Act or by Part II of the 1971 Act;
4. (d) procedures for the purpose of ensuring that appellants have access to free legal advice and representation throughout appeal proceedings;
5. (e) time limits of sufficient length to enable appellants to seek and obtain legal advice before bringing an appeal, to prepare grounds of appeal, to seek evidence in support of the appeal and to prepare adequately for the hearing of the appeal.").

The noble Lord said: My Lords, I beg to move this amendment, which stands in the name of my noble friend Lord McIntosh. The purpose of the amendment is to ensure that when the rules of procedure are made they take into account those matters vital to the way in which an appeal is brought, conducted and determined. As the rules are made by statutory instrument, we cannot amend them in this House or indeed in another place. These provisions would ensure that when the final rules are made they would redress the shortcomings of the draft rules.

First of all, the Home Office would be required to provide the appellant with a statement setting out the evidence; the findings of facts; the inferences made; the applicable law and how it was applied, and so on. Under the draft procedure rules no explanatory statement is necessary. Only the notes of the interview, notice of appeal and the notice of decision need to be given.

Secondly, the provisions would ensure that the appellant would be present for, and able to give evidence at, any hearing of the case. Thirdly, the rules would be required to provide mechanisms for deciding whether or not there is an asylum issue before the adjudicator, and therefore whether the more generous procedures in the 1984 appeals procedure rules for the generality of immigration appellants should apply. This can most speedily and efficiently be dealt with as a preliminary issue as provided for in the 1984 procedure rules.

Fourthly, there would be a requirement that all applicants should have free legal advice and representation. The draft procedure rules do not impose any duty to ensure the availability of legal advice free of charge. Clearly that is a critical matter having regard to the issues which we have debated in the past few amendments and having regard to the power to be exercised by the Secretary of State in paragraph 4 of Schedule 2 to certify that a case may be without foundation.

In the debate on Second Reading the noble Earl gave assurances to the House on a number of occasions that legal advice would be available when an application was made, before an appeal was lodged and while an appeal was being prepared. Therefore there should be no objection to an amendment which would secure that objective. Paragraph (e) of the amendment would ensure that any time limits which are set must be capable of ensuring that legal advice can be sought and a case properly presented and argued. I do not think I need refer further to that, because it has been extensively argued this evening. I beg to move.

10.30 p.m.

Earl Ferrers

My Lords, I long to give the noble Lord, Lord Clinton-Davis, some encouragement. He said in connection with the previous amendment that he did not feel that he could divide the House. Of course, if he does not wish to do so he need not. I understand the noble Lord's problem. If he had the facility of a chameleon and could swivel his eyes through 180 degrees he would discover that the reason why he does not want to divide the House is that there are no Back-Benchers behind him. Therefore, I understand the difficulty in which he finds himself. I do not suggest that the House should be divided, merely that the noble Lord has a difficulty.

The amendment would require a number of points to be dealt with in the procedure rules for asylum appeals. The first is to require the production of a written statement by the respondent to an appeal. Preparation of a separate explanatory statement will not be necessary in asylum appeals. All the required information will have been given to the applicant when his application is refused and will be put before the special adjudicator.

The second point would require provision to be made for the bringing of detained appellants before the appellate authority for the hearing of their appeals. I doubt whether that is really necessary. The draft procedure rules give only a very limited discretion to an appellate authority to determine an appeal in the absence of the appellant, whether or not he is detained.

The third item is a procedure for the resolution of any dispute as to the existence or extent of any right of appeal. Such a procedure exists under rules 8 and 11 of the 1984 procedure rules which require that if the respondent alleges that the person is not entitled to appeal the appellate authority shall determine that as a preliminary issue. I can confirm that provision for a similar procedure is to be included in the final revision of the asylum procedure rules.

The fourth point concerns access to free legal advice. That is not an appropriate issue for inclusion in these rules of procedure. The availability of legal aid is a matter for regulations made under the Legal Aid Act.

Finally, the fifth point of the amendment requires the procedure rules to provide time limits of sufficient length to enable the appellant to do a number of things. We believe that the time limits provided in the draft procedure rules, both for the lodging of notice of appeal and for the determination of appeals, are adequate and fair.

I suggest to your Lordships that there is no need to put those provisions upon the face of the Bill and I hope that the noble Lord, Lord Clinton-Davis, will accept that.

Lord Clinton-Davis

My Lords, time is getting on. I shall not pursue the matter at this stage. I listened to what the Minister said. I am beginning not to understand it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31B not moved.]

