HL Deb 02 November 2000 vol 618 cc1204-26

8.12 p.m.

Lord Judd rose to move, That an humble Address be presented to Her Majesty praying that the regulations laid before the House on 13th September be annulled (S.I. 2000/2446).

The noble Lord said: My Lords, I should like to express appreciation for the presence of my noble friend Lord Bassam of Brighton on the Front Bench. It has been an exacting week—indeed, it has been an exacting few weeks—and he has been playing a very full part in the activities of the House. I am sorry that when he should be having a chance to unwind, or to begin unwinding, for the weekend he is here yet again at a date hour. But I know that he feels as deeply concerned about the issues we will be discussing as I do myself and that he will therefore forgive me for having detained him in this way. I am sorry also that my noble and learned friend the Lord Chancellor is not present, although one understands why it is a little difficult for him to be here, as some of the points that I want to make more directly concern his department than the Home Office.

I should say at the outset that the restoration, under the Immigration and Asylum Act 1999, of the right of appeal against a refusal of a visa to visit family members in the United Kingdom was, and remains, a very welcome development, and one for which Ministers deserve a great deal of credit. The abolition of the original right of appeal by the previous government, in 1993, was strongly contested at the time and subsequently caused considerable anger and resentment among the black and Asian communities in this country. I know that that anger and resentment were keenly felt by Labour Members of the other place, and in the place where it hurts most—their constituency surgeries. Indeed, the understandable concern of such Members was instrumental in the restoration of the appeal right being made a Labour Party manifesto pledge in 1997. As the Labour Party said at the time, and as Ministers have emphasised recently, we live in a multi-ethnic society where many of our citizens have close links with extended family members living in countries other than the UK. Maintaining those links is an important part of their social and cultural life—it is an important part of commitment to the family—and key family events such as weddings, births and funerals are therefore essential to that purpose. It is to ensure that families are not denied the opportunity to be together for such events that these appeal rights were established.

However, Members of the other place have not been alone in facing the frustration of those whose relatives have been unjustly denied a visa for such events. Citizens advice bureaux workers, who advise more than 50,000 people with immigration problems every year, have been only too aware of the anger and resentment caused by unjust visa refusals and the absence, since 1993, of any appeal rights. That may explain why, at the CAB service AGM on 27th September this year, the 1,250 delegates present debated and unanimously passed a motion deploring the Government's decision to negate the value of the new right of appeal by charging substantial fees to appellants.

For, under the regulations before your Lordships' House tonight, appellants will have the option of a full, oral appeal hearing, before an adjudicator of the Immigration Appellate Authority, for a fee of £500, or an appeal on the papers only, for a fee of £150. The Government have stated that these sums are necessary to cover the cost to the Immigration Appellate Authority of administering these appeals, both the Home Office and the Foreign Office having agreed to absorb their own costs. The principal concern of the citizens advice bureaux is that these not inconsiderable sums will act to deter some wronged applicants from exercising their right of appeal. That concern is shared by, among others, the Commission for Racial Equality, the Immigration Law Practitioners' Association, the Joint Council for the Welfare of Immigrants, the Legal Action Group, the Immigration Advisory Service, the National Assembly Against Racism, and the Law Society—all are bodies working in the frontline of these issues.

Although the regulations provide for the fee to be refunded where the appeal is successful, an appellant will of course have no guarantee of success, however strong he or she believes his or her case to be. In short, there is a risk which some of those unjustly refused a visa can simply not afford to take. As the Commission for Racial Equality has noted, those likely to be using these appeal rights often live in conditions of relative economic poverty, and are normally dependent to a very significant degree on their family members in the United Kingdom to finance the visit. And yet many of these family members—and especially those in the Pakistani, Bangladeshi and some Caribbean communities—are themselves among the poorest groups in the UK. For many of those unjustly refused a visa, therefore, the fees will present a substantial barrier to justice.

In costing the administration of these appeals, the Lord Chancellor's Department has assumed that "the great majority (80 per cent)" of appellants will opt for an appeal on the papers only, for a fee of £150, rather than for an oral hearing, for a fee of £500. Of course, if the fees remain at that level, then this assumption may well become self-fulfilling, to some degree at least. However, this assumption suggests a surprisingly poor understanding of the visa application process. In reality, the great majority of visa decisions turn on the applicant's credibility—as well as that of his or her relatives in the UK. Accordingly, if cost were no object, most appellants would opt for a full, oral hearing so as to give their relatives in the United Kingdom a proper opportunity to demonstrate their credibility before the adjudicator, and to explain how the applicant had been misunderstood.

