§ 3.35 p.m.
§ Read a third time.
Baroness Gardner of Parkes moved Amendment No. 1:
After Clause 6, insert the following new clause:
§ Grants to local authorities
§ (".The Secretary of State shall make a specific grant to any local authority which in any year incurs expenditure in making housing, social services or education provision for asylum-seekers or their dependants.").
§ The noble Baroness said: My Lords, the new clause proposed by Amendment No. 1 is similar to the one tabled by my noble friend Lord Jenkin of Roding at Committee stage and the same as the one I moved on Report. On that occasion I had support from many different sectors of the House and I believe we all agreed that the care of asylum seekers in the period while they are seeking asylum—not when they become permanent residents of this country—should be a national responsibility although by chance it happens to fall most heavily on the London boroughs.
§ There have been instances—my noble friend Lord Jenkin quoted a case near Stansted Airport—where the whole of the council's housing stock was taken up by refugees. On the whole, however, it is the bigger authorities which are hardest hit and which have to provide accommodation for the asylum seekers at great cost to themselves.
§ One difficulty is that it is unpredictable where asylum seekers will settle. There is always stress on Westminster and Kensington and Chelsea and also on Hillingdon and Hounslow because they are near the airport. Elsewhere it fluctuates from time to time and from year to year. There is therefore no way of saying that specific boroughs experience the problem. The problem is really a London problem.
§ Over the years there have been attempts to suggest that people, such as the Vietnamese, should settle outside London. They did not like that; they gradually came back to London. There is no way, as a democracy, that we can determine where people should live. But wherever they happen to settle as asylum seekers places a heavy cost on that authority.
§ The amendment asks the Secretary of State to make a specific grant to local authorities, wherever they are, for the costs they bear in providing housing, social services and education to asylum seekers and their dependants. I have been convinced of the need for a specific grant for asylum seekers' costs because the London Boroughs Association—and I know that the Association of London Authorities feels the same—brought to my attention the plight of a small number of London boroughs which alone are bearing the costs 1146 of what should be a national responsibility. Over 90 per cent. of asylum seekers entering the UK come to London and each year a few London boroughs face enormous additional costs in providing housing, social services and education.
§ The pressure on different boroughs varies from year to year. Currently, it is Ealing and Hammersmith and Fulham which are under the greatest pressure; last year, it was Westminster and Camden. Next year it may be different boroughs. The boroughs face enormous extra costs—an estimated £40 million across London this year—on behalf of the nation due only to an accident of geography. Asylum seekers naturally gravitate towards the capital and, once communities are established, the attraction becomes greater.
§ It is unjust that the London boroughs alone should shoulder the burden. Central government should provide money from the national purse to help them. The Government recognised the strength of my argument and recently agreed to special grants for authorities which deal with large numbers of unaccompanied child asylum seekers and refugees from the former Yugoslavia. A precedent has therefore been set. Unfortunately, the grants will meet only a fraction of the cost and hardly affect London. They will last for only one year. A more permanent arrangement is needed which recognises the ongoing burdens on local authorities, especially in London.
§ I am convinced that a specific grant is the best way to achieve that aim. It is able to target effectively those authorities suffering in any one year. The Government may have their own ideas as to how that can be achieved. However, I should like the Minister to publicly recognise the strength of the case for special arrangements to help local authorities that receive high numbers of asylum seekers and to give a firm undertaking as to the action that the Government will be taking to resolve the situation.
§ I would not wish to be in a position to have to divide the House because I believe that this issue is so just that the Government should recognise it. If the London boroughs had an assurance from the Government that they would look at the matter, that would be satisfactory. However, up to this stage in the Bill I have had no such indication from the Government. I also think that it is important to realise that many noble Lords feel as I do. There is a strong reaction in this matter. I hope that the Minister will give us some consolation and that he will look carefully at the wording of the amendment. It is quite generous to the Government. It makes no specific recommendation on the amount or percentage of grant. The amount we are talking about could be anything from £5 to £5 million. It is not a difficult demand to place on the Government, but it is just and fair that this responsibility should be borne nationally. The amendment would be one way of doing it. I beg to move.
§ Lord McIntosh of Haringey
My Lords, as the noble Baroness, Lady Gardner, has said, the amendment is supported not only by the Conservative-controlled London Boroughs Association but also by the Labour-controlled Association of London 1147 Authorities. Indeed, I have reason to believe that it would be supported also by the Association of Metropolitan Authorities, which drafted amendments that I put forward at the Committee and Report stages. Having failed to make any progress with the Government on my amendments, I am happy, as I indicated at Report stage, to support the amendment moved by the noble Baroness.
She quite rightly said that if the Government were to make significant concessions on the funding of the costs of asylum seekers, particularly in London boroughs, the associations would be satisfied with that. Unfortunately, she will confirm that it was the same amendment that she put forward at Report stage and the responses of the Government were not particularly satisfactory. The Minister on that occasion, the noble Lord, Lord Strathclyde, thought that the situation was less severe because the number of asylum seekers was decreasing. However, the number of asylum seekers has increased and decreased from year to year for reasons which are outside our control.
Even if the number of asylum seekers awaiting a decision has increased because of improved administrative efficiency—we are all grateful for improvements of that kind—I do not think that any of us, particularly those who were listening to the exchanges on foreign affairs a few minutes ago at Question Time, would be confident in saying that the kind of upheavals which cause increases in the number of asylum seekers are guaranteed not to occur in the future. The sad fact is that the world is in such a state that the migration of people from countries where they are persecuted, or worse, to countries which are safer will be a feature of world politics and world society in the future as it has been in the past. No decision of this Government, I fear, will overcome that.
The Minister said in replying on that occasion that the standard spending assessments are continually monitored. That is all very well but this problem has been with us for quite a considerable period. During that period there has not been any significant concession from government towards a more just recognition of the very substantial costs which are incurred not only for the housing of asylum seekers but also for the provision of education services and social services. Even if there had been past recognition, the sad fact is that the standard spending assessments are always in arrears. It is very difficult for local authorities to make up any deficit they have when they incur a deficit because of their statutory responsibilities.
It is no good Ministers saying either that the Bill no longer requires local authorities to provide permanent accommodation for those asylum seekers who are homeless. Temporary accommodation unfortunately costs at least as much as, and sometimes more than, permanent accommodation. There is no reduction in the financial burden on local authorities from that.
The most important point of all—I do not wish to detain the House on this matter longer than I have to —is that local authorities receive asylum seekers without warning. They cannot make provision in their 1148 budget for a year against the possibility that asylum seekers may come to Westminster, Haringey, Ealing, Brent or wherever it may be. They therefore overspend in that year and subsequent revision of the standard spending assessment does not do them any good. They have overspent and they are at risk of penalties from government under local government finance legislation. Only a specific grant of the kind proposed by the noble Baroness will solve the problem. None of the suggestions made by the Government so far would go more than a tiny part of the way towards what the noble Baroness and the local authorities concerned ask for and need.
§ 3.45 p.m.
§ Lord Hylton
My Lords, I supported this amendment in its earlier form and I wish to continue to do so today. The noble Baroness, Lady Gardner of Parkes, has provided an excellent opportunity to enable the Government to discharge a national responsibility in a fair and equitable way. I just hope that they will grasp that chance.
§ Lord Pitt of Hampstead
My Lords, I wish to ask the Minister one question. Can he tell the House in what way the Government take account of the expenditure of any authority on asylum seekers when they are deciding on their standard spending assessment? Can he tell the House exactly how the Government do it?
§ Baroness Hamwee
My Lords, I should like to add the support of noble Lords on these Benches to the amendment proposed by the noble Baroness. I thank her for bringing it again to the House and I congratulate her on her persistence in doing so, which is entirely right and proper.
It is a major matter for the authorities concerned, but not just for the authorities as if they were bodies unrelated to the people living in their areas. The reason for being so concerned about the particular needs of particular authorities is that, if an authority has to spend an unexpectedly substantial amount to meet the needs of refugees coming to its area, there must be cuts elsewhere in order to meet that demand. That is a simple matter of arithmetic. The unpredictability means that no local authority can sensibly budget for such a contingency.
The level of need can be very high in some situations. In previous debates the noble Baroness has drawn some of the figures to our attention. For example, the cost to the London Borough of Hillingdon for social services can be of the order of £1 million a year. There have been two years in which that has been the case. The mechanism of the standard spending assessment is one for assessing need to spend where needs are greater but it cannot predict the future. There is no provision to take account of the unexpected arrival of refugees.
It seems to me that, given the circumstances, the amendment is quite a modest one. It requests a specific grant but is not prescriptive as to the amount of that grant. It leaves a great deal to the Secretary of State's 1149 discretion and good sense. The noble Baroness has struck a very common sense balance in what she is requesting in the amendment. I support her.
§ Lord Monson
My Lords, I strongly support this amendment. The German election results have been much in the news this week where massive gains have been made by extreme nationalist parties in the state of Hesse largely because of resentment at the high cost of absorbing large numbers of asylum seekers. This amendment will ensure that the cost of looking after asylum seekers does not fall unfairly and disproportionately on the community charge payers in a small number of boroughs, thereby making it even less likely than it is at present that Britain will go down the German road.
§ The Parliamentary Under-Secretary of State, Department of the Environment (Lord Strathclyde)
My Lords, I approach this amendment with a certain sense of déjà vu. Once again my noble friend proposes a specific grant to local authorities in respect of the cost of service provision for asylum seekers and their dependants. No one can doubt my noble friend's deep and genuine concern over this issue. But the Government remain firmly of the view that a grant of this sort is unnecessary. I apologise if, on previous occasions, I have failed to make those reasons for this clear, and I hope to make amends now.
There is a general disposition in Government against specific grants. The reasons for this are well understood and generally shared by local authorities. By tying up money for particular purposes when it might otherwise be a general resource for each authority to allocate as it thinks fit, specific grants restrict the discretion of authorities to determine their own spending priorities. For similar reasons, specific grants also undermine accountability.
The Government do accept that asylum seekers may give rise to higher costs than some other sections of the population of an area. But even if there were no asylum seekers whatever entering this country, the local government finance system would still have to distribute resources to local authorities for the cost of providing for the homeless, the education of children with special needs, and the provision of social services for children from ethnic minorities and so on. The system would also have to provide different amounts to different authorities according to the incidence of these needs in each area. The pressures which asylum seekers bring to bear on local services are not essentially different in kind from the pressures which anyone with distinctive needs places on the local authority, and which the system of standard spending assessments is designed to reflect. The noble Lord, Lord Pitt of Hampstead, asked a perfectly appropriate question in respect of that.
SSAs reflect the relevant characteristics of an area, and allocate resources accordingly. They do not attempt to record the presence of particular asylum seekers, any more than they focus on the immigration status of any other sub-set of the population. But they do measure characteristics closely associated with spending needs and distribute resources accordingly. 1150 We monitor the SSA system on a continuing basis in close consultation with the local authority associations and ensure that the data used in the various indicators of need are the most up-to-date available. It is inevitable that the data reflect the position obtaining a year or two ago. But it would really require a dramatic change in the characteristics of an area in the intervening period to cast doubt on the validity of SSAs as a means of distributing resources.
My noble friend made the point that London is particularly troublesome as regards this problem. I have said on previous occasions—and I hope that my noble friend can accept—that London boroughs' SSAs are high, and much higher than in the rest of the country, precisely because those boroughs face spending pressures such as those which asylum seekers generate. Perhaps we ought to see this problem in the context that the total London SSAs are over £6 billion.
We believe that the present method of constructing SSAs gives us a reliable system of measuring spending needs. But we are always open to suggestions for improvements. During the debate at Report stage I drew my noble friend's attention to the recent announcement by my right honourable friend the Secretary of State for the Environment, that my department will be conducting a fundamental review of SSAs over the next few months to ensure that they continue to take the most appropriate factors into account. That review is under way and the possibility of including a direct indicator for homelessness—which is one of the main spending needs that the proponents of a specific grant would expect to see it cover—will of course be considered, if we receive specific proposals. Equally, we are prepared to consider carefully all other suggestions for changes which are put forward, with a view to implementing whatever changes seem appropriate in time for the 1994–95 local authority finance settlement. The SSA review depends heavily upon the co-operation of the local authority associations, and they will have ample opportunity to make their views known.
The local government finance system already contains mechanisms for ensuring that authorities get sufficient resources to cover the costs to which asylum seekers past and present give rise. If it can be shown that the system can be improved, we are open to persuasion. Indeed, this very afternoon my right honourable friend the Secretary of State is meeting a delegation from the London Boroughs Association and the Association of London Authorities to discuss a range of issues concerned with local government finance in London. I understand that the treatment of homelessness and the costs to which refugees give rise are on the agenda. It is much better to explore an issue such as the costs of asylum seekers in a forum such as that, than by pressing an unnecessary and, as regards this one, unworkable amendment.
I hope that my explanation today is more acceptable to my noble friend and to the House than my previous one. I hope that she will feel able to withdraw her amendment.
§ Baroness Gardner of Parkes
My Lords, before my noble friend sits down, can he explain that point more 1151 clearly? Is he saying that the Secretary of State will be prepared to look at the asylum seekers' costs as a specific element as a new indicator in the SSAs? He said that he would look at the question of homelessness, but did he also say that he would look at the costs of asylum seeking in terms of the SSAs? I ask that question particularly because the point that he made about London in general does not cover the unpredictability as to where asylum seekers come from, and whether they came yesterday, today or will arrive tomorrow. That problem has been brought out by so many speakers. Can my noble friend clarify that point before I make my decision on that matter?
§ Lord Strathclyde
My Lords, I regret that I do not believe that I can give my noble friend the comfort that she desires. I did not dwell on the technicalities of the amendment. Perhaps I may briefly do so. The administration of a specific grant such as this would be a nightmare. For instance, who would qualify? Would it be just asylum seekers or former asylum seekers as well? Exactly which costs are to be reimbursed? How does one distinguish between spending generated by the asylum seekers alone and spending that would have occurred anyway? The complexities are both unappealing and unnecessary.
§ Lord McIntosh of Haringey
My Lords, on that specific point, surely all the criticisms that the Minister makes regarding specific grants, and the difficulties faced in allocating them, apply equally to the special grants which the Government already make.
§ Lord Strathclyde
My Lords, the existing special grants are for special and outstanding circumstances which genuinely cannot be accommodated by the SSA system. The noble Lord knows which ones they are. As I said, we shall be looking at a whole range of provisions within the SSAs. My noble friend asked me specifically whether that would include refugees. I cannot give her a firm commitment on that, but we are very open to suggestions from local authority associations as to what will be most appropriate.
§ Baroness Gardner of Parkes
My Lords, I thank my noble friend for that reply. He has done his best to answer my problems, but I do not feel that he has done so because he said that he could not give an undertaking of any sort to look into this matter. The wording of my amendment is so general that it would not require anything as demanding as he suggested. It would be open to all kinds of flexibility in interpretation afterwards. It is a most important issue. I beg leave to seek the opinion of the House.