Lord Clinton-Davis moved Amendment No. 32: Page 14, line 25, leave out from ("convention") to end of line 26.

The noble Lord said: My Lords, with Amendment No. 32 we seek to ensure that all cases where there is a potential claim for asylum will be subject to a full right of appeal rather than the fast-track system. I would not expect the noble Earl to agree with that because superficially it would undermine his position. I believe that the Government have rushed into the issue almost regardless of natural justice and of the rights of even the genuine asylum seeker, who is likely to be caught up in the situation which the noble Earl regards as unacceptable.

Under the provisions of the Bill, the Home Office will exercise its view as to whether a case is without foundation —whether it is frivolous or vexatious. In law the position relating to frivolous or vexatious litigants has to be adjudicated upon most carefully by the court. It does not lie within the ability of a defendant to an action to say that someone is vexatious or frivolous. He can claim that; he can argue it. But he has to go before a court to obtain an order to that effect.

In the Bill we have a totally different situation. The Home Office makes that determination, perhaps in good faith, but I argue that it can be wrong, just as some defendants to civil actions may be wrong in seeking to declare that someone is vexatious or frivolous. Sometimes those actions do not succeed. Frequently they relate to a person who brings his case in person and does not employ a lawyer. One often sees such persons in what is known as the "Bear Garden" in the Royal Courts of Justice. It is familiar to the noble Lord, Lord Renton. Such people may not appear capable of running an action. They may appear vexatious or frivolous from the way they dress and the bags that they carry full of papers, but that is not always so. Yet asylum seekers—they are in a different situation from the one to which I have referred—are to be declared to be vexatious or frivolous in the objective view of the Home Office alone. I do not believe that that system attracts natural justice.

The situation could be used against people who are at present granted exceptional leave to remain or against the temporary refuge granted to Bosnian ex-detainees when the Home Office is not satisfied that such applicants qualify as refugees under the terms of the convention but also believes that it would be wrong to force them to return at present. I hope that the Government will give an assurance that the power is intended for use against third country cases only. I do not suppose that they will do so. However, when discussing the practicalities of the matter, I should like to hear from the Minister how the Home Office will decide on the safety of a third country. That point has been raised on many occasions previously and has not attracted a reasonable answer from the Minister. Although, as I anticipate, the Minister may reject the amendment, he may be able to cast some light on that issue. I beg to move.

Lord Renton

My Lords, I hope that my noble friend will resist the amendment.

Lord Clinton-Davis

My Lords, we have lost the pendulum.

Lord Renton

My Lords, that is the noble Lord's misfortune, not mine. However, even in the light of the remarks of the noble Lord, the adjudicator will be assumed to be capable of deciding whether there is a breach of the United Kingdom's obligations under the convention. An adjudicator capable of deciding that would be at least as capable of deciding whether the appeal was frivolous or vexatious.

I never like to use harsh words when the noble Lord, Lord Clinton-Davis, has given us the benefit of his wisdom. However, I believe that his amendment is quite without foundation.

Earl Russell

My Lords, it is a point of considerable importance. Anyone who listened to the noble and learned Lord, Lord Ackner, in Committee will appreciate that there is at least some strong ground for arguing that whether an appeal is frivolous or vexatious is a judicial matter, susceptible to judicial determination. In this provision we appear to have an attempt by the Executive to act in the capacity of judge.

I appreciate that all courts are the Crown's courts, but it is a long time since the Crown or its Executive representatives attempted to sit and act as judge within them. King James I, in an unwise moment when he was new to this country and its legal system, revived that claim. It did not take long to explain to him that because he was not trained in the law he could not do it. Being on the whole quite a sensible fellow, he accepted that argument.

However, the Executive now seems a little more resistant to the argument that it is not capable of acting in a judicial manner. It is not just that the Executive is not learned in the law. There is also here a question of the Executive acting as judge and party in its own cause. Anyone who has listened to debates on the Bill will appreciate that there is a strong sense within the Executive that the flow of asylum seekers must be reduced. I think that the Minister will not wish to dispute that. Since the Executive has that sense, in judging whether an appeal is frivolous or vexatious it will be acting in its own interests to achieve an object which it has itself set. That means that it is a little unlikely that it will be capable of acting in the proper and impartial judicial manner. So deciding whether an appeal is frivolous or vexatious is something which the Executive lacks the training to do, is not judicially competent to do, and in any case is an interested party.