The Lord Chancellor's Department has suggested that the more impecunious appellants—that is, those most likely to be deterred by the fee—may qualify for representation funded by the Legal Services Commission, and that this would cover the fee. However, frankly it is very difficult to see how a particularly impecunious applicant, living, for example, in Sierra Leone, would be able to identify a solicitor's firm or agency with an appropriate Legal Services Commission contract, make an application for funding and get a favourable decision under the merits and financial eligibility tests, all within the 28 days allowed for lodging an appeal.

In recent weeks, the Lord Chancellor's Department has sought to justify the fees for these appeals on the grounds that this "allows for consistency with" the fees regime in the civil courts. The essential point here is that the imposition of fees is entirely inconsistent with the rest of the social welfare tribunal system under which the family visitor appeals will be heard. There are no fees for any other kind of immigration appeal, for employment and social security tribunals, for disability and medical appeals, or for mental health review tribunals. The fees therefore represent a significant departure from one of the underlying aims of the tribunal system; namely, to maximise the access to justice of those who lack the means to mount a conventional legal challenge in the courts.

Moreover, it is in my view deplorable that the first fees to be imposed under the social welfare tribunal system should impact—almost exclusively—on black and Asian Britons. As the Commission for Racial Equality concludes, this would be, a wholly undesirable precedent for a system of justice in a multiethnic society". When my noble friend comes to reply, perhaps he will be able to explain how the impact of the fees on black and Asian Britons is consistent with the duty shortly to be imposed on the Lord Chancellor's Department, under the Race Relations (Amendment) Bill, to eliminate racial discrimination and promote good race relations.

Until very recently, the Government have sought to justify their decision to impose fees on family visitor appellants on the sole ground that "there is no new money" to cover the administrative costs. In 1997 and 1998, and arguably even in 1999 when the relevant provisions of the Immigration and Asylum Act were debated in your Lordships' House, this position was perhaps understandable, given the Government's then adherence to their predecessors' spending plans. However, circumstances have changed.

First, following the recent Comprehensive Spending Review, there is now no apparent shortage of "new money" for immigration control. In July 2000, the Chancellor announced an additional allocation of £600 million for immigration control. Even if most appellants opt for an oral hearing, then the annual cost of administering these appeals would still be less than £10 million. And, of course, if the Government's prediction of 19,500 appeals per year proves, as some suspect it may, to be an over-estimate, then the total cost will be even less. Perhaps my noble friend could tell us how many appeals have been lodged since 2nd October. Given the Government's long-standing and very welcome commitment to these appeal rights, I find it difficult to understand why they cannot see their way to covering such costs out of the additional money allocated to immigration control by the Comprehensive Spending Review.

Secondly, the Government have abandoned their attachment to the notion of a self-financing regime in another area of new immigration policy; namely, and again this is very welcome, the regulation of immigration advisers by the newly-established Office of the Immigration Services Commissioner. In January 1998, the Government's consultation paper stated that the scheme would have to be, fully self-financing, for both its start up and continuing costs". However, it is now clear that the great majority of the advisers covered by the scheme will be exempted from the registration fee and that, as a result, the total income from registration fees will cover only a very small proportion of the commissioner's total operating costs.

In such circumstances, I can see no reason why the Immigration Appellate Authority should pass on even a proportion of its costs to family visitor appellants and I hope that, even at this late stage, the Government may yet be willing to reconsider their approach to these appeals. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the regulations laid before the House on 13th September be annulled (S.I. 2000/2446).—(Lord Judd.)

8.25 p.m.

Earl Russell

My Lords, I can confirm what has been said by the noble Lord, Lord Judd, about the anger felt in 1993 at the withdrawal of the right of appeal for visitors' visas. I was in my place on this Bench. I still hear, ringing in my ears, the voice of the noble Baroness, Lady Flather, exclaiming, "My brother will be subject to this Bill". She went into the Opposition Lobby and a group of around half a dozen Conservative Peers followed her.