§ 3.59 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 121; Not-Contents, 134.1153
|Division No. 1|
|Ackner, L.||Aylestone, L.|
|Acton, L.||Barnett, L.|
|Airedale, L.||Beaumont of Whitley, L.|
|Ardwick, L.||Beloff, L.|
|Ashley of Stoke, L.||Biddulph, L.|
|Birk, B.||Kennet, L.|
|Bonham-Carter, L.||Kilbracken, L.|
|Borthwick, L.||Kirkhill, L.|
|Bottomley, L.||Listowel, E.|
|Brentford, V.||Llewelyn-Davies of Hastoe, B.|
|Bridges, L.||Lloyd-George of Dwyfor, E.|
|Brightman, L.||Longford, E.|
|Bruce of Donington, L.||Lovell-Davis, L.|
|Callaghan of Cardiff, L.||McIntosh of Haringey, L.|
|Campbell of Eskan, L.||McNair, L.|
|Carmichael of Kelvingrove, L.||Mallalieu, B.|
|Carter, L.||Mayhew, L.|
|Chorley, L.||Milner of Leeds, L.|
|Cledwyn of Penrhos, L.||Molloy, L.|
|Clinton-Davis, L.||Monkswell, L.|
|Cocks of Hartcliffe, L.||Monson, L.|
|Dainton, L.||Morris of Castle Morris, L.|
|David, B.||Morris of Kenwood, L.|
|Desai, L.||Mulley, L.|
|Diamond, L.||Nicol, B.|
|Donaldson of Kingsbridge, L.||Ogmore, L.|
|Donoughue, L.||Pitt of Hampstead, L.|
|Dormand of Easington, L.||Plant of Highfield, L.|
|Eatwell, L.||Ponsonby of Shulbrede, L.|
|Ennals, L.||Prys-Davies, L.|
|Ewing of Kirkford, L.||Raglan, L.|
|Faithfull, B.||Richard, L.|
|Falkender, B.||Richardson, L.|
|Falkland, V.||Robertson of Oakridge, L.|
|Fisher of Rednal, B.||Rochester, L.|
|Fitt, L.||Russell, E.|
|Flather, B.||Sainsbury, L.|
|Gallacher, L.||Sefton of Garston, L.|
|Gardner of Parkes, B. [Teller.]||Serota, B.|
|Gladwyn, L.||Shannon, E.|
|Graham of Edmonton, L.||Shepherd, L.|
|Gregson, L.||Stallard, L.|
|Hamwee, B.||Stoddart of Swindon L.|
|Hanworth, V.||Strabolgi, L.|
|Harris of Greenwich, L.||Taylor of Blackburn, L.|
|Healey, L.||Thomson of Monifieth, L.|
|Henderson of Brompton, L.||Tordoff, L.|
|Hilton of Eggardon, B.||Turner of Camden, B.|
|Hirshfield, L.||Varley, L.|
|Hollis of Heigham, B.||Wallace of Coslany, L.|
|Hughes, L.||Walpole, L.|
|Hylton, L. [Teller.]||Wedderburn of Charlton, L.|
|Ilchester, E.||Wharton, B.|
|Jacques, L.||White, B.|
|Jay, L.||Wilberforce, L.|
|Jay of Paddington, B.||Williams of Elvel, L.|
|Jeger, B.||Winchilsea and Nottingham, E.|
|John-Mackie, L.||Wyatt of Weeford, L.|
|Judd, L.||Young of Dartington, L.|
|Aberdare, L.||Buckinghamshire, E.|
|Abinger, L.||Butterworth, L.|
|Aldington, L.||Cadman, L.|
|Alexander of Weedon, L.||Caithness, E.|
|Allen of Abbeydale, L.||Campbell of Alloway, L.|
|Annaly, L.||Campbell of Croy, L.|
|Archer of Weston-Super-Mare, L.||Carnegy of Lour, B.|
|Carr of Hadley, L.|
|Arran, E.||Chalker of Wallasey, B.|
|Ashbourne, L.||Clanwilliam, E.|
|Astor, V.||Clark of Kempston, L.|
|Astor of Hever, L.||Cockfield, L.|
|Auckland, L.||Colnbrook, L.|
|Balfour of Inchrye, L.||Colville of Culross, V.|
|Barber, L.||Constantine of Stanmore, L.|
|Belhaven and Stenton, L.||Cooke of Islandreagh, L.|
|Birdwood, L.||Cranborne, V.|
|Blake, L.||Crathorne, L.|
|Blatch, B.||Cross, V.|
|Boardman, L.||Cullen of Ashbourne, L.|
|Boyd-Carpenter, L.||Cumberlege, B.|
|Brougham and Vaux, L.||Davidson, V.|
|Denham, L.||Mountevans, L.|
|Denton of Wakefield, B.||Mowbray and Stourton, L.|
|Dundee, E.||Munster, E.|
|Eccles, V.||Murton of Lindisfarne, L.|
|Eccles of Moulton, B.||Nelson, E.|
|Elles, B.||Nelson of Stafford, L.|
|Elphinstone, L.||Norfolk, D.|
|Elton, L.||Orkney, E.|
|Ferrers, E.||Orr-Ewing, L.|
|Finsberg, L.||Park of Monmouth, B.|
|Fraser of Carmyllie, L.||Pearson of Rannoch, L.|
|Gainford, L.||Pender, L.|
|Geddes, L.||Platt of Writtle, B.|
|Gisborough, L.||Plummer of St. Marylebone, L.|
|Glenarthur, L.||Prentice, L.|
|Goschen, V.||Quinton, L.|
|Greenway, L.||Rankeillour, L.|
|Gridley, L.||Reay, L.|
|Grimthorpe, L.||Rennell, L.|
|Hailsham of Saint Marylebone, L.||Renton, L.|
|Rodger of Earlsferry, L.|
|Hampden, V.||Romney, E.|
|Harding of Petherton, L.||St. Davids, V.|
|Hayhoe, L.||Saltoun of Abernethy, Ly.|
|Henley, L.||Sandys, L.|
|Hesketh, L. [Teller.]||Simon of Glaisdale, L.|
|HolmPatrick, L.||Skelmersdale, L.|
|Hood, V.||Soulsby of Swaffham Prior, L.|
|Howe, E.||Strange, B.|
|Hylton-Foster, B.||Strathclyde, L.|
|Kinnaird, L.||Strathmore and Kinghorne, E. [Teller.]|
|Leigh, L.||Sudeley, L.|
|Lindsay, E.||Suffield, L.|
|Long, V.||Terrington, L.|
|Lyell, L.||Thomas of Gwydir, L.|
|Mackay of Ardbrecknish, L.||Thorneycroft, L.|
|Mackay of Clashfern, L.||Trefgarne, L.|
|Macleod of Borve, B.||Trumpington, B.|
|Mancroft, L.||Ullswater, V.|
|Marlesford, L.||Vaux of Harrowden, L.|
|Merrivale, L.||Vivian, L.|
|Mersey, V.||Wakeham, L.|
|Milverton, L.||Westbury, L.|
|Monteagle of Brandon, L.||Wise, L.|
|Morris, L.||Wolfson, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.7 p.m.
§ Clause 11 [Appeals from Immigration Appeal Tribunal]:
§ [Amendment No. 2 not moved.]
§ Clause 12 [Visitors, short-term and prospective students and their dependants]:
§ Lord McIntosh of Haringey moved Amendment No. 3:
§ Page 8, line 27, after ("visitor") insert ("other than as a visitor to a person related by blood or marriage.").
§ The noble Lord said: My Lords with Amendment No. 3. we move to the issue of appeals for visitors. I am conscious that this is an issue which has been discussed at considerable length in your Lordships' House both in Committee and on Report. On this occasion, we are proposing a new amendment which seeks to deal with what we and everybody who has been talking to us about the Bill consider to be one of the worst defects of the Bill as drafted. I refer to the problem which arises when visitors come to this country to visit members of their family.
§ I do not need to repeat in detail the arguments that I made at an earlier stage about the inequality in treatment between visitors to this country from 1154 different parts of the world. Probably the most telling figures that I quoted on a previous occasion were, first, that 72 per cent. of visitors to this country come from what might be called the more developed countries —that is, the United States, Europe, Japan and the old Commonwealth countries—so the problem does not relate to the vast majority of visitors to this country. Those who come from the less developed countries, in particular from Africa, the Caribbean and the Indian sub-continent, are much more likely to be turned back at the point of entry than those who come from the white and developed countries. That is the crux of the matter. One in 2,000 United States visitors to this country is turned back at point of entry whereas the figure for those coming from Ghana or Bangladesh is one in seven.
§ It is not just that there is a huge disparity between one kind of visitor to this country and another: the disparity, if anything, should be the other way because those coming from the Caribbean and the Indian sub-continent, and, to a lesser extent I suppose from Africa, are much more likely to be wanting to come to this country, not as tourists, because few of them have the financial resources to do so, but to visit their families. The Government would not be departing from the intentions they express in putting forward this part of the Bill if they left the right of appeal for those people. It is not just the disparity at the point of entry that worries us. It is known throughout the country that it is largely black people who experience difficulty in reaching this country to visit their families.
The noble Baroness, Lady Flather, made a powerful speech on a related amendment on Report. This amendment is relatively modest. It may not be drafted perfectly, but we have done our best. We have given the Secretary of State the power to define what is meant by,
related by blood or marriage".
It is not a wrecking amendment. It does not damage the purport of the Bill. It will relieve the considerable and justified anxiety felt by a large number of people who live in this country, who are citizens of this country and who want their relatives from abroad to be able to visit them without running the risk that they run now and would run even more if there were no right of appeal against refusal of entry.
In case anyone thinks that it will be difficult for the Secretary of State to define,
related by blood or marriage
I refer to the Housing Act 1985. That contains adequate definitions which unfortunately I did not have when the amendment was being drafted. The definition which we would regard as satisfactory is a,
person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew, niece",
or spouse. We do not need to extend the definition to cover cousins, second cousins, or second cousins twice removed. There is no need to go to extremes although it would be desirable were the definition extended to cover godsons and goddaughters. Nevertheless, an adequate definition is available. It would be a gesture of humanity by the Government to agree to the amendment. I beg to move.
§ 4.15 p.m.
§ Lord Pitt of Hampstead
My Lords, I hope that the Minister will accept the amendment. I shall speak from a personal angle. I have two grandchildren who are Trinidad citizens and live in Trinidad. They visited me last year. Many Members will have seen them when they visited the House. Before they came they were told at the High Commission in Trinidad that they needed a letter from me inviting them here. I wrote the appropriate letter and invited them. I want your Lordships' to see the point. It never occurred to me that would happen. It is likely that those children could have come here and been sent back. That is the type of thing about which we are talking.
I read some of the cases reported in a brochure sent to me by the CAB. There was reference to close relatives who were refused entry to visit their families but who succeeded on appeal. If there were no appeals, those people would have been unable to visit their families. The amendment makes an exception for close relatives so that we do not have happening the type of thing that we have had in the past and so that people who come here genuinely to visit their families will be able to do so. Even if an immigration officer, as a result of some mistake he has made, decides to refuse them entry, they would have a right of appeal which would allow them to come. I hope that the Minister will see the matter in that way.
§ Lord Boyd-Carpenter
My Lords, I must congratulate the noble Lord, Lord McIntosh of Haringey, on one thing: his ingenuity when faced with the difficulty of defining,related by blood or marriageof seeking, as he does in Amendment No. 5, to transfer responsibility for setting out that definition to the Secretary of State. That is a most ingenious bit of buck passing. It is a small matter. The amendment proposes a difficult task for the immigration authorities. Let us suppose, as will often be the case, that the visitor (the migrant, the asylum seeker or whatever one likes to call him) is alleging—
§ Lord Tordoff
My Lords, perhaps the noble Lord will forgive me, I think that he referred inadvertently to the word "migrant". In the amendment we are talking about visitors.
§ Lord Boyd-Carpenter
My Lords, I did not inadvertently refer to "migrant". I tried to cover all the categories of people who will present themselves under the Bill. It may well be that someone who claims to be coming to visit his cousin or aunt by marriage is an intended migrant. I hope that the noble Lord will face up to that fact. That is one of the difficulties behind the amendment. I am grateful to him for bringing it out; otherwise I might have failed to do so.
If the asylum seeker—if that pleases the noble Lord—says, "Oh, I am coming to visit a blood relation", and that blood relation, as in many instances will be the case, is someone who came from his own country years ago, what evidence of the blood relationship will there be? How will it be proved? What is the unfortunate official to do when someone says, "Oh, but, Mrs So-and-so is my great aunt by marriage"? 1156 There is no evidence. It seems to me that the amendment will create a great deal of unnecessary difficulty. I hope therefore that the amendment will be rejected.
§ Lord Bonham-Carter
My Lords, I support the amendment. I must congratulate the noble Lord, Lord Boyd-Carpenter, on managing to insert into a speech about an amendment dealing with visitors, and appeals for visitors against refusal of entry, the whole matter of migration. We are not talking about migration. We are talking about visitors, and the right of visitors to appeal if entry is refused.
The burden of the amendment is a simple one. I should have thought that the amendment would appeal to the sentiments of a party which claims to believe in the family as an important source of social cohesion and is worried by the apparent destruction of the family under modern conditions. I hope that the amendments will appeal to the noble Earl, Lord Ferrers, and that we shall receive a positive response to an act which is not only wise and strengthens the cohesion of the family but which is an act of humanity.
§ Lord Hylton
My Lords, I support the two amendments. Perhaps I may quote a case reported by a CAB in East London. It is that of an elderly Pakistani woman who was refused entry clearance to visit her daughter and grandchildren in this country. She was refused a visa on the ground that the entry clearance officer was not satisfied that she would stay for the period as stated by her, despite the fact that she had made two previous visits and on both occasions had left within the appropriate period. The woman's appeal against the decision was successful. The Home Office offered no evidence at the appeal.
§ Lord Renton
My Lords, perhaps I may say with respect that some of the fears expressed by noble Lords are unreal but I shall deal with that in a moment. I wish to remind your Lordships that Clause 12, which amends the 1971 Act, is necessary because when so many people come here to obtain asylum they do not declare that fact but say that they are coming as visitors or to follow a course of study. However, even such people are protected if they have previously obtained a current entry certificate. The last line of the clause is most relevant.
In view of the passage of the Bill through both Houses up to this last stage in your Lordships' House we must assume that the Bill is needed. Therefore, we must bear in mind that the amendment would make a big and loosely defined exception. As was pointed put by my noble friend Lord Boyd-Carpenter, it is easy for someone to assert that he wishes to be with a great uncle. There is no evidence to prove it. It might be an easy case, relatively speaking, within the definition of blood or marriage. When one thinks of the large families which exist in some parts of the world and the ease with which someone might claim, bona fide or not, that he was related, however distantly, by blood or marriage the exception becomes big as well as being loosely defined.
I turn to the case put forward by the noble Lord, Lord Pitt, with obvious sincerity and feeling. I believe 1157 that his fears are unjustified because his grandchildren coming here as visitors to see him—not coming here first as visitors and later claiming asylum—would have no difficulty and would be able to obtain an entry clearance certificate—
§ Lord Pitt of Hampstead
My Lords, the position is that an immigration officer might decide that my grandchildren are not doing what they set out to do but are coming here because I want to keep them. He may therefore refuse them entry and they would have no appeal. The amendment merely gives a right of appeal so that someone of higher authority can look at the case. That is all.
§ Lord Renton
My Lords, if the noble Lord's grandchildren had an entrance certificate—and in their case there would be no problem in obtaining one —I believe that they would have no difficulty. There may be another way in which they could establish their right to come here. The noble Lord could vouch for them by meeting them at the airport, which would help very much.