This section of the Bill is serious in its constitutional implications. I do not know whether tonight is the time, but I hope that there will be a chance for the opinion of the House to be expressed upon it before the Bill is through.

Earl Ferrers

My Lords, the noble Lord, Lord Clinton-Davis, said that he did not think that the Government would wish to accept his amendment. I am bound to say that he has the powers of a clairvoyant. The noble Earl, Lord Russell, said that we were anxious to stem the flow of asylum seekers. That is not right. We are not keen to stem the flow of genuine asylum seekers. What we are concerned to do is to stem the flow of spurious asylum seekers and to permit only the genuine ones to come.

Paragraph 4 of Schedule 2 to the Bill creates special appeal procedures cases which the Secretary of State certifies to be without foundation. Sub-paragraph (3) of paragraph 4 makes it clear that a claim is without foundation if, and only if, it does not raise any issue as to the United Kingdom's obligation under the convention, or it is otherwise frivolous or vexatious.

The proposed amendment would change that definition by omitting reference to claims being frivolous or vexatious. That would give access to the full asylum appeals procedures to anybody whose claim raised any issue as to our convention obligations, however frivolously, however vexatiously. I find that remarkable.

It may be helpful to remind your Lordships why it is necessary to have a special appeals procedure for cases without foundation. Under the 1971 Act certain appeals may only be brought after a person has left this country. There are appeals against refusal of leave to enter unless the appellant holds a current entry clearance; appeals against a refusal to revoke a deportation order; and appeals against directions for a person's removal as an illegal entrant.

Under the Bill an asylum seeker will for the first time have the right to appeal to a special adjudicator against any of these decisions while he is still in this country. That is a considerable change. Only an asylum seeker will have that right. So there would be a temptation for, say, a person who has been refused leave to enter, or who has been detained after entering this country in breach of a deportation order, to make a wholly spurious asylum claim in order to delay his removal. It is in order to discourage that kind of misuse of the asylum process and to prevent the asylum appeal system from becoming overloaded with cases which have nothing to do with the protection of refugees that a special appeals procedure is required.

Under that procedure there will be shorter time limits for determining the appeal. If the appeal adjudicator does not agree that the Secretary of State is right to regard the claim as without foundation, he may refer the case back for further consideration. If he does agree that the claim is without foundation, there is no further right of appeal to a tribunal.

We believe that the measures will provide a sensible and effective filtering system. But if this amendment were to be accepted, the definition of "without foundation" would be weakened. I suggest to your Lordships that totally unmeritorious cases in which the applicant has failed to show any plausible basis for his asylum claim would nevertheless get into the full appeals process. The result would be to encourage rather than discourage the misuse of the asylum process.

The noble Lord, Lord Clinton-Davis, made a number of remarks, but all that the Secretary of State will do is certify that in his opinion the claim is without foundation. The special adjudicator will have to decide whether that opinion is right. So the issue of whether a claim is without foundation will not rest with the Secretary of State alone, as the noble Lord, Lord Clinton-Davis, suggested.

The noble Lord wanted to know how we assess the third countries. The safety of a third country will be assessed on our knowledge of that country's laws and practices in relation to asylum seekers. We will need to be satisfied that a person who is sent to a third country will be treated in accordance with the principles of the convention.

For those reasons I suggest to your Lordships that the amendment would be inappropriate in the Bill.

10.45 p.m.

Lord Clinton-Davis

My Lords, at this hour I am sure that in my concluding remarks I shall not persuade the Minister to change his mind. However, I should like to make two points.

First, the offensive part of this measure is the way in which the effect of the certification that an application is vexatious or frivolous, made by the Home Office—as the noble Earl, Lord Russell, indicated, made by an interested party—is to contaminate the whole matter of the process of appeal. This is an argument that I put earlier and I shall not weary the House with it again. But in my view those periods for contesting an appeal are quite impossible and will be seen to be working in an impossible way in practice.

On the matter of the third country, I am not at all satisfied that the Home Office goes about determining by proper investigations the practice within such a third country. Much is taken for granted. Again, that is what we find offensive about the procedures deployed by the Home Office in that regard. Sometimes even a cavalier attitude is taken. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 not moved.]

Clause 9 [Appeals from Immigration Appeal Tribunal]:

Lord McIntosh of Haringey moved Amendment No. 34: Page 7, line 5, leave out ("material to that determination").