I was standing next to her in the Lobby when the noble Baroness, Lady Thatcher, coming late into the Division and inadequately briefed, saw a group of Conservatives and followed them into the Lobby. The noble Baroness, Lady Flather, who is an honourable lady, explained to the noble Baroness, Lady Thatcher: "I am sorry, Lady Thatcher. This is not the Conservative Lobby". That is one of my very favourite memories of 12 years in this House.

The manifesto commitment to restore the right of appeal was welcome. But I am afraid that these regulations can be described only as a partial fulfilment of that commitment. Noble Lords will note that Regulation 4 requires that the money—£500 for an oral hearing or £180 for an appeal on the papers—must be paid on the spot, in the local currency, immediately before the appeal can even be lodged. I ask those of your Lordships who went away on holiday this summer: how many stepped out of the aeroplane with £500-worth of the local currency in their pocket? I can be quite sure that I did not.

If one is coming over as a family visitor to attend a life event such as a wedding or a funeral—if it is not improper to describe a funeral as a "life" event—then it matters that the appeal should be heard quickly. The process, even if it can be done, of raising £500 in the local currency, will take time. Indeed, there will be a good many people who will not be able to do it. Not everyone who wants to visit a family member in this country has an annual income of £500.

The Government are bound, under the judgment in ex parte Witham, to waive or reduce fees for those who are of limited means. I am sure that the Minister will remind us of that obligation and he will urge that it is to be pleaded against a great deal of what we say. However, to do this, one has to find a firm which is approved by the Legal Services Commission. One must contact with that firm, advise it and lodge the appeal within 28 days. Perhaps I may ask the Minister: how many people in Chittagong possess a copy of the list of firms approved by the Legal Services Commission? I reassure the Minister that I do not expect him to answer that question. But if he does not answer it, he will have conceded one of my major points; namely, he will have conceded that the application of ex parte Witham will be extremely difficult, if not impossible.

I should like to ask the Minister one other practical question. If several relatives, coming together to attend the same event, all appeal, is the fee to be paid for one appeal or severally for several relatives? I hope that the answer will be that it is to be paid for one appeal. However, if I can be given the answer to that question, I shall be extremely grateful.

My next concern relates to Regulation 2(2), which provides lists of eligible relatives. This represents what I have described in many other contexts as an entirely misguided method of drafting legislation; namely, the method of proceeding by total enumeration of individual categories. When that list is found to be inadequate, it is equivalent to opening the stable door after the horse has bolted. More regulations have to be brought in to introduce more categories. It is much better to use the recommendation of the Renton report on the preparation of legislation and to state a general principle which can then be applied by a court to the no doubt peculiar facts of any individual case.

The Immigration Law Practitioners Association has tried to do this. It has suggested a formula of, related by blood or marriage or by a relationship akin to marriage". It seems to me that that would be applicable.

But it would apply to all the innumerable hard cases which the drafting of Regulation 2(2) will throw up. To begin with, although it is to be welcomed that it includes an unmarried partner, it does not specify the children of an unmarried partner by a previous union. Of course, within the fact of mortality there must be many such cases. It does not mention the spouse of a nephew or niece. A nephew or niece who wishes to attend a family wedding and is told that they cannot bring their spouse with them will feel what I would regard as a very natural sense of grievance. It is not clear whether adoptive parents are treated as parents. I should be grateful if the Minister could clarify that point.

It is sometimes supposed that this difficulty in enumerating family relationships is somehow to be taken less seriously because it applies only to the extended family patterns of other countries or to the somewhat disorderly patterns of families of the 20th century. That is not so. I am at present working on an entry for the Dictionary of National Biography of a 17th-century parliamentarian of some standing. His inner family circle included the nephew of his father's first wife. I should say that his descent was from his father's second wife. It also included his niece's husband. In the next generation there is even a close family relationship with the great nephew of the grandfather's first wife. That is a family relationship, even though I have left out what are perhaps the most material words, which in that case are "Bencher of the Middle Temple".

It goes to show that family relationships may be a great deal more varied than we realise. If the Government do not understand that, they are pickling more rods for their own back than they realise.

We are told—and the noble Lord, Lord Judd, has reminded us—that the Government claim that there is no new money. The noble Lord has given one reason why that is not so; I shall give another. In the first year of this Government, when they set out to follow the previous Conservative government's spending limit, they tried so hard that they achieved an undershoot of £3 billion. The Treasury, with consummate brilliance, wrote that £3 billion into the permanent public spending totals on which future increases were to be based. The Government did not need to let the Treasury do that. Within that £3 billion was plenty of money to finance the £10 million that the noble Lord, Lord Judd, is moderately asking for.