Genuine visitors will have no fear under the clause. We must bear in mind what my noble friend Lord Ferrers said previously; that so many people come here under one pretext or another to stay temporarily as a student, a visitor or whatever and then claim asylum. That is what the Bill is about.
§ Lord Bonham-Carter
My Lords, the noble Lord repeatedly said that many people come here under false pretences. Can he qualify that in any way?
§ Lord Renton
My Lords, I was merely going on what was said earlier by my noble friend Lord Ferrers when he gave considerable statistical evidence. I shall not delay your Lordships by turning up the Second Reading debate, which I happen to have, and Hansard of another debate. I merely ask noble Lords to refresh their memories.
§ Lord Ackner
My Lords, whenever the clause comes up for debate there is an air of confusion about it. First, the suggestion that genuine visitors need have no fear if they are left without an appellate right has been shown to be totally wrong, because on appeal 1,500 genuine visitors were found wrongfully to have had their right of entry withheld. Secondly, we are not dealing with giving to a class of applicant something new, which is often thought to be the case. Under the Bill we are taking away not only a right of appeal but a right of appeal that has been established for 21 years.
The Government did not seek to take away that right when the Bill was before the House last year. There was no suggestion then that a mass of people were coming here under false pretences. In that Bill the Government did not seek to touch the right. The only reason why the issue has arisen now is because, under pressure, the Government have been forced to give appellate rights to asylum seekers. I do not believe that there has been any attempt to suppress the fact that the Government are simply saying, "We are using up so many resources in providing the right of appeal to 1158 asylum seekers that we must withdraw resources from the visitors and students". That is all that is being done.
The suggestion that we can rest confident that the system is so perfect and that no valid case has been refused has never been part of the Government's case. The Government's case is that the lists are bunged up and that they must do something about it. Visitors staying for six months are finding that it is 12 months or more before their cases are dealt with. Of course, the answer is to provide better and more efficient resources.
There is a legitimate expectation among such visitors that their right of appeal will continue; 21 years establishes that legitimate expectation. There is therefore a heavy onus on the Government to explain why they are removing that right. The amendment merely seeks, as we have tried to do time and again, to meet the Government by saying, "Very well, you have provided extra resources for the asylum seekers. You need to streamline the situation somehow and this is another offer to co-operate by saying that instead of all visitors and all students as heretofore having the right to appeal if they lose their application, that will be cut down to the visitors who are the subject matter of the amendment". That is the short summary of the situation.
§ 4.30 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, with this amendment the noble Lord, Lord McIntosh, seeks to revisit a subject which we have discussed in a variety of different ways ad nauseam.
My Lords, I am not sure what the noble Lord means. I am merely saying that the noble Lord invites us to revisit the subject. It is a subject which we have discussed on earlier occasions and on which the House has taken a vote. That does not prevent the noble Lord revisiting the subject today.
We must be clear that these amendments would preserve the right of appeal against refusal of entry clearance or leave to enter for people seeking to visit relatives in this country. The noble and learned Lord, Lord Ackner, says that we are taking away a right which has existed for 21 years and the Government should explain why they are doing that. I know that the noble and learned Lord does not like this provision but I shall not weary your Lordships by explaining the reason yet again because if I do it will be for about the third or even fourth time. That right is being taken away, but we are importing new procedures. We are taking away a procedure which allowed an appeal. However, that often took 12 months. We are importing a quicker, fairer and better procedure. If a person is turned down, he can re-apply for entry immediately. Therefore, the result is much more likely to bring forth the speedy answer which the applicant desires.
Your Lordships will no doubt remember that in Committee on 16th February, at col. 1040 of Hansard, I said that the Government recognised the legitimate 1159 interests of people settled in this country who will want to do all they can to facilitate visits by members of their family. I said that the Government had considered whether it would be an option to obtain a right of appeal for cases in which there is a close family member in this country. But we concluded that that would not be right for two reasons.
It is always dangerous to refer to individual cases but the noble Lord, Lord Pitt of Hampstead, referred to his grandson. Perhaps I may say to the noble Lord that his grandson does not require a visa, coming from where he does. The only reason that he is asked to produce a letter is to enable him to pass more quickly through the immigration formalities. That will be so if he can produce a letter from his grandfather saying that his grandfather is inviting him to come here. The noble Lord, Lord Pitt, said that the entry clearance officer could refuse entry and there would be no right of appeal. In theory, that could happen, but even if there was a right of appeal, which is what the noble Lord, Lord Pitt, seeks, he would still have to wait for 12 months. In the unfortunate circumstance put forward by the noble Lord, Lord Pitt, the individual could apply immediately with a new application. He would obviously make quite certain then that the entry clearance officer knew of his genuine rights.
I turn now to the two reasons why we believe that it would not be right to have that right of appeal in cases where there is a close family member in this country. The first —and I agree with my noble friend Lord Boyd-Carpenter—is that there would be no general agreement on who should be recognised as a close member of the family. I agree with my noble friend that it is a bit rough to leave it to the Secretary of State to determine that. Presumably, there would be fairly general agreement about parents, brothers and sisters, but beyond that there would be considerable doubt. The noble Lord, Lord McIntosh of Haringey, said that there was no reason to include other family members. But what happens when one thinks of uncles, aunts, first cousins, and cousins once or twice removed, relatives by marriage, in-laws and so on? There is no clear indication as to where the line should he drawn. Most extraordinarily, the noble Lord, Lord McIntosh, said that he would like godsons to be included. The noble Lord looks surprised. I was surprised when he said that. As far as I can see, godsons need not necessarily be blood relations.
Preserving rights of appeal only for those claiming to have close relatives here would introduce into visit applications all the difficult issues of establishing disputed relationships. It would be a recipe for dissatisfaction, particularly since the strength of the emotional ties between relatives is not necessarily governed just by how close or distant the blood relationship is. Many other factors may be involved; for example, cousins who have been brought up together are likely to feel closer than those who have not. None of the difficulties of framing a sensible, workable and acceptable exemption for family visitors is solved by putting the onus on the Secretary of State to define relationships in regulations instead of putting a definition in the primary legislation.
1160 The second reason for not making such an exemption is that, however important family visits are, it is by no means evident that the present system of appeals is really the best way of responding to the interests of sponsors. The delays in the system mean that a family event like a wedding or funeral may well have come and gone before the appeal is resolved. We believe that since many sponsors are really seeking to put fresh information forward to secure an early reconsideration of the decision they will find that the administrative measures which we have announced will be introduced serve their interests better.
I believe that to try to re-introduce a right of appeal for those people would re-introduce a system which your Lordships have agreed should not continue. It would produce its own complications. Therefore, I hope that the noble Lord, Lord McIntosh, will realise that it would be best not to introduce this right of appeal.
§ Lord McIntosh of Haringey
My Lords, one of the penalties of continuing to press for something which we consider to be of great importance is that the arguments on the other side become less rather than more convincing as time goes on. I have never heard such dross in argument as I have heard in the past half hour or so.
The definition of family is already included in the Immigration Rules. Those who apply for entry into this country on the grounds that they are visiting their family already have to show what is the family relationship and have to prove it. To extend that to be a criterion for the right of appeal introduces no new difficulties. There is nothing special about this; it is what happens now.
As regards the definition of a family, the noble Lords, Lord Boyd-Carpenter and Lord Renton, had great fun talking about great-aunts by marriage and great-uncles. When I introduced the amendment I indicated that there is at least one good precedent—and I am sure that there are many more—in the Housing Act 1985. There are perfectly good definitions of close relatives. There is no difficulty whatever in the Secretary of State looking at his own legislation or the Government's legislation and using that for the purpose of making a regulation which Parliament could then approve. If anybody is worried about second cousins once removed, as the Minister appears to be, that can be dealt with at that stage. I thought it fairer to say that, with mature consideration and with all the wisdom and advice which he has available to him, the Secretary of State should make a regulation which Parliament could consider.
I am sorry that the Minister does not like my half-flippant remarks about godsons and goddaughters. I can think of occasions when godsons and goddaughters would be welcome at family gatherings. I referred to that without seeking to include such a provision in the amendment. In fact, they are specifically excluded from the amendment as drafted.
Much more important is the suggestion by the noble Lord, Lord Renton, that fears are unjustified. I do not believe that the answers given to my noble friend Lord Pitt were in any way adequate. Of course if my noble friend writes a letter on House of Lords 1161 notepaper saying that his grandchildren are his grandchildren and should be admitted, they will be admitted. But if his name was Patel and not Pitt and if he did not have access to House of Lords notepaper and the letter came from Hackney instead of Hampstead, the grandchildren might have considerably greater difficulty in obtaining admission to this country. I do not think we can argue from specific cases of that kind.
My Lords, I interrupt the noble Lord because he is being most ungenerous to those who work the immigration system when he suggests that those who send their letters on House of Lords notepaper take precedence over those who send letters on ordinary notepaper. The noble Lord should know that the system works better than that.
§ Lord McIntosh of Haringey
My Lords, if the Minister believes that, quite frankly he will believe anything. The evidence I use to support my case is the fact that it was only a few years ago that Members of Parliament had their automatic right to intervene in port refusal cases taken away. When that right was taken away, the refusal rate shot up; in other words, immigration officers took advantage of the fact that they could not be hassled by MPs at the port of entry and increased the number of refusals. The same thing will happen if the right of appeal is taken away.
It is not simply a case of the right of appeal being important to provide a check on the actions of immigration officers—I am not being rude about immigration officers when I suggest that they may be fallible—but it is well known that when checks are taken away refusal rates shoot up. As the noble and learned Lord, Lord Ackner, said, it is well known that the appeals procedure has revealed a significant proportion of appeals which were justified and of refusals which were unjustified—1,500 out of approximately 9,000. In those circumstances, the arguments which have been put against this humane amendment which supports family values—I thought all noble Lords supported those values—are quite inadequate to persuade me that I ought to withdraw the amendment. I seek the opinion of the House.
§ 4.42 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided Contents, 109; Not-Contents, 125.1163
|Division No. 2|
|Ackner, L.||Bruce of Donington, L.|
|Acton, L.||Callaghan of Cardiff, L.|
|Addington, L.||Campbell of Eskan, L.|
|Airedale, L.||Carmichael of Kelvingrove, L.|
|Ardwick, L.||Carter, L.|
|Ashley of Stoke, L.||Cledwyn of Penrhos, L.|
|Aylestone, L.||Clinton-Davis, L.|
|Barnett, L.||Cocks of Hartcliffe, L.|
|Beaumont of Whitley, L.||Darcy (de Knayth), B.|
|Beloff, L.||David, B.|
|Biddulph, L.||Dean of Beswick, L.|
|Birk, B.||Desai, L.|
|Bonham-Carter, L.||Diamond, L.|
|Bottomley, L.||Donaldson of Kingsbridge, L.|
|Donoughue, L.||McCarthy, L.|
|Dormand of Easington, L.||McIntosh of Haringey, L.|
|Eatwell, L.||McNair, L.|
|Ennals, L.||Mallalieu, B.|
|Erroll, E.||Mayhew, L.|
|Ewing of Kirkford, L.||Merlyn-Rees, L.|
|Falkender, B.||Milner of Leeds, L.|
|Falkland, V.||Molloy, L.|
|Fisher of Rednal, B.||Monkswell, L.|
|Gallacher, L.||Morris of Castle Morris, L.|
|Gladwyn, L.||Morris of Kenwood, L.|
|Graham of Edmonton, L. [Teller.]||Mulley, L.|
|Gregson, L.||Ogmore, L.|
|Hampton, L.||Pitt of Hampstead, L.|
|Hamwee, B.||Plant of Highfield, L.|
|Hanworth, V.||Prys-Davies, L.|
|Harris of Greenwich, L.||Richard, L.|
|Healey, L.||Robertson of Oakridge, L.|
|Hilton of Eggardon, B.||Rochester, L.|
|Hirshfield, L.||Russell, E.|
|Hollick, L.||Sainsbury, L.|
|Hollis of Heigham, B.||Saltoun of Abernethy, Ly.|
|Hughes, L.||Seear, B.|
|Hylton, L.||Sefton of Garston, L.|
|Jacques, L.||Serota, B.|
|Jakobovits, L.||Shepherd, L.|
|Jay, L.||Stallard, L.|
|Jay of Paddington, B.||Stedman, B.|
|Jeger, B.||Stoddart of Swindon, L.|
|John-Mackie, L.||Strabolgi, L.|
|Judd, L.||Thomson of Monifieth, L.|
|Kagan, L.||Tordoff, L. [Teller.]|
|Kennet, L.||Turner of Camden, B.|
|Kilbracken, L.||Varley, L.|
|Kirkhill, L.||Wallace of Coslany, L.|
|Lane, L.||Wedderburn of Charlton, L.|
|Listowel, E.||White, B.|
|Llewelyn-Davies of Hastoe, B.||Williams of Elvel, L.|
|Longford, E.||Winchilsea and Nottingham, E.|
|Lovell-Davis, L.||Young of Dartington, L.|
|Aberdare, L.||Cumberlege, B.|
|Abinger, L.||Davidson, V.|
|Aldington, L.||Denham, L.|
|Allenby of Megiddo, V.||Denton of Wakefield, B.|
|Annaly, L.||Elles, B.|
|Arran, E.||Elliot of Harwood, B.|
|Astor, V.||Elphinstone, L.|
|Astor of Hever, L.||Elton, L.|
|Balfour of Inchrye, L.||Ferrers, E.|
|Barber, L.||Finsberg, L.|
|Belhaven and Stenton, L.||Fraser of Carmyllie, L.|
|Bessborough, E.||Gainford, L.|
|Birdwood, L.||Geddes, L.|
|Blatch, B.||Gisborough, L.|
|Boardman, L.||Goschen, V.|
|Boyd-Carpenter, L.||Gridley, L.|
|Brabazon of Tara, L.||Grimthorpe, L.|
|Braine of Wheatley, L.||Hailsham of Saint Marylebone, L.|
|Brougham and Vaux, L.|
|Butterworth, L.||Harding of Petherton, L.|
|Cadman, L.||Harrowby, E.|
|Caithness, E.||Hayhoe, L.|
|Campbell of Alloway, L.||Henderson of Brompton, L.|
|Campbell of Croy, L.||Henley, L.|
|Carnegy of Lour, B.||Hesketh, L. [Teller.]|
|Carr of Hadley, L.||HolmPatrick, L.|
|Chalker of Wallasey, B.||Hood, V.|
|Clanwilliam, E.||Howe, E.|
|Clark of Kempston, L.||Hylton-Foster, B.|
|Coleraine, L.||Ironside, L.|
|Colnbrook, L.||Killearn, L.|
|Colville of Culross, V.||Lauderdale, E.|
|Constantine of Stanmore, L.||Leigh, L.|
|Cranborne, V.||Lindsay, E.|
|Crathorne, L.||Long, V.|
|Cross, V.||Lyell, L.|
|Cullen of Ashbourne, L.||Mackay of Ardbrecknish, L.|
|Mackay of Clashfern, L.||Renton, L.|
|Macleod of Borve, B.||Renwick, L.|
|Mancroft, L.||Rippon of Hexham, L.|
|Marlesford, L.||Rodger of Earlsferry, L.|
|Mersey, V.||Romney, E.|
|Milverton, L.||St. Davids, V.|
|Monteagle of Brandon, L.||St. John of Fawsley, L.|
|Mottistone, L.||Sandys, L.|
|Mountevans, L.||Skelmersdale, L.|
|Mowbray and Stourton, L.||Soulsby of Swaffham Prior, L.|
|Munster, E.||Strange, B.|
|Murton of Lindisfarne, L.||Strathclyde, L.|
|Nelson, E.||Strathmore and Kinghorne, E. [Teller.]|
|Nelson of Stafford, L.|
|Norfolk, D.||Sudeley, L.|
|Onslow, E.||Suffield, L.|
|Orkney, E.||Thomas of Gwydir, L.|
|Orr-Ewing, L.||Trefgarne, L.|
|Pearson of Rannoch, L.||Trumpington, B.|
|Pender, L.||Ullswater, V.|
|Platt of Writtle, B.||Vaux of Harrowden, L.|
|Plummer of St. Marylebone, L.||Vivian, L.|
|Prentice, L.||Wakeham, L.|
|Quinton, L.||Westbury, L.|
|Rankeillour, L.||Wise, L.|
|Reay, L.||Wolfson, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.50 p.m.