The noble Lord said: My Lords, with this amendment we move to Clause 9 of the Bill, the clause which deals with appeals from the Immigration Appeal Tribunal. Although I wish to speak separately to Amendment No. 35, I feel that it would be wise for me to make one or two observations about Clause 9 as it was amended in Committee. In a sense, Amendment No. 34 is a paving amendment to Amendment No. 35, which seeks to remove the amendments moved by the Government and agreed at Committee stage.

Amendment No. 34 is a probing amendment. I want to be clear as to what is meant by the phrase which we propose to delete—"material to that determination". My understanding is that the phrase restricts the grounds of appeal under Clause 9 to matters of immigration law; in other words, those matters which have been dealt with at an earlier stage. Mr. Charles Wardle, the Minister, assured the Committee in another place that Clause 8 did not subtract any right of appeal because judicial review was a separate process that begins in the High Court. He said, The view of my noble friend the Lord Chancellor is that it is better to allow the appeal to go direct to the Court of Appeal and keep delays to the minimum. That is, I understand, consistent with the way in which appeals arising from tribunals under social security legislation are dealt with".

In moving the amendment I am asking whether it is the case that the words, "material to that determination" restrict the consideration of the appeal court to immigration law. Does it therefore mean that issues of administrative law are excluded from the consideration of the Court of Appeal? Administrative law, of course, is concerned with much wider questions. It can be concerned with issues of fairness and with issues of legitimate expectation and so forth, which are not covered in immigration law.

The Minister in another place referred to social security legislation. I suggest to the Government that neither social security legislation nor employment legislation are strictly comparable with immigration appeals. The employment appeals tribunal, unlike an immigration tribunal, is chaired by a judge. An immigration tribunal is only chaired by a legally qualified person. The analogy, therefore, which Mr. Wardle drew between other legislation and immigration law is not strictly valid.

Before I move on to the more important and more wide-ranging Amendment No. 35, I hope to obtain an ' answer from the Government in regard to what is meant by "material to that determination" and whether, as I suspect, it restricts the issues to those covered by immigration law. I beg to move.

Earl Ferrers

My Lords, I believe that I can satisfy the noble Lord, Lord McIntosh. If so, I shall be delighted, as I know he will also be. He believes that the words restrict consideration to matters of immigration law. However, the words do not confine the Court of Appeal only to questions of immigration law. The court can look at any issue of law which is involved in the tribunal decision, including any other kind of law such as European Community law. Any part of the law in which the tribunal decision was made can be included. Therefore, it does not only refer to immigration law.

Lord McIntosh of Haringey

My Lords, I shall have to consider that answer. It is helpful to know that European Community law can be covered. But the phrase used by the Minister referred to any part of the law relating to the basis on which the original decision was made. I do not believe that that extends to issues relating to administrative law and I do not believe that it extends to issues comparable to those considered in either employment or social security appeals. I think it would be inappropriate for me to pursue this amendment.

Earl Ferrers

My Lords, with the leave of the House, perhaps I may intervene again. The consideration with which the noble Lord is concerned is covered. Administrative law is covered if that is a matter which the tribunal has considered.

Lord McIntosh of Haringey

My Lords, one asks whether the tribunal is capable of considering issues of administrative law. The reply of the Minister was conditional on the matter being considered by the tribunal, whereas surely the tribunal would not itself be capable of considering issues of administrative law. Therefore, to the extent that the tribunal cannot consider these matters, the Court of Appeal cannot consider them. I wonder whether the House will allow the Minister to respond if he feels disposed to do so.

Earl Ferrers

My Lords, I am hesitant to break the rules of procedure. Probably the best thing for me to do is to write in detail to the noble Lord to make it perfectly clear. But my understanding of the position is that any of the matters of law which the tribunal has considered can be considered by the Court of Appeal. If it considers matters of administrative law that is fine.

Lord McIntosh of Haringey

My Lords, I am grateful. However, it does not reassure me as far as the amendment is concerned. I believe that the Government ought to be briefed about what matters of law the Immigration Appeal Tribunal can cover. My amendment is not obscure but very explicit. The amendment refers to matters "material to that determination". It ought to have been included in the Minister's brief for him to be able to say exactly what issues of law are covered by the administrative tribunal. All the Minister is saying is that I am virtually obliged to come back to the matter at Third Reading after receiving his letter. I am grateful for that letter and on the basis of it I beg leave to withdraw the amendment. However, it will be obvious that I am not satisfied with the response.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No.35: Leave out Clause 9 and insert the following new clause:

cc648-54
1. Appeals from Immigration Appeal Tribunal 2,766 words