When we used to have a right of appeal, the rate of success was between 50 and 60 per cent. It is perfectly possible that half of those will be denied an effective right of appeal by these new regulations. That is an awful lot of injustice. It will apply most severely to visitors from the Indian sub-continent—India, Pakistan and Bangladesh. I wonder whether it would have been applied if these regulations dealt with the category of people who are most numerous in the United States and Canada. I wish I did not have to ask that question. I hope that the Minister can tell me that he will withdraw the regulations and that I can forget about it in future.

8.35 p.m.

Baroness Uddin

My Lords, I thank the noble Lord, Lord Judd, for bringing this matter before the House. I am greatly inhibited whenever I hear the noble Earl, Lord Russell, speak on these matters. He has expressed much more eloquently than I could have what I wish to say. However, for posterity's sake, I shall persist in repetition. I hope that one day the noble Earl will quote what I have said in one of his speeches.

I wish to make a brief intervention in this important debate which, as the noble Earl said, particularly affects so many British Bangladeshis, Indians and Pakistanis as well others who are settled here but have relatives living abroad.

I wish to acknowledge the good work of the CRE, the Immigration Advisory Service, the National Assembly Against Racism, JCWI, the CAB, ILPA and so on. It is very important that they have persisted when many of us had taken our eyes off the ball to do other things.

I also pay tribute to my right honourable friend the Home Secretary and the Government for having recognised the great distress which was caused by the previous Conservative government when, in 1993, they removed the right of appeal for refused visitors. The refusal, without redress, of entry clearance for relatives of British citizens to come to the UK for important family events made many feel that they were second-class citizens in their own country.

That concern was expressed in the annual reports of Dame Elizabeth Anson, the independent monitor of refusals that did not carry a right of appeal. Consequently, there was a manifesto commitment to reintroduce a right of appeal, and that was honoured in the legislation introduced last year by the Government.

I accept also that the definition in the regulations of a family relationship which gives the right of appeal in the event of refusal of entry clearance is sufficiently wide to cover most relatives, although not those of partners who are not married and others mentioned by noble Lords. Perhaps the Minister can tell us why this should be so in these welcome days of non-discrimination in the post-Lawrence era.

Yet, sadly, I have to speak of discrimination in the prescription of fees for those wishing to exercise their statutory right of appeal. There was, of course, no mention of fees being charged in our manifesto commitment. Had the opposition party called for this, I think our side would have called "foul". Labour's policy handbook published in October 1996 stated: We will recognise that families need to be together for key life events like weddings, births and funerals. At present those refused a visitor's visa for events like these no longer have the right of appeal against the decision. We will restore that right of appeal". These fees will deter many people from exercising the right of appeal that the Labour Government quite properly restored. It is small consolation that the fee will be refunded if the appeal is successful. If it cannot be paid in the first instance, what is the point? Some £500 for an oral hearing will have to be paid in local currency at the British post overseas before a person is able to exercise the right of appeal. This is against a fee of £33 for the visa itself. The measure is financially discriminatory against those of modest means. I suspect that the idea of financial bonds for visitors was dropped precisely for these reasons.

The Parliamentary Secretary in the Lord Chancellor's Department, Mr David Lock, MP, stated in a letter dated 14th September that, the appellant may qualify for representation funded by the Legal Services Commission". This would mean having to send out forms to appellants overseas. Sponsors in the UK are hardly likely to be eligible for legal aid if they are able to meet the Immigration Rules requirements to ensure that the visitor is not reliant on additional public funds. Moreover, it is not realistic to expect legal aid to be arranged in the short time-span envisaged for the hearing of such appeals.

What troubles many of us is that, if both the Home Office and the FCO have agreed to waive any extra costs for administering this new right of appeal, why cannot the Lord Chancellor's Department do the same? When new rights of appeal have been introduced in the past there has been no requirement to pay court fees; so why now? If their estimate is correct, that of the 19,500 such appeals a year some 80 per cent will be reviewed on the basis of the papers alone, without an oral hearing taking place, the costs will be minimal in comparison with the whole. The 20 per cent of cases in which there are full oral hearings represent some 3,900 appeals, as against the Immigration Appellate Authority's estimate of 57,900 disposals of completed appeals of all types in a full year.