§ Lord Bonham-Carter moved Amendment No. 4:
§ Page 8, line 35, at end insert ("where the entry clearance officer or immigration officer, as the case may be, certifies that the application to enter is without foundation,").
§ The noble Lord said: My Lords, the amendment provides a right of appeal unless the application is classified as being without foundation. As we said in connection with the previous amendment and also on earlier occasions, the Bill is based on the principle that, rather than admit a few people who have every right to come here or think that they can come in, it is better to keep the whole lot out in case a few people who do not have that right gain entry. That is a principle which is deeply uncivilised.
§ By the same token, by limiting the right to appeal the Bill offends against the principle of civilised decision-making that there should be a check against abuse. That was eloquently explained by the noble and learned Lord, Lord Ackner. In this case, as the noble and learned Lord pointed out, the abuse occurs in the decisions of officials who refuse entry to visitors. As the record of the Immigration Appeal Tribunal makes abundantly clear, such decisions have been found to be significantly wrong in the past. That is likely to occur more frequently in the future if the right to appeal, which acts as a brake on quick and unjust decision-making, is removed.
§ Surely the Government, even if they do not accept those arguments, must accept that some refusals of entry are based on evidence which is more clearcut and obvious than that in other cases, where it is more shady. The immigration officer who makes the classification is aware of the spectrum of decisions; some self evident, others more dubious. All we ask is that that practice should be recognised.
§ Immigration officers classify people under Code 5N, which means a genuine visitor, or Code 3, which means a doubtful visitor, one the officers are not sure about but about whom they have insufficient evidence 1164 to refuse entry. Just as in allowing people to enter some decisions may be clearcut and self-evident and some doubtful, so in keeping people out there are decisions which are clear and self-evident and others which are more dubious. Those which are clear and self-evident are said to be without foundation. We say that there are a great many more dubious refusals of entry and that the people who fall into that category, who could be coded, should have the right of appeal because of the dubiety of the decision which has been taken.
§ This is a very modest amendment, but it attempts to give those people who, as we know from the past, have been wrongly refused entry the right to appeal so that that injustice can be rectified. I beg to move.
§ Lord Clinton-Davis
My Lords, I support the observations of the noble Lord, Lord Bonham-Carter, whom on another occasion I mistook for the noble Lord, Lord Boyd-Carpenter. I am sure that in the future I shall rectify that with another slip but the other way round.
The amendment is an attempt to mitigate a mischief on which the Government insist. Its acceptance would demonstrate the Government's bona fides on this issue. I feel very depressed and indignant about the way in which the Government have behaved. As one who has had a great deal of involvement with questions of refugees, asylum seekers and immigration law over many years, I find what the Government are doing irresponsible, as the noble and learned Lord, Lord Ackner, said earlier. No words now—particularly if the noble Earl repeats the pathetic arguments which he iterated previously—will cause me to come to any other conclusion. He may well say that that does not worry the Government and that I can think what I like. However, those are not only my sentiments. I can assure the noble Earl that they are the sentiments of virtually everyone concerned with the practice of law in this field and having to deal with people who are affected by the legislation. I believe that the Government will yet come to rue their action. They are not introducing this measure for the sake of justice. It is very clear that justice is the last thing in the world that they have in mind. They are doing so in the name of economy.
This is a very modest amendment. We have put our name to it because the Government are so intransigent and so set on injustice. I support what the noble Lord said.
§ Lord Renton
My Lords, I found it very difficult to follow the argument of the noble Lord, Lord Bonham-Carter. I listened as carefully as I could. I think I see the purpose of his amendment, from what the noble Lord said, but on examining it and its place in the clause at the end of line 35 I find it very difficult to understand how it would work in practice.
In the first place we have a reference to "the application". It is the first time that that expression has been used in this clause. Presumably it means an application for leave to land in this country and to stay here for some time. If I am wrong about that of course I shall give way to be corrected but that is what I assume.
1165 The other aspect which has puzzled me is the expression "without foundation". On what ground has the immigration officer or the entry clearance officer to decide that the application to enter is without foundation? If he comes to the conclusion that although otherwise genuine it is with the intention of entering the country on a temporary basis and then claiming asylum, would that be without foundation? I am not sure what the noble Lord has in mind. Stated merely in terms of "to enter … without foundation" the amendment raises all kinds of possibilities but one does not know which are intended to apply. In the interests of clear legislation, the people who are affected by it and the people who have to enforce it, we have to make these things clear.
§ Lord Bonham-Carter
My Lords, I am sorry if the noble Lord finds the term "without foundation" so difficult to interpret. We used it because we thought that it might appeal to the Government, who already treat asylum seekers differently if their claims are, in the Government's own words, "without foundation". We have simply taken a phrase which has been used by the Government in relation to asylum seekers and transferred it into the amendment.
§ 5 p.m.
§ Lord Renton
My Lords, I will listen with interest to what my noble friend Lord Ferrers has to say about whether that argument appeals to him. Whether or not it appeals to him, the legislation must be in clear terms. I have some experience of this subject because years ago I had the responsibility of helping to pilot the Commonwealth Immigrants Act 1962 and I was responsible for the Immigration Service for three and a half years. In the context of the clause that expression could mean many things, but we are not told what it is intended to mean.
§ Lord Clinton-Davis
My Lords, it is a pity that the noble Lord, Lord Renton, had not woken up to the point before. This is a matter about which we have expressed reservations on earlier occasions.
In Schedule 2, paragraph 4, the heading is "Special appeal procedures for claims without foundation". At line 16 the noble Lord will see the words:to be removed from the United Kingdom is without foundation".Those are not the only places where those words have arisen. The burden of the Government's argument throughout has been that they have been necessary. It is quite wrong to cavil at the observations of the noble Lord, Lord Bonham-Carter, who is simply utilising a phrase which is consistent with everything that the Government have insisted upon.
§ Lord Renton
My Lords, the noble Lord has unwittingly reinforced my argument. Here we are told exactly what "without foundation" means and the context in which those words are to apply. The first example is very clear:contrary to the United Kingdom's obligations under the Convention for him to be removed from the United Kingdom is without foundation".1166 Therefore, we know exactly what in law and in practice the expression "without foundation" means.
However, in the context of the amendment those words could mean so many different things. Presumably—although it is an assumption that it is unsafe to make—it means where the immigration officer has a feeling that he is being asked to give temporary entry but with a view to ultimate asylum. If that is "without foundation", that may be the case.
I shall be very interested to hear what my noble friend Lord Ferrers has to say. I shall not take up further time.
§ Lord McIntosh of Haringey
My Lords, if the noble Lord, Lord Renton, were to confine his remarks to saying that there could be a technical defect in the sense that the definition of "without foundation" in the Bill has not been explicitly included in the amendment, he might have a point. If he is going so far as to say that it is unclear what "without foundation" means, he has not only failed to read the Bill but has failed to listen to the debates on the Bill.
In Schedule 2, paragraph 4(3), there is a complete definition of the phrase "without foundation":For the purposes of this paragraph a claim is without foundation if (and only if)—That is what the words mean in the amendment. If the Government accept the very effective arguments of the noble Lord, Lord Bonham-Carter, and my noble friend Lord Clinton-Davis, when the matter comes to the other place they are perfectly capable of ensuring that that definition also applies to the amendment.
- (a) it does not raise any issue as to the United Kingdom's obligations under the Convention; or
- (b) it is otherwise frivolous or vexatious".
§ Lord Renton
My Lords, we must get the matter right. I know that this is not Committee stage but I am anxious to help. In the second schedule in the two passages that have been quoted, the expression "without foundation" is used in relation to specific circumstances. In the amendment in relation to Clause 12 it is used generally. That is a different situation.
§ Lord McIntosh of Haringey
My Lords, I had not sat down, and the only basis on which the noble Lord could have intervened was that I had not sat down. There is no distinction in principle. Once a definition is made it can apply to specific cases and to general cases.
§ Lord Hylton
My Lords, may I offer an olive branch? I understand the words "without foundation" to mean being factually incorrect and in other cases frivolous or vexatious.
My Lords, like the last amendment, this one tries to keep the appeals system going in some form. The noble Lords, Lord Bonham-Carter and Lord Clinton-Davis, stated that the amendment was a modest one. I am always fascinated by the noble Lords' idea of modesty. I consider this to be a wrecking amendment. I am glad that the noble Lord finds the matter to be so humorous. The smile will be taken off his face in a few minutes' time when he 1167 realises that it is a wrecking amendment. If the noble Lord did not mean it to be a wrecking amendment, he does not know what he is doing.
The amendment would provide that a person who wishes to come here as a visitor, a short-term student or a prospective student should be entitled to appeal unless the entry clearance officer or immigration officer certifies the application to be without foundation. Everyone can appeal under the amendment unless the immigration officer has certified the application to be without foundation. No immigration officer would ever certify that a person coming here had no foundation to come here. Therefore, everyone would have a right of appeal.
The noble Lord, Lord McIntosh, stated that the noble Lord, Lord Renton, should have said that it is a technical amendment. It is nothing to do with being a technical amendment; it is a wrecking amendment. It means that everybody would have a right of appeal because no immigration officer would ever say that a person coming here had no foundation to come here. When a person applies to come to this country as a visitor, he may be turned down for a variety of reasons but never because his application is without foundation.
The noble Lord, Lord Clinton-Davis, stated that he did not wish to hear any pathetic arguments from me. He will not get any pathetic ones, but perhaps he would like a blockbuster instead. The noble Lords have borrowed the phrase "without foundation" from the second schedule to the Bill, where it relates, as my noble friend Lord Renton correctly stated, solely to asylum cases. It is defined in the second schedule. The words "without foundation" are to be found in Schedule 2, paragraph 4. They are defined in that paragraph and apply only to asylum cases. They make no sense in relation to visitors or students.
There is no concept in the Immigration Act 1971 or the Immigration Rules of an application for a person to come here as a visitor or as a student being certified as without foundation. There could be no sensible criteria for considering a visitor or student application to be without foundation. Decisions as to whether to allow a person to enter this country or to give entry clearance are based on whether the applicant satisfies the immigration officer or the entry clearance officer that he meets the relevant requirements of the rules; for example, adequate funds, not being a burden on the state or an intention to leave at the end of the visit. As applications that are covered by Clause 12 could never be certified to be without foundation, the effect of the amendment, as I suspect the noble Lords are fully aware, would be to preserve the existing rights of appeal in all cases. In other words, the amendment of the noble Lord, Lord Clinton-Davis, is a wrecking amendment, and that is why I suggest to noble Lords that it should not be included in the Bill.
§ Lord Bonham-Carter
My Lords, it is not the amendment of the noble Lord, Lord Clinton-Davis. I plead guilty.
I should like to apologise to the noble Lord, Lord Bonham-Carter. It was he as well as the noble Lord, Lord Clinton-Davis, who did not know what he was doing.
§ Lord Bonham-Carter
My Lords, we are never quite sure whether the noble Earl knows what he is saying. However, I think that there is a germ of relevance in what he stated, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 5 not moved.]
§ Lord Finsberg moved Amendment No. 6:
Page 8, line 36, at end insert:
("(3AA) The Secretary of State shall appoint a person, not being an officer of his, to monitor, in such manner as the Secretary of State may determine, refusals of entry clearance in cases where there is, by virtue of subsection (3A) above, no right of appeal; and the person so appointed shall make an annual report on the discharge of his functions to the Secretary of State who shall lay a copy of it before each House of Parliament." ").
§ The noble Lord said: My Lords, with the permission of the House, I wish to move the amendment standing in the name of my noble friend Lady Flather. This was an issue on which I spoke during an earlier stage and I co-operated with her in suggesting that it would be helpful to try to word an amendment to cover what was needed. Perhaps I may remind noble Lords that what was needed was the possibility of a random check on decisions. There would be no question of everything being looked at, no question of a formal appeal, just a random check. I remember being told about it by the late Sir Gurney Braithwaite, who was a Member of another place and a Minister with responsibility for transport matters at one time. Much was being done in his name, as is being done here. He thought it would be a useful discipline for it to be known that he would ask for a pile of files to be put on his desk and he would pick one or two to see that there was nothing in them going against the guidelines. That is what I asked for when I supported my noble friend Lady Flather at an earlier stage.
§ The wording that has now been produced covers the point and I hope that it will meet with the approval of my noble friend Lord Ferrers. In the absence of my noble friend Lady Flather, who had intended to be here, I am happy to move the amendment.
§ 5.15 p.m.
§ Lord Clinton-Davis
My Lords, I wish to pay tribute to the noble Baroness, who is a prominent member of the British Refugee Council and presides over one of its important committees. I am sure that she would have wished to have made out the case again today for the amendment, but the task was nobly undertaken by the noble Lord, Lord Finsberg.
The amendment received considerable support at the Committee stage. The Minister was reasonably positive when responding to it. At Report stage (at col. 794 of Hansard for 4th March) he indicated that he would look carefully at whether it would he:practical and helpful to reinforce the measures with an independent review of the kind which my noble friend has in 1169 mind. I shall certainly look further at the principle of introducing an independent element into the quality control of entry clearance decisions".The burden of the argument was made by the noble Baroness earlier on.
I think that we on this side say, Chevalier-like, "Thank heaven for little amendments". This is a modest amendment which is nevertheless quite important in the light of everything that the Government have done. It is important to maintain quality control in that area.
The noble Baroness argued that the kind of procedure that she had in mind would have a number of advantages. There would be a check on how entry clearance officers performed their duties, and she suggested a random audit of refusals. If, as I understand the position, all the birds in the aviary have left messages all over the place that the Government are likely to accept the amendment, at least in principle, I wish to know how they propose to interpret that procedure in practice. The noble Baroness mentioned a random audit of 5 per cent. or 10 per cent. We should like to know more from the Government about their view on that, if they are to accept the amendment. How would the audit be undertaken? Who would undertake it? Would there be a real measure of independence in terms of the person undertaking the audit? All those are highly relevant matters and we shall listen with interest, at least on this occasion, to what the Minister has to say.
Then the noble Baroness argued for the need for greater consistency among the many posts overseas and here that are charged with the duties. That was an important argument. The fact that there will be invigilation or scrutiny of a kind will become known to each entry clearance officer, and it should help to promote an awareness that any unfairness that is practised may well come to the public notice. It depends of course on how effective the scrutiny is and how effective laying a report to Parliament will be.
More important, or at least just as important, is that, if an injustice comes to light as a result of practices engaged in, although it is unlikely to be of much benefit to the people who have suffered the injustice, the Secretary of State should be helped to adjust the rules and take action which might avert such problems in the future.
While I congratulate the noble Baroness in an unqualified manner on the arguments that she adduced, and, we hope, in persuading the Government on one of those rare occasions to take a sensible action, it would have been much better overall for the Government not to have extinguished the right of appeal in so many of the areas about which we have talked and where we have failed, not in argument and reasoning but simply on the votes. It would have been better for the Government not to have taken that serious step because in our judgment a fundamental right has been extinguished. It would be better than nothing if the Government were to say, "We are prepared to go along with the idea". If I may say so, it was an inventive and worthwhile idea and I applaud the noble Baroness for doing what she did.
§ Baroness Flather
My Lords, first, I apologise for not being here at the right time. It is entirely my loss, I assure the House. I feel sad about it, but I am grateful to my noble friend Lord Finsberg for moving the amendment in my name on the Marshalled List. I do not know whether it is worth making the speech which I had prepared because most of what I was going to say has been covered by the noble Lord, Lord Clinton-Davis. However, since I have written something down, I should like to read it.
As I said earlier and as has been repeated, at every stage of the Bill I too have been deeply concerned about the removal of the right of appeal. This is a right, as we have heard so often, which has been enshrined in legislation for over 21 years. I suppose that 21 years is not an extraordinarily long time, but it is long enough for many generations of people to accept it as something which will remain. To take away a right which has been given for that length of time is bound to cause widespread anxiety in all quarters. Noble Lords are only too well aware of that from the enormous amount of briefing material that they have all received.
The anxiety is heightened by the feeling that, once the possibility of appeals is removed, there will be no effective mechanism for keeping a check on the decisions of entry clearance officers. After all, how else can there be a check on those decisions other than by way of appeal? These are decisions which affect many people in many different ways and we need to make sure that they are fair and consistent and within the criteria which are laid down by the Immigration Rules.
I do not believe that it is sufficient to say that there will be internal administrative safeguards, as the Minister told us on the last occasion, just to make sure that the ECOs are able to discharge their duties fairly and properly. What is needed is some form of public accountability so that it can be demonstrated that the system is being monitored independently and the results of the process are made available to Parliament. That is the very least that is necessary to reassure the public and to provide a badly needed safeguard in return for the removal of a most important and fundamental right.
I emphasise once again that the amendment is not intended as a way of back-door appeal. It does not involve the applicant. It is merely a review. It will not have anything to do with the disappointed person who may wish to have his or her case reviewed.
I see the amendment not only as benefiting the long-term interests of applicants but also as providing the Government with an opportunity to demonstrate that the quality and nature of the decisions, which have substantial effect, are kept under constant review. I am sure that the entry clearance officers themselves will welcome a provision which will help them maintain the very highest standards in their own decision-making. Without any form of independent monitoring process they could find themselves open to unjustified criticism or suspicion. I urge my noble friend the Minster to accept the amendment. Allowing the system to be kept under constant review will go some way towards allaying the very justifiable fears 1171 which have been generated. It will be effective only if enshrined in primary legislation. It needs to be on the face of the Bill if it is to have the effect that I hope it will have.
§ Lord Ackner
My Lords, I appreciated at a very early stage in the noble Earl's reply to the amendment last Thursday that he had been deeply impressed by it, because he started by blaming me for its drafting when I had nothing to do with it. Perhaps now the boot has moved a little nearer the other foot. I have a slight (respectful) inquiry about the drafting which has been used. There is a reference to appointing:a person, not being an officer of his".Does that mean it could be another civil servant—in other words, an officer of another department, and therefore not "an officer of his"? Or are we directing our attention at someone of complete independence? I hope it is the latter. On the last occasion the noble Earl said that he would:look carefully at whether it would be practical and helpful to reinforce the measures with an independent review of the kind which my noble friend has in mind". [Official Report, 4/3/93; col. 794.]About eight sentences further down, he said:I shall certainly look further at the principle of introducing an independent element into the quality control of entry clearance decisions".I therefore ask for clarification and hope for a reassurance that that form of spot check—which is what I believe it amounts to—will be made by someone who can be looked upon, not only in fact but by everybody concerned, as being of a wholly independent status.
§ Lord McIntosh of Haringey
My Lords, I hate to disappoint the noble and learned Lord, but I believe that he will find that in legislation there is only one Secretary of State. Therefore "an officer of his" applies to all civil servants. Would that there were in reality only one Secretary of State!
§ Lord Tordoff
My Lords, we were all greatly moved by the interventions of the noble Baroness at earlier stages, and particularly on one occasion when I thought she came close to being angry. When I discussed it with her outside the Chamber she assured me that she did not. She certainly spoke with great passion on one occasion and what she said was extremely moving. Therefore it is welcome to see that an amendment is before the House today and, as has been said, the whispers are that the Government will accept the amendment. I certainly hope so. It is extremely modest and is no real substitute for a proper form of appeal.
I should like to mention two points which worry me slightly. The first is that this system will be of no use at all to the individual who has been turned away. It will be very much post hoc. It will bring no great comfort to the person who has been returned to his native heath to find at some later stage that a piece of paper is laid in front of Parliament which suggests that a mistake was made. But I take the point made by the noble Lord, Lord Clinton-Davis, that people at the point of entry will know that there is somebody 1172 watching and there is some chance of the mistake being brought to light. That is a consideration that we should not overlook.
Another more worrying point which I should like the noble Earl, Lord Ferrers, to answer if he can, relates to the effect of this on the possibility of judicial review. I am sorry that I was not able to speak before the noble and learned Lord, as he might have set our minds at rest. Its seems to some of us that there is a real danger that, if this procedure is put in place, it may make a challenge by way of judicial review more difficult for the individual person who is affected.
§ Lord Monson
My Lords, unlike many of my noble friends, I have in general supported the Government over Clause 12. However, I believe that this amendment is extremely reasonable and I hope that the Government will accept it. If by any chance they do not, I shall gladly support the noble Baroness in the Division Lobby.
My Lords, perhaps I may say just one word of caution to the noble Lord, Lord Tordoff. He said that this was a modest amendment. If he wishes to incline one towards an amendment, he may need to be more careful in using the word "modest". His noble friend used the word "modest" on the last amendment when in fact it was a wrecking one. When the noble Lord says that this amendment is modest, I begin to think that perhaps I had better look a little more carefully at the wording.
The Government have always been aware of the concern which has been expressed over the removal of the right of appeal for those who have applied to come to this country for short periods of time. For reasons which I would not wish to rehearse again, the Government have decided—and Parliament has approved—that the lengthy appeal procedure should go. In order to address the concerns which were expressed both in another place and in your Lordships' House, we are instituting changed—and, we think, better—procedures which will help to ensure the quality of initial decision-making while allowing a speedier response to any new information which may emerge. However, I am well aware that some of your Lordships have felt uneasy that the system would not be open to any form of independent oversight and that, as a result, it might result in inconsistency of application.
It has always been the intention of the Government that this system should be fair and consistent and that it should be properly controlled. We intend to make sure that that will happen. This is something which we would do as a natural administrative process—but I realise that, despite that, some of your Lordships would still feel a greater sense of contentment if there were some further protection set out on the face of the Bill.
We have given the matter a great deal of thought and I can tell my noble friend Lady Flather and my noble friend Lord Finsberg—who, fortunately for her, moved the amendment in her absence and did not allow it to slip away inadvertently —that the Government are content to accept the persuasive case for the introduction of a periodic review of a sample 1173 of entry clearance cases by an independent person in order to ensure that fair and consistent standards of decision-making are maintained.
I am bound to say that the generosity of the noble Lord, Lord Clinton-Davis, never ceases to amaze me. He said: "Well, this amendment is better than nothing. It is a small amendment. It seems that the Government may have listened for once". If the Government do not listen, the noble Lord gives us the most appalling stick, and if the Government do listen, he ridicules us. It is difficult to satisfy the noble Lord.
§ Lord Clinton-Davis
My Lords, I had not intended to ridicule the Government. Sometimes one is forced to ridicule their pathetic arguments, but that is another matter. In fact, I do not believe that the issue raised by the amendment goes to the heart of the matter. Nonetheless I welcome it in an unqualified way, as I indicated. Now the Minister is being ungenerous, uncharacteristically so, of course.
My Lords, I am delighted to know that the noble Lord welcomes the amendment without reservation. That is most encouraging. Once again we run down the same track together. That is a good thing.
I should make clear what we are doing. We are not contemplating some form of alternative appeals system. This will not be a procedure for applicants or sponsors to seek to have the decision in an individual case overturned. It will instead be a further check on the standards which are being applied to decisions in entry clearance posts. My noble friend Lady Flather quite aptly described the procedure which she wishes to introduce as an "audit". What we envisage is a periodic review, by an independent person who has been appointed for the purpose, of a sample of cases where entry clearance has been refused. The "auditor", if I may for the moment inappropriately so describe him or her, would be able to choose which cases he or she wanted to examine.
That monitoring would be in addition to the administrative measures which we have already announced, including the daily review of refusals by entry clearance managers. There are matters of detail which still have to be worked out, but I can give an assurance that a scheme will be introduced which will accord with my noble friend's proposal: namely, that the review should be conducted at regular periods; that the person who is appointed to conduct the review should be—and should be seen to be—independent of the Home Office or the Foreign and Commonwealth Office; that entry clearance officers and managers would not know in advance which of their cases were to be examined; and that the results of the review should be made public. That, I think—and I hope—will go some way towards assuaging the fears which have been expressed by some of your Lordships that the removal of rights of appeal will lead to arbitrary decision-making.
The noble Lord, Lord Clinton-Davis, asked me to dot all the "i"s and cross all the "t"s.
§ 5.30 p.m.
§ Baroness Seear
My Lords, before the noble Earl sits down—on this occasion before he has sat down, which is unusual—or before he proceeds with his remarks, perhaps I could raise one point. I do not wish to give the impression that I have a nasty, suspicious mind, but who will pick the sample? It is important to know who will select the cases to be looked at.
My Lords, that is up to the auditor, who will be given terms of reference by the Secretary of State. I cannot go further than that at the moment. My understanding and thinking are that it is likely to be the auditor. For instance, he will say, "I want to see a certain number of cases from such and such a post", and he will probably itemise them as, say, numbers 1 to 15, or whatever it may be. The noble Baroness does not have a suspicious mind; she merely has a credulous mind. She will understand, as the noble Lord, Lord Clinton-Davis, will understand, that a great deal of work has yet to be done to work out the details of this provision. We spent most of our time trying to sort out the principle in a way that would be acceptable on the face of the Bill.
The noble Lord, Lord Tordoff, asked whether it would affect judicial review. The answer is that it will not. All it will do is test a sample of the cases to ensure that the principles by which the system works are being applied universally correctly.
The noble and learned Lord, Lord Ackner, asked whether the Secretary of State would appoint somebody who is a civil servant as the amendment refers to the Secretary of State appointing a person:not being an officer of his".I enjoyed seeing the noble Lord, Lord McIntosh of Haringey, instruct the noble and learned Lord on this matter. The noble Lord, Lord McIntosh, was quite right. The Secretary of State is an all-embracing person. He covers every Secretary of State. Therefore, the answer to the noble and learned Lord's question is that he will not be a civil servant.
As my noble friend Lady Flather knows, we were not altogether persuaded that it is necessary to put a statutory requirement for such a monitoring process on the face of the Bill. This kind of review is essentially an aid to those who are responsible for managing the system to ensure that consistent standards are maintained.
Managerial matters of that kind are not usually put into primary legislation. But as your Lordships have felt so strongly that some kind of provision in the Bill such as this would provide reassurance to the public about the Government's intentions, I am entirely content to advise your Lordships to accept the amendment, and also Amendment No. 7 which is consequential.
My Lords, as my noble friend Lord Finsberg was the person who moved the amendment, it would be right for him to reply. I thought that my noble friend Lady Flather could make a speech if she had the leave of the House so to do, but apparently I 1175 am wrong. It might be more suitable if my noble friend Lady Flather were to make her remarks on the next amendment. Then we would keep ourselves in order.
§ Lord Finsberg
My Lords, I thank my noble friend for his broadminded attitude. He clarified what I did not think needed clarification; namely, that every Minister is a Minister. Therefore the amendment seems to be ideal in the circumstances in which we are debating it. I welcome it very much. I know that my noble friend Lady Flather welcomes it also.
§ On Question, amendment agreed to.
§ Clause 13 [Refusals which are mandatory under immigration rules]:
§ Baroness Flather moved Amendment No. 7:
§ Page 8, line 37, leave out ("(3A)") and insert ("(3AA)").
§ The noble Baroness said: My Lords, I shall move the amendment standing in my name but I cannot speak fully to it because I am not sure what it means. If it is appropriate I shall make one or two comments as a response to my noble friend the Minister. First, I must say how grateful I am to him. I know that a great deal of work went on behind the scenes. Certainly I have spoken to many people trying to persuade them that this is an important provision to have on the face of the Bill. I am truly grateful that the Government have taken it on board. I am quite sure that they will not regret it. In fact it will give them an opportunity to be able to reassure people and justify the fact that they have removed the right of appeal much more easily than they would have been able to do otherwise.
§ I hope that this will be a successful way of watching and I am sure your Lordships will keep a watching brief when the first reports start to appear before Parliament. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 2 [Appeals to special adjudicator: supplementary]:
§ Earl Ferrers moved Amendment No. 8:
Page 14, line 19, at end insert:
. A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (4) of section 10 of this Act unless, before the time of the refusal, variation, decision or directions (as the case may be), he has made a claim for asylum.").
§ The noble Earl said: My Lords, this amendment is a technical one. It is intended to make quite clear that a person may bring an appeal on asylum grounds only if he has already made a claim for asylum. That seems so axiomatic that it might be for the convenience of your Lordships if I were to leave the matter there. I beg to move.
§ Lord McIntosh of Haringey
My Lords, it is by no means axiomatic. This is a quite complicated amendment which I suggest to the House deserved a certain amount of introduction. It is no good just saying that it is a technical amendment. The Government are under an obligation to explain what it means. I assume that the Minister has a speech prepared in order to introduce and explain the amendment. I wonder whether it would be for the convenience of the House if I suggest to him that he might intervene in my speech, since he has not taken 1176 the earlier opportunity, in order to explain what the amendment means and tell us its implications. Then we can debate it properly.
My Lords, I do not know whether I can intervene in the noble Lord's speech and make another speech of my own. But if the noble Lord would be kind enough to complete his speech, perhaps with the leave of the House I could make a second speech.
§ Lord McIntosh of Haringey
But then, my Lords, we cannot respond to it. The Government cannot introduce amendments at Third Reading in the second House of Parliament and tell us that those amendments are technical when we have very good reason to suppose that they are not technical and then expect the House to debate them without having an opportunity to respond to the arguments. I suggest that it is quite improper for the Minister to seek to move an amendment of this kind in that way.
My Lords, perhaps I can help the noble Lord. He should not get himself so worked up about this. I was trying to be helpful. I was suggesting that, if the noble Lord would be kind enough to finish his speech, I will, with the leave of the House, make a second speech. I am sure that the House will approve of the noble Lord, Lord McIntosh, also making a second speech.
§ Lord McIntosh of Haringey
My Lords, I must say that it is an extraordinary way to behave. The amendment may be entirely technical, but only under restricted conditions. As it stands, it is possible —I put it no higher than that as I have no evidence of what the Government intend—that the effect would be to nullify many of the assurances given to Parliament, not just to this House but also to another place, as the Bill has been progressing.
The Government said that all refused asylum seekers will have a right of appeal against refusal, and they congratulated themselves on removing the requirement to apply for leave to appeal contained in the previous Bill. The amendment could have the effect that people who did not apply for asylum forthwith on arrival in this country, or who hoped to be granted leave to enter or remain on some other basis first, would not have the right to appeal against refusal. It is difficult to speak to the amendment because it is the Government's responsibility to explain it and not simply introduce it as they did.
On 2nd November 1992 in another place, the Home Secretary said, at col. 32,We have now provided that all rejected asylum applicants will have access to an oral hearing before an independent adjudicator".In Committee on 3rd December 1992 Mr. Charles Wardle, the Parliamentary Under-Secretary of State, said,the primary aim of [the Bill] is to ensure that all asylum seekers have a right of appeal before removal".If the amendment is agreed, it may mean that the assurance has been broken and many people will not have access to appeal against refusal of asylum; in other words, this would apply to all those cases in Clause 10(1), (2), (3) and (4).
1177 We are concerned that some people coming to this country who, in ideal circumstances—circumstances which would be most convenient to the Home Office —would immediately apply for asylum, may not know about the rules which apply to asylum seeking; they may not know about the rules which apply to refugees. They may come in and their first attempt may be to apply for entry as a visitor. If that is refused, then their right to appeal will be taken away.
It may be that the amendment is contrary to Article 31 of the United Nations Convention, which provides that no penalty should be imposed on an individual because of his or her method of entry to, or remaining illegally in, the country. If somebody comes in and the method of entry involves, first, seeking entry other than as an asylum seeker, then a refusal of the right to appeal and refusal of leave to enter is contrary to Article 31 of the United Nations Convention.
The other interpretation of the amendment which, if it is true, should have been explained by the Minister, is merely that the Government propose to remove an anomaly. As it stands, although Clause 10 gives the right of appeal on asylum grounds in certain circumstances under subsections (1) to (4), it does not say that the refusal against which a person is appealing must have been a refusal of asylum. I can see that it may be possible that a person may apply for leave to stay as a student. If he is refused, he may appeal against that refusal and say that he is a refugee and should be granted asylum without previously having made an application for asylum. If that is the case —I want to hear from the Government whether or not it is—then perhaps the situation is less objectionable.
The Government must answer three questions before we allow the amendment to slip in as a technical amendment. First, we must have confirmation from the Government that all refused asylum seekers, whatever their immigration status at the time of the application or refusal, will have a right to appeal against refusal under the Act. I shall repeat that because it is of great importance.
All refused asylum seekers, whatever their immigration status at the time of application or refusal, will have a right of appeal against refusal under the Act. Unless we receive that assurance we shall vote against the amendment. Secondly, if it is a tidying-up amendment, why did it take the Government so long to table it? There has been no change in the text of the Bill. Why is it that at Third Reading in the second House of Parliament they are tabling tidying-up amendments of this kind?
Finally, if the Government are withdrawing rights of appeal contrary to commitments which they gave, then I suggest to the House that the amendment should not be pressed by Ministers.
§ 5.45 p.m.
§ Lord Tordoff
My Lords, before the Minister seeks to intervene, I should like to mention one small point in relation to the way in which the amendment has been presented. I have considerable sympathy with the noble Lord, Lord McIntosh, in that the Government's case was presented as a mere technicality. Some of the 1178 objections raised by the noble Lord, Lord McIntosh, make it understandable why he did that. Further reinforcement of the fact that it is not a technical amendment is that Amendment No. 10 seeks to widen the Long Title of the Bill specifically to include Amendment No. 8.
§ Lord Renton
My Lords, being greatly daring, perhaps I may try and make the noble Lord, Lord McIntosh, feel happier. Perhaps I can invite his attention to Clause 10(1) to (4). We find that in each of those subsections there is the expression,would be contrary to the United Kingdom's obligations under the Convention".That means that in each of those cases the question of the right to asylum or the lack of right to asylum must arise.
Before there is to be an appeal on such a question there obviously needs to be a claim for asylum. It is simple. That is all that the amendment establishes. It is somewhat technical; it is simple; it is necessary. Admittedly, it has come at the last possible stage in either House, except when, in another place, they consider your Lordships' amendments. But the noble Lord, Lord McIntosh, who has been so valiant in trying to weaken the Bill, should feel at ease on this occasion.
Amendment No. 8 is an amendment not to Clause 10; it is an amendment to the second schedule, which deals with appeals to the special adjudicator. The first paragraph refers back to Section 10(1) to (4). It is only right, for the sake of clarity, that we should make it clear at that point that there needs to have been a claim for asylum. I should have thought that with that explanation the noble Lord, Lord McIntosh, would welcome the amendment.
§ Lord Hylton
My Lords, I believe that some genuine doubts have been raised. I ask the Minister to consider this case: a person arrives in this country and is admitted under some bona fide category or other. During the time he is here there occurs in his country a coup d'état; a new regime comes to power issuing dire threats against the party, the tribe or the religion of the person concerned. The new administration goes further than that and takes steps which show that it has some intention of persecuting people or of carrying out acts of genocide. Is a person then still entitled to appeal against a refusal of asylum in this country, for example, because he did not make his asylum application immediately he arrived?
§ Lord Finsberg
My Lords, the more I listened to the noble Lord, Lord McIntosh, the more I found the position confusing. What my noble friend Lord Ferrers said was absolutely clear. It stands to reason that unless one has made a claim for asylum one can do nothing else. That was clear. It is technical. Very often when a Bill reaches its last stages the draftsman may say, "There is a possible loophole. Let us clear it and save the later expense of two sets of lawyers making large fees and someone having to pay for it". The two quotations given by the noble Lord cover this well. "Asylum applicants" were the words he used in the first quotation. A person can only be an asylum applicant if he has actually made a claim. The second 1179 quotation was "asylum seekers". Exactly the same applies. Perhaps I may give another assurance to the noble Lord. He may not have taken into account the case of Pepper v. Hart, which now makes it possible for courts to take into account ministerial words in Hansard as the intention.
§ Lord Finsberg
My Lords, it is legal for that to be done under certain circumstances. That combination should satisfy your Lordships. I should have thought that this is a technical amendment of the kind which, when I introduced Bills, I would have had no hesitation in moving—and it would have been accepted by most Oppositions on the nod.
My Lords, perhaps I may start by apologising to the noble Lord, Lord McIntosh, for at the last stages of the Bill having propelled him into a state of anxiety, distress and infuriation. I was only trying to be helpful. I thought that it might have been for the convenience of your Lordships not to have a long speech over something which in my view was only technical. Had I realised that the noble Lord wished a greater explanation I would have given it, and I shall certainly give it now.
The noble Lord asked, with a certain amount of disdain, why this was being done at Third Reading in the second Chamber of the Houses of Parliament. The answer is that that is exactly what Third Reading is for. One periodically finds that there are changes which ought to be made and Third Reading is an opportunity to make them.
I can assure the noble Lord that we are not reducing the right of appeal. The amendment is intended to make it quite clear that a person may bring an appeal on asylum grounds only if he has in fact already made a claim for asylum. My noble friend Lord Finsberg seemed to think that that was reasonable too. The Government have said through-out the proceedings on the Bill that we are giving a right of appeal to all unsuccessful asylum seekers. In other words, when the Home Office has considered and rejected a claim to asylum, the asylum seeker should be entitled to appeal. He will appeal to a special adjudicator against that decision. That, I believe, is what your Lordships have understood to be the intention of the Bill. But it has been pointed out that, as presently drafted, the Bill goes further than that and gives people who have never claimed asylum, and may never have had any intention of claiming asylum, the right to appeal—not to claim asylum—to a special adjudicator.
The rights of appeal set out in Clause 10 are appeals against various decisions under the Immigration Act 1971—decisions, for example, to refuse a person leave to enter, to refuse him a variation of leave or to make a deportation order against him. As the Bill stands, any person who is subject to one of those decisions would he allowed to appeal to a special adjudicator on the grounds that his removal from this country would contravene our obligations under the 1951 convention.
1180 As the Bill stands, it would be necessary to notify any person who is refused leave to enter, any person who is refused an extension of stay, any person against whom a deportation decision was taken, and so on, that, in addition to any appeal which he might have to an ordinary adjudicator who deals with immigration issues, he could also appeal to a special adjudicator who deals with asylum issues even though he had never expressed any wish before to claim asylum. In other words, the person would be able to appeal on asylum grounds even though there had never been any asylum claim. That is likely only to encourage frivolous and vexatious appeals. That is not what the Government intend, nor, I believe, what your Lordships have understood that we intend. That is why it seemed to me that it was a technical amendment.
The amendment therefore provides that a person may not bring an appeal under Clause 10 unless he has made a claim for asylum before the time of the decision or action against which he is appealing. In practice, that will usually mean that the appeal will be against a decision taken at the same time that the asylum claim is refused.
It may of course happen that a person does not claim asylum until after notice of an immigration decision is served on him, the point which the noble Lord, Lord Hylton, had in mind. But the appropriate course for such a person is not to lodge an asylum appeal at that stage. The right course is for him to lodge an application. A claim to asylum should be made to the Home Office or an immigration officer, not to a special adjudicator. The asylum seeker would be protected from removal while his claim is considered by Clause 8 of the Bill. If his claim is refused, he will be served with a new notice of decision and will be able to appeal to a special adjudicator at that stage.
This amendment does not in any way weaken the protection given to asylum seekers by the new rights of appeal under the Bill. It will though avoid encouraging people who have never claimed asylum and who have never thought of claiming asylum to put in spurious asylum appeals to drag out their stay here. It is for those reasons that I considered that it was a technical amendment. If I irritated the noble Lord, Lord McIntosh, by so saying, I apologise for that irritation. But I was only doing it in order to be helpful to your Lordships.
§ Lord McIntosh of Haringey
My Lords, in view of the fact that the amendment has only now been explained, I hope I may have the leave of the House to respond to what the Minister has said. It is by no means as simple and as clear as the noble Earl's speech makes evident that this could be described as a technical amendment. Clause 10, subsections (1), (2), (3) and (4) all refer to an appeal to a special adjudicator only on one ground—on the ground that the removal, the refusal of leave to enter, or whatever it may be according to the subsection, would be contrary to the United Kingdom's obligations under the convention. As the Minister has made clear, the United Kingdom's obligations under the convention refer only to refugees—to asylum seekers. Therefore, 1181 if there had been any possibility that those who fell within the terms of subsections (1), (2), (3) or (4) were making an appeal which was not an asylum appeal, it would be thrown out by the special adjudicator straight away on the grounds that it was contrary to the United Kingdom's obligations under the convention.
Even having heard the explanation I cannot concede that it is a technical amendment. If I had been at the Government Dispatch Box and it had been proposed by the Opposition, I would have been much more likely to say that it was unnecessary. But I fear still that it is undesirable as well. What I have not heard from the Minister is a precise response to my precise question, which I repeated. Can he give an assurance that all refused asylum seekers, whatever their immigration status at the time of application or refusal, will have the right to appeal? That is the assurance I am seeking before I decide whether we should divide the House on the amendment.
§ Lord McIntosh of Haringey
My Lords, with the leave of the House, I am most grateful to the Minister. That assurance ought to have been available in the Minister's original speech and, indeed, in his second speech, rather than being forced out at this late stage.
On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 9:
§ Page 16, line 9, at end insert ("and as if sub-paragraph (5) of paragraph 28 of Schedule 2 were omitted.").
§ The noble Earl said: My Lords, again I shall leave to your Lordships to decide whether or not this is a technical amendment. Its purpose is to ensure that certain asylum appellants cannot be removed from this country until their appeals are finally determined. I believe that the noble Lord, Lord McIntosh, will find sympathy with that.
§ The amendment is concerned with appeals by asylum seekers who have been refused leave to enter, and appeals by asylum seekers who are to be removed as illegal entrants. They will have rights of appeal under Clause 10(1) and 10(4) respectively. Paragraph 8 of the second schedule to the Bill provides that certain provisions of the 1971 Act will apply to those appeals as if they were appeals under Section 13(1) and Section 16 of the 1971 Act, respectively. One of those provisions is paragraph 28 in Part II of the second schedule to the 1971 Act. That paragraph prohibits the removal of a person who has a pending appeal under Sections 13(1) or 16. But in sub-paragraph (5) of paragraph 28 there is an exception to the general rule under the 1971 Act that an appeal which has been dismissed by an adjudicator is pending so long as a further appeal may be brought. Sub-paragraph (5) provides that when an appeal to which paragraph 28 applies has been dismissed by an adjudicator, it shall not be regarded as pending unless the adjudicator has granted leave to appeal to the tribunal.
§ We do not intend that restriction to apply to asylum appeals. We intend that every asylum 1182 appellant shall be protected from removal for so long as he has an outstanding appeal or, if his appeal is dismissed, for so long as he has the opportunity to bring a further appeal. In other words, we want all asylum appeals to be treated in accordance with the general rule on when an appeal is to be regarded as pending, which your Lordships will find set out in Section 33(4) of the 1971 Act. The amendment therefore provides that paragraph 28(5), which contains the exception to that general rule, shall not apply to asylum. I beg to move.
§ Lord McIntosh of Haringey
My Lords, I rise only to express my gratitude to the Minister for explaining the amendment. It was helpful to have the assurance that the amendment is about the definition of what is a pending appeal. The Minister has made that clear. The amendment is certainly not objectionable to us.
On Question, amendment agreed to.
§ In the Title:
Earl Ferrers moved Amendment No. 10:
Line 2, leave out ("restrict") and insert ("amend the law with respect to").
§ The noble Earl said: My Lords, this is an amendment to the Long Title of the Bill to reflect the amendments which your Lordships made in Committee to what is now Clause 11 of the Bill. The Long Title at present says that the Bill restricts certain rights of appeal under the 1971 Act; we are now also extending the new avenue of appeal to the Court of Appeal to all determinations by the tribunal under the 1971 Act. The new wording more accurately reflects the contents of the Bill. I beg to move.
§ Lord Clinton-Davis
My Lords, I rise because I believe that the Minister might, with respect, have paid a little tribute to my noble friend Lord McIntosh who raised this issue on Report, at which point he was dealt with in a fairly dismissive way by the noble Earl. The noble Earl said:He even mentioned the matter of the relevance to the Long Title of the Bill. I can only tell your Lordships that Clause 10 will have the effect that judicial review will be available in fewer cases than at present because of the avenues to the Court of Appeal".—[Official Report, 2/3/93; col. 654.]There is not a word at that stage as to whether the Minister saw any merit at all in the points of substance which were raised in col. 651 by my noble friend. I am sure that the Minister will seek to correct that uncharacteristic act of ungenerosity.
It also seems strange that it has taken the Government up to this point to realise that the Long Title was defective. I believe that that is almost unprecedented. It may be that the noble Earl will be able to point to certain precedents to confute that.
Having resiled from the original position which he adopted on the night of 2nd March, the noble Earl has now made an attempt to correct the position. The amendment itself could be—I am not saying that it is —misconceived. I say that because Part II of the 1971 Act deals with all the rights of appeal under that legislation. Failure to withdraw the word "certain" does not seem to have corrected the initial mistake. Arguably, all rights of appeal have been amended 1183 since any appeal beginning before an adjudicator and then proceeding to the Immigration Appeal Tribunal will now go to the Court of Appeal under Clause 11.
The Government may be attempting to justify that error by saying that they are doing nothing to amend appeals beginning with the adjudicator. All appeal rights are being affected. I am not at all sure that the amendment has not actually missed its target. Perhaps the Minister will be kind enough to respond to those points.
My Lords, the noble Lord, Lord Clinton-Davis, said that I was ungenerous to the noble Lord, Lord McIntosh. I did not wish to be ungenerous at all. I did say that this amendment refers to the Long Title of the Bill and that it is necessary because of the amendments made in Committee. I said that we were going to amend the Long Title and we have done so. In so far as the noble Lord, Lord McIntosh, perceives that the same course was necessary, I am grateful to him for having pointed that out.
§ Lord Clinton-Davis
My Lords, perhaps the noble Earl will consider the text of Hansard to which I have already alluded. I shall be specific. The noble Earl was being pressed by my noble friend to concede that point. All the noble Earl said was:He even mentioned the matter of the relevance to the Long Titleand left it at that. If I am wrong and the noble Earl referred to the matter at an earlier stage, I shall certainly withdraw that observation, but that seems to be the text.
My Lords, the noble Lord has the advantage of having the relevant copy of Hansard. He need not bother to get up because he would not wish me to sit down, compose myself and read Hansard while there is a pause in the proceedings. I understand that the noble Lord has read Hansard and his quotation from it must be correct.
I said at Report stage that we would introduce an amendment to amend the Long Title. The reason why we are having to amend it is because what the amendment did at Committee stage was to extend the avenue of appeal to the Court of Appeal to all determinations by the tribunal. That was an extension granting an appeal system which had not otherwise been there. Therefore, I should have thought that that was an advantage to your Lordships and the Bill. I thought it was necessary to alter the Long Title, which reflects what is in the Bill; it does not determine it.
§ Lord McIntosh of Haringey
My Lords, I hope that the Minister will forgive me. I am sorry to have to put the record straight. He repeated that he said at an earlier stage that he would have to introduce an amendment to amend the Long Title. He did not say so. There is no reference at any earlier stage of the Bill to an intention to change the Long Title. The first indication of the Government's intention to change the Long Title came when this amendment was put down.
My Lords, instead of listening to my speech the noble Lord, Lord McIntosh, was doubtless searching the copies and columns of Hansard. He has 1184 the advantage of me. If I did not say that I was going to introduce an amendment to the Long Title, so be it, but I do not see that that is really a criminal thing to do. After all, what have we done? I can only say that in Committee your Lordships decided to extend the Bill by extending the appeals procedures. As that was done, it was therefore necessary to alter the Long Title. That is what we have done. If by doing that I have once more irritated noble Lord opposite, I apologise.
§ Lord Clinton-Davis
My Lords, before the noble Earl sits down, perhaps I may point out that we are not irritated. That is the wrong way to put it. The Minister ought to make certain concessions when he has been proved to be wrong. That is all. There is nothing irritating about it.
§ Lord Renton
My Lords, it is our established practice that at the beginning of the Committee stage, the House approves a Motion, "That the considera-tion of the Long Title be postponed". The only sensible thing to do is to postpone it until the last minute so that the Long Title reflects what is in the Bill at the end of our deliberations—and that is what my noble friend has done. That is what has happened.
§ Lord McIntosh of Haringey
My Lords, before the noble Lord sits down, perhaps I may point out that the Motion, "That the consideration of the Long Title be postponed", means that it is postponed until the end of our Committee proceedings—
§ Lord McIntosh of Haringey
It does. The Long Title is then taken at the end of the Committee proceedings. Any reference to Hansard in relation not only to this Bill but to any Bill will show the noble Lord that we approve the title of the Bill in Committee. However, we do so only when other debates in Committee have been concluded.
§ Lord Renton
My Lords, perhaps I may have the leave of the House to correct the noble Lord. He is quite right in saying what we do at the end of the Committee stage, but it is well known that our procedure allows us to amend the Long Title at the end of the Report stage or at the end of the Third Reading.
On Question, amendment agreed to.
An amendment (privilege) made.
§ 6.12 p.m.
My Lords, I beg to move, That the Bill do now pass. Now that we have come to the end of all stages of the Bill's consideration in your Lordships' House, I think that it can be fairly said that we have had interesting debates at all stages. I am only sorry that we went through a few bumpy waters at the end of the Third Reading. Some speeches have been penetrating; some impassioned. That is as it should be, given the vital—and sensitive—issues which the Bill addresses.
Your Lordships will recall that, on Second Reading, I told your Lordships that, like many other countries in Western Europe, we have seen a massive 1185 increase in recent years in the number of people claiming asylum, and that it is clear that many people are now seeking to use the asylum process to circumvent normal immigration controls.
The main objective of the Bill is therefore to discourage applicants, who are not genuine refugees, from trying their luck, by creating a system which will enable asylum claims to be determined quickly and fairly. The Bill also seeks to make the immigration appeals system more efficient by removing certain rights of appeal in non-asylum cases. The aim is to concentrate our resources on the questions which really do matter.
Several amendments have been made to the Bill during its passage through your Lordships' House. Your Lordships agreed to the amendments moved so effectively by the noble and learned Lord, Lord Brightman, which inserted into the Bill two new clauses concerned with the creation of a panel of advisers for young asylum seekers. Very real concern was expressed on all sides of the House about the welfare of unaccompanied children who come to this country seeking asylum. The Government understand the strength of your Lordships' feelings on the matter. The amendments will now fall to be considered in another place. I am bound to tell your Lordships that it is the Government's view that the amendments as they stand are technically flawed: it will now fall to another place to give them further attention.
Your Lordships also accepted government amend-ments to extend the new avenue of appeal, which is provided in Clause 11, to all determinations of the Immigration Appeal Tribunal—and not just to asylum cases—and to make it clear that, when a child under 16 is to be fingerprinted, an adult with responsibility for the child must be present.
Throughout our debates, there has been an underlying anxiety, which has been repeated today, about the removal of some rights of appeal. We are putting in place new procedures to take care of those cases. Even so, your Lordships still expressed anxiety. The Government, and indeed the House, will be grateful to my noble friend Lady Flather for her constant and diligent search for a way through. The amendment which my noble friend put down today which your Lordships accepted, will, I hope, go a long way to allaying that anxiety.
I thank all noble Lords who have taken part in these discussions. Some have been fairly lengthy and, although it has not often been possible for the Government to meet all of your Lordships' concerns, the debates have nevertheless seldom been acrimonious. The noble Lords, Lord McIntosh of Haringey and Lord Clinton-Davis, both of whom carried the brunt of the burden from the Benches opposite, sought to amend the Bill in a number of different ways, and asked—quite correctly—some penetrating questions.
We were treated, at the Committee stage, to the remarkable spectacle of the noble Lord, Lord McIntosh of Haringey, moving an amendment; the noble Lord, Lord Clinton-Davis, moving an amendment to his noble friend's amendment; and 1186 then, after quite a substantial debate, the noble Lord, Lord McIntosh, graciously accepting his noble friend's amendment. It was done with grace and panache—and with an element of mischief—but it did enable your Lordships to discuss the draft Immigration Rules covering asylum and to ask the Government a number of perfectly legitimate questions.
We had a similar ritual dance performed over the draft appeals procedure rules. But, rather like the "Sound of Music", there was a different cast for the Von Trapp family singers for a different night of the week. And the next time we had the noble Lord, Lord Bonham-Carter, moving amendments to the amend-ment moved by the noble Lord, Lord McIntosh, and the noble Lord, Lord McIntosh, after much apparent mental turmoil, quietly agreeing to them. It was a novel procedure which gave much pleasure to your Lordships, as I am sure that it did to noble Lords opposite. The noble Lords, Lord Bonham-Carter and Lord Tordoff, contributed also on many parts of the Bill, and I was grateful for that, although my gratitude wavered like a frequency oscillator depending on the effectiveness of the noble Lords' contributions.
I am grateful for all the contributions which your Lordships have made. In some respects, the changes which your Lordships have agreed may not have been exactly what the Government would have wished to set out in the Bill. But therein, of course, lies the glories of the Division Lobby, to which your Lordships periodically saw fit to have recourse. For all the efforts and the concentration which your Lordships have put, both into discussing the contents and the effect of the Bill—as well as to improving it —I express the thanks of the Government.
The debates were enriched by the contributions of many of your Lordships with considerable experience, including those from the Cross-Benches. It is an awesome sight for any Minister, especially one who has not had the advantage of legal training or who does not possess a legal mind, to find himself facing ramparts manned by such formidable gladiators as the noble and learned Lords, Lord Ackner, Lord Woolf and Lord Donaldson of Lymington. Peashooters seem inadequate against the boiling oil which they pour so effectively—and with deadly effect—on to anything which tends to take their legal fancy. Despite that—or because of it—the noble and learned Lords contributed to your Lordships' debates in an effective and characteristically erudite way even if it was in a way which the Government did not always find wholly helpful.
My noble friend Lord Campbell of Alloway, with his legal expertise; my noble friend Lady Faithfull, with her knowledge of the social services; and my noble friend Lady Flather, with her particular knowledge of the subject, also had important contributions to make, based on their wide experience of immigration and asylum matters.
It would of course have been a happier experience for the Government if these of my noble friends had always found it convenient to accompany me into the right Lobby during one or two Divisions. As the schoolmaster might say, "Their behaviour was 1187 varied." But I forgive them for that. They were concerned with matters of principle and I respect that. And the Government always value their views.
My noble friend, Lord Renton, was a particularly conscientious contributor and caused problems for the health of the noble Lord, Lord McIntosh of Haringey. On one occasion the noble Lord complained that my noble friend did uncomfortable things to his blood pressure. I would only say that my noble friend's contributions had the reverse effect on me, but that is not the only reason which made me value my noble friend's contributions. They were always highly valued, and they always are.
I am grateful, too, to my noble friend Lord Astor who took his share of your Lordships' at times trenchant criticisms of the Government, and my noble friend Lord Strathclyde who seemed to have the doubtful distinction of being able to provoke your Lordships into Divisions more often that I did, but I am bound to reflect that his arguments must have been better than mine, for his clauses remained unscathed while mine did not always emerge so gracefully.
Despite the brouhaha, there has been a general welcome for the Bill's creation of new appeal rights which will now be exercisable by all rejected asylum seekers before their removal from this country. There have obviously been concerns about aspects of the procedures which are planned for decision-making and appeals in asylum cases. There is, I think, a balance to be struck between the protection of the individual applicant and the establishment of a speedy system which is resistant to misuse.
The same principle applies to the changes which the Bill makes to the general immigration system. I do not think that the two elements of efficiency and protection of the individual are incompatible. I like to think that the present Bill does justice to both. It is right though that the Government's proposals should receive close scrutiny, which they did.
Of course, I know that this is a controversial Bill and that some of your Lordships would have liked more changes—or fewer—to the Bill. But our proposals have been scrutinised very carefully, and that is as it should be. I hope that the modifications which we have made, and the explanations and the assurances which we have been able to give in the course of our debate, have done much to clarify our intentions.
I would say only this: the Government are fully committed to their obligations under the 1951 convention. We are determined to ensure that genuine refugees who need our protection are promptly and properly recognised and that they are given the protection which they need. We must do that by means of a system which is not subject to interminable delay, and one which is resistant to abuse. I like to think that the Bill is an important step in that direction.
Moved, That the Bill do now pass.—(Earl Ferrers.)
§ Lord McIntosh of Haringey
My Lords, no Bill is entirely bad—not entirely bad. This Bill is not entirely bad. There are, as the Minister said in his last few remarks, a number of aspects where the Bill makes improvements. It is clearly valuable for the primacy of 1188 the 1951 convention and its protocol to be recognised in legislation. It is valuable for the rights of appeal for asylum seekers to be made more clear. But in praising those elements of the Bill, I am bound to say that the Bill as a whole is still profoundly unsatisfactory and in many ways dangerous.
The Bill, after all, has a curious history. It was introduced no less than 18 months ago, before the last general election, at a time when it was generally recognised that the Immigration Service was under great pressure. There were far too few people available to deal with applications. There were long waiting lists, and such long delays that, in comparison with the number of people granted asylum in this country, the number of people who had to be given exceptional leave to remain, largely on the grounds that it had taken such a long time to determine their cases, was much higher. That cannot have been satisfactory. At that time the Government rightly took steps to deal with the serious undermanning of the Immigration Service, and they succeeded in reducing the length of time it took for appeals to be considered.
It is all the more extraordinary then, that a year later—within the past six months—the Government should feel it appropriate to bring forward a Bill which is only slightly better than the 1991 proposals; all the more extraordinary that they should not recognise that what was wrong, when one has far too many appeals to be dealt with, is not dealt with by removing appeal rights but by providing the resources to deal properly with those appeals and that that was already being done. The nature of the debates we have had has been extraordinary. The noble and learned Lords, Lord Ackner and Lord Brightman, and other noble and learned Lords, made that point effectively on a number of occasions.
However, we see in the Bill, as considered in this Chamber, severe restrictions on the rights of appeal, not so much for asylum seekers but for other applicants for entry into this country. Those restrictions on the rights of appeal for applicants to come to this country, which leave the Immigration Service virtually without any independent check on its activities, will cause great damage not just to our reputation as a country with responsibilities to the world but as a country which seeks to treat its own citizens equally. The abolition of appeals, and the fact, as is well known, that it is applicants who visit this country from the Caribbean and the Indian sub-continent in particular who are refused admission, have a profound effect on the family, social and community life of this country's immigrant communities.
So it is with a heavy heart that I say that the Bill was objectionable when it was introduced; has become less necessary but no less objectionable as time has gone on; and leaves the House as an objectionable measure. The way in which the Bill has been treated—I understand why the Government feel the need to do this occasionally—has been rigid. The Government have not listened to arguments. I am not saying that the Minister and his colleagues have not listened to arguments. Poor things, they were stuck there, and they had no choice but to listen to the arguments, but 1189 they had no scope to do anything about the effective arguments which were advanced against most parts of the Bill.
The Government have adopted a rigid approach to the Bill's wording and its intentions. It got so far as for me to hear the Minister say—when we were talking about the appeal system for visitors to this country —and I wrote it down, that the Government have decided and Parliament has approved that the system of appeals should go. I have to remind the Minister that until the Motion that the Bill do now pass has been carried, Parliament has not approved the proposal that the appeal system should go. If I am tempted, I shall divide against that Motion just to prove that that is the case.
A feature of the Bill for me—I come to the subject afresh and, like the Minister, do not have a legal training—is the extent to which all the outside organisations which understand the issues far better than I do have been—the Minister used the words "disquieted" and "irritated" about my behaviour—far more than disquieted and irritated. They are deeply disturbed by the Bill's provisions. We have had representations from many different individuals and groups. We have had help in preparing amendments from the Refugee Council, the Campaign for Visitor Appeal Rights, the Joint Council for the Welfare of Immigrants, the Immigration Law Practitioners' Association, the Law Society, Justice, the Refugee Legal Centre, the Children's Legal Centre, the National Association of Citizens' Advice Bureaux, and all the local authority associations. Their participation in opposition to the Bill has not been made out of ignorance or irritation; it has been made out of a deep sense of concern that the Bill was introducing new principles into our law which are damaging to civil liberties in this country. I share those views. I am grateful for the assistance that they have given us in trying to put those views forward and to put the Bill right.
I am especially grateful of course to my noble friend Lord Clinton-Davis and to others of my noble friends, notably my noble friend Lord Pitt, who participated in debates. I have been happy working for the first time with the noble Lord, Lord Bonham-Carter. I think that we have seen eye to eye on every issue with which we have been confronted. He was ably joined by the noble Lord, Lord Tordoff, the noble Baroness, Lady Hamwee, and others from the Liberal Democrat Benches. It has been a pleasure to work so closely with a number of people outside the political parties, notably the noble and learned Lords. I pay tribute to the noble and learned Lord, Lord Ackner, and to the Bishops' Bench, in particular to the right reverend Prelate the Bishop of Ripon. Of course, on occasions we found ourselves eye to eye with members of the Conservative Party, although perhaps they would prefer me not to name them.
When the Bill came before the House, Ministers gave the impression that it was a tidying-up measure. It was said that we had the solution to anomalies and difficulties which are found in our immigration and refugee asylum seekers' system. I suggested to the 1190 House on Second Reading, and I suggest it again, that that is far from being the case. This is not the end of the story; it is the beginning. It is the beginning of a period, which will last many years, in which developed countries must look closely at their relationships with people from other countries. They must decide on what basis they will allow people from other countries to come into this country, whether to work, to visit family or to seek refuge. We as a society are by no means clear in our mind what is our attitude to those issues. The problems will not go away. The differences between rich and poor in the world are not going away and a petty and damaging Bill of this kind has made no progress in helping us to resolve those problems.
§ 6.31 p.m.
§ Lord Bonham-Carter
My Lords, I wish to associate myself with the thanks expressed by the noble Lord, Lord McIntosh, to all the organisations outside the House which helped noble Lords who were proposing amendments to the Bill. Their assistance was extremely important, valuable and encouraging. I wish to associate myself, too, with the thanks that he gave to noble Lords on his Benches, our Benches, the Cross-Benches and the Tory Benches who assisted us in the few amendments to which we received a positive response.
On Second Reading I said I hoped that the Bill would emerge from this House improved. I must confess that I do not believe that we have much ground for congratulating ourselves. We edged away on one or two small issues, some of which were important. However, we did not strike the heart of the Bill, which was the removal from a whole tranche of people of the right to appeal. As was said on more than one occasion by the noble and learned Lord, Lord Ackner, that a right of appeal has existed for 21 years. It was the result of a report of a distinguished lawyer, Sir Roy Wilson, who had a passion for justice. He ensured that in the rules which he laid down justice was written into the procedures, which have been followed ever since.
The Government have claimed that there was a log jam, which they ascribed to the law. Therefore, they removed the appeal in order to speed up the process. I argue that the law may have been partly responsible for the log jam but that is intrinsic to the nature of the law. It slows down procedures because people can to to the court to ensure that their rights are defended. I suggest that the delays were due more to administrative hold-ups, a lack of resources and a lack of people to deal with the problems than to the nature of the law.
It is interesting that today there was published the report of the Home Affairs Committee of another place entitled Delays in the Immigration and Nationality Department. It may be due to what the noble Earl, Lord Ferrers, called the "natural administrative process" but in the Home Office that process is serious. The evidence of the Immigration Law Practitioners' Association states:Delays permeate the system of decision making in asylum cases".1191 It gave the example of a Kurd, Mr. K, who was refused refugee status. For seven days he was on hunger strike outside Queen Anne's Gate. During the course of the hunger strike Mr. K received a letter from the Assistant Private Secretary at the Home Office advising him that the entry clearance refusal would be reconsidered. However, there was no further Home Office activity, despite numerous reminder letters throughout 1990 and 1991. That had nothing to do with the law; it was the natural administrative process sloping along in a leisurely fashion. It caused considerable suffering which amounted to injustice to the individual concerned and his family. If by streamlining the legal process we have jeopardised the defence of people's rights, I hope that at the same time the administrative process will be speeded up and appropriate resources given to it in order to ensure that people do not suffer from the kind of delays which I have described.
It has been said that the incorporation of the 1931 Convention into the law is an advance, and so it is. But we should not forget that at the beginning of the whole debate many of us believed that the 1931 Convention gave an inadequate definition of the refugee for today's purposes. We should have been much happier had we been given a wider definition which was more appropriate for our time.
The noble Lord, Lord McIntosh, concluded by saying that the problem of migration would be with us for many years to come. That is indubitably true. The pressure for migration from the southern Mediterranean and from the old countries of the USSR and Eastern Europe is strong. As I said on Second Reading, I do not believe that the problem can be dealt with by a single nation; as a minimum there should be a European response. It is folly to suppose that we can be satisfied with the situation in Germany, where there are 50 migrants to every migrant in this country or in France. We should not be surprised if there is a degree of racial tension in that country. We should not believe that we can become immune from the consequences of that simply by shutting our doors tight. If we are to tackle the problem constructively we must do so on a basis which is wider than short-term national self interest. That is one lesson which we should learn. I share the reservations about the Bill expressed by the noble Lord, Lord McIntosh. As I said at the beginning, I believe that its motives are extremely dubious and that its methods are to be deplored.
§ 6.37 p.m.
§ Lord Renton
My Lords, I was interested to hear the comments made by the noble Lord, Lord Bonham-Carter, and in a moment I shall deal briefly with the issue of migration. The Bill has been difficult but necessary. I wish to congratulate my noble friend Lord Ferrers on the robust common sense and good humour that he has shown throughout our proceedings. I wish too to acknowledge the valiant efforts of noble Lords on the Labour and Liberal Democrat Front Benches, especially the noble Lord, Lord McIntosh. In accordance with their beliefs they strenuously opposed the Bill and tried to alter it.
1192 However, I venture to say that, whichever party had been in power, a Bill on these lines would have been necessary. I say that because, with three million people unemployed, with our cities often in a state of congestion, with poor housing and with the various social problems relating to health and education, any responsible government must face up to the fact that people are trying to enter this country, some with justification but many using every means they can to get round our law.
This is a nostalgic occasion for me because, when I held the appointment which my noble friend Lord Ferrers now holds in the Home Office, I had the responsibility of helping that great reforming Home Secretary, the late Lord Butler of Saffron Walden (R. A. Butler as he was at the time), with the preparation and piloting through another place of the Commonwealth Immigrants Act 1962. It was vigorously opposed by the then Opposition. They voted against it over 40 times on the Floor of the House of Commons and implied that, if and when they had an opportunity to do so, they would either repeal it or reduce its effect. But that did not happen. In fact, about three years later, when they were in power, they strengthened the Bill and made it apply to East African Asians, to whom it had not hitherto applied. Noble Lords opposite must now think themselves lucky that they are not in power at present, bearing in mind some of the views that they have expressed on the Bill.
As my noble friend Lord Ferrers said, genuine refugees will be recognised and granted asylum. The noble Lord, Lord McIntosh, had the grace to say that this is not an entirely bad Bill. I was relieved to hear him say that but I am sorry that he does not feel the same about my interventions.
§ Lord Brightman
My Lords, I am glad to have an opportunity to thank the noble Earl, Lord Ferrers, for his generous response to the speech that I made on Report introducing Clauses 3 and 4 of the Bill dealing with the problem of unaccompanied child refugees.
I am always afraid that the Government may come to regard Law Lords, and particularly retired Law Lords, as rather tiresome. Therefore, I was highly gratified when the noble Earl said that I had succeeded in shooting down all his arguments against the proposed new Clauses 3 and 4. I believe that he used the expression, "banged them on the head". The Division which followed had a somewhat startling result because there proved to be a majority of no fewer than 55 in favour of Clauses 3 and 4. I earnestly hope that when the Bill comes to be reconsidered in another place, Clauses 3 and 4 may be left in it.
The plight of those unaccompanied child refugees is distressing. There are not many of them—185 last year. The cost of operating Clauses 3 and 4 is only about £500 or £550 per child. The expense involved is truly insignificant. I hope that when the Bill goes on to the statute book it will still contain Clauses 3 and 4.
§ 6.45 p.m.
§ Lord Ackner
My Lords, I too pay tribute to the noble Earl, Lord Ferrers, for his tolerance, good humour, eminent fairness and great willingness, as far as he can, to try to assist in any amendment which has any merit.
I was—I shall not say accused because I take it as a compliment—said to have exhibited passion last Thursday in regard to an amendment. I am delighted to know that, as yet, it is not all spent. However, I now speak with a degree of sadness. If I were back at the Bar—my first love—and were asked about the noble Earl, Lord Ferrers, I should say unhesitatingly that he was an admirable opponent but often had an awkward client. When asked to expatiate on that, I would say, "a client who does not listen to his wisdom".
Shortly—I hope sooner rather than later—we shall have the Criminal Justice Act 1991 back for amendments which would have been quite unneces-sary had the "client" deigned to listen to the observation that, if you require judges to sentence sitting wearing a blindfold, or, if not a blindfold, dark glasses, then the public is not likely to be protected against quite a number of persistent offenders.
It will not be long before the decision of this House with regard to the abolition of the mandatory life sentence is nullified in another place. While the noble and learned Lord the Lord Chancellor is busily, with drastic cuts, trying to save £40 million, we are budgeting for almost the same sum to be spent on funding the War Crimes Act espoused so enthusiastic-ally by the Home Office.
I speak with sadness because when, for 21 years, it has been thought that justice requires a provision to insure against the fallibility of bureaucratic decisions, there is a strong and legitimate expectation that that will not be removed without an extremely strong justification, a justification which does not consist of the contention, "Ah, but we need the resources which we use for those appeals to provide for appellate facilities for an entirely different category of persons —those seeking asylum—as compared with those seeking limited rights to visit or to study".
I speak with sadness because I believe that the absence of that justification will diminish greatly the reputation which this country enjoys in such a high degree for doing justice. It will also have the inconvenient spin-off—and I believe that convenience is the motive factor behind the Government's proposals—of swelling the already overburdened lists in the High Court with more applicants seeking judicial review.
§ Lord Jakobovits
My Lords, to my deep regret, a whole series of long-standing public engagements on the other side of the Atlantic prevented me from attending the Second Reading and, indeed, subsequent debates on the Bill. Therefore, I crave your Lordships' indulgence if in my few comments I may go beyond the usual parameter of a Third Reading debate and also express my gratification that my remarks come at this twilight moment in the passage of the Bill, as they seek to serve as a kind of epilogue 1194 to the very rewarding and important debates which have taken place on the Bill. I need hardly declare my special interest. As an immigrant myself, finding shelter here from Nazi persecution some 56 years ago, I am naturally concerned that others in similar circumstances of oppression should share my good fortune.
Incidentally, I cannot quite understand why the inelegant and perhaps supercilious term "asylum seeker" should have replaced the simpler word "refugee" which might evoke more sympathy. Altogether, why use "asylum" with its associated connotation? I prefer "sanctuary", not only out of personal bias. I appreciate the sincerity of the Government and their motives in presenting this Bill. I speak in general terms when I say one obviously wants to prevent causing a backlash of widespread xenophobia and nationalist extremism such as is now ascendant in Germany, with sinister overtones and deeply painful memories. At the same time, I share some of the reservations expressed in so many quarters, specifically by the Refugee Council, and I welcome the consultative status now accorded to it following the vote in Committee which I would have supported.
It would be quite unrealistic, it seems to me, if in this debate we did not acknowledge that the provisions of the Bill, even as amended, only skim the surface of the problem. It deals with the narrow band of fugitives who are either already in this country, having entered as students, visitors or tourists, or who are lucky enough to have British consular services close at hand. But what about the many who may seek safety from political or ethnic persecution and who cannot escape without proper papers? A depressing example of that was revealed in this morning's news of the 179 Bosnian refugees who have been stranded since last November on the Slovene-Austrian border.
With war, ethnic tensions and civil strife now so rampant, particularly in the lands formerly under Communist control, but also elsewhere in the world, one must fear a dramatic increase of sanctuary-seekers in the foreseeable future. That has been mentioned earlier today. Many hundreds of thousands, if not millions, may feel threatened, be dislocated and search for a new haven.
No single country can be expected to cope on its own with a problem of such magnitude. The situation surely calls for European or indeed international action. Britain, with its noble record of accommodating refugees and other newcomers, is well qualified to take the initiative and summon a special conference on this. An instructive precedent may be the Evian Conference convened by President Roosevelt under the aegis of the Refugee Committee of the League of Nations in July 1938 to deal with the rising tide of would-be emigrants from the growing terror of Nazi Germany. The American delegate at Evian announced that his country would admit 27,000 to 30,000 refugees a year—a quarter of the contemplated emigration. This, he said, represented one-fifth of 1 per cent. of America's population, and he then suggested that, 1195should the governments represented on the Committee be willing to take annually the same minute fraction of their populations, 100,000 per year could easily be moved".Alas, hardly any governments at that time responded, and before long millions perished in the death camps—victims partly of indifference and silence in the rest of the world.
Attitudes today, I believe, are far more tolerant and caring. We need only witness the response to appeals to relieve famine and to relieve oppression in South Africa and elsewhere where formerly no one cared. Therefore the great democracies might well win more liberal support for some inter-governmental action.
I had communicated the suggestion of such a conference to several of my noble friends in this House, and I am grateful for the approving references to the proposal in the Second Reading debate. For the record, I now present the proposal more fully and more formally. Eight days ago was the fifth anniversary of my maiden speech in this House, delivered from this place on 4th March 1988. I then spoke on the Second Reading of the Immigration Bill, and I concluded by urging this House and others far beyond to,remember that we are all, each one of us, temporary residents on this planet where we have to learn the art of living together in harmony before our visa expires and we are called to migrate to another world".—[Official Report, 4/3/88; col. 377.]At this time, when the moral fibre of our nation is being tested as never before, I will only add: let us rejoice over every life we help to save, and conversely let all who find refuge in this country help to enrich our national experience and to ennoble our national character.
My Lords, the speech we have just heard from the noble Lord, Lord Jakobovits, shows only too well the strength of feeling and concern which he has expressed and which other people feel about those who live in parts of the world where they are subjected to practices which we in this country are not subjected to. Noble Lords have missed the presence of the noble Lord, Lord Jakobovits, during the passage of this Bill through the House due to his absence on the other side of the Atlantic where he had other commitments to attend to. I for one am glad that the noble Lord was able to speak on the Bill even at this late stage.
We have come to the end of the Bill and I can only say again that I am grateful to noble Lords for the contributions they have made to the Bill and for the manner in which they have made them during the Bill's passage through your Lordships' House.
On Question, Bill passed, and returned to the Commons with amendments.