Never before have the costs of the hearing of a statutory right of appeal in an immigration case been required of a potential appellant before the exercise of that right. Even if all the appeals were unsuccessful and no fees were repayable as a result, the total revenue would be no more than £3.5 million. This Government are not subject to excessive financial restraint.

It is clear to all of us, and it must therefore be clear to the Government, that those who are most likely to exercise this right of appeal are relatives from the Indian sub-continent. That is why I raise this point. In those circumstances, the measure appears to be indirectly racially discriminatory against persons from certain parts of the world. I find that unacceptable. How does the measure square with the welcome insistence of the Government on access to justice? It can surely only deny people that access.

In denying access to the right of appeal, will these provisions stand the test of Article 6 of the ECHR? It is argued that court fees are payable in the civil courts. But we are not dealing with the civil courts; we are talking about the Immigration Appellate Authority, which was set up as part of the tribunal system 30 years ago following the Wilson committee recommendations recognising that the right of appeal is especially important when dealing with the exercise of authority by the Secretary of State. That distinguishes it from many other tribunals. Moreover, other fees, such as they are, do not in any way match the magnitude and effect of the fees in the regulations.

Is it claimed that family visits are less important than other matters for which entry clearance is required and which carry a right of appeal in the event of refusal, such as the right of appeal for those on working holidays? A visit by elderly relatives who have never seen their grandchildren or their home and school—and which may take place only once before their death—cannot be equated with the visits of working holidaymakers, yet the latter do not have to pay court fees.

Finally, I am concerned about the precedent that is set by the regulations. Will it mean that the Lord Chancellor's Department will wish to start charging fees for other appeals—for example, those regarding family settlement? That would be a retrograde step. It raises further fears among communities, which would appear to be justified if this approach continues.

In my humble opinion, there seems to be no moral, let alone any other justification for these fees. That is why there is widespread dismay and anger among the British resident ethnic minority communities. Rightly, they have a strong feeling of betrayal. One questions whether it is really worth antagonising so many of our citizens with this measure.

In the interests of the values that have guided this Government in the past, as now—caring for those with limited resources, access to justice for all, non-discrimination against the minority communities and their relatives, social inclusion and, more importantly, the right to family life—I urge them to withdraw these fees and, in so doing, restore people's faith in their intentions towards the ethnic minority communities.

8.45 p.m.

Lord Newton of Braintree

My Lords, I rise to speak briefly in this important debate. I should like to express my thanks to the noble Lord, Lord Judd, for giving us the opportunity to discuss this subject. Perhaps I may say to the noble Baroness in passing that I share her feelings about following the noble Earl, Lord Russell, whose erudition and eloquence I have struggled to match since we first took part in debates together some 40 years ago.

I should mention that I am currently chairman of the Council on Tribunals. It is a role in which I have had the privilege of succeeding the noble and learned Lord, Lord Archer of Sandwell, who has made so many distinguished contributions to the proceedings of this House in that and in many other capacities.

It will come as no surprise, indeed it will not be news, to the House that the Council on Tribunals has consistently expressed general concern about people being charged fees for exercising rights of appeal. In this case, I can perhaps most easily summarise its position by simply quoting from paragraph 1.27 of its annual report for 1998–99, which states: We welcomed the restoration of a right of appeal for family visitors but were disappointed that it was still proposed to charge a lee in connection with such appeals, albeit that the fee would be refundable if the appeal were successful. The fee could make it difficult for some people to contemplate launching an appeal, and we believe that there may be human rights implications". The council is in the habit of choosing muted and measured language, but the flavour of concern in that paragraph is clear.

The council was not consulted on the detail of the regulations that are before the House. That is not a complaint; I merely want to place it on record. Had it been consulted, I have little doubt that it would have chosen to reiterate the concern it had expressed earlier. I acknowledge that this is speculation, because the council has not discussed this matter recently, but it might have wanted to express particular anxiety about the apparent scale of the additional deterrent to oral hearings; that is to say, hearings where the appellant or his relatives can be heard and seen in person, bearing in mind the excellent point made by the noble Lord, Lord Judd, that it is credibility that is at issue in so many of these cases.

The council might also have wished to refer again to a statement at the end of the passage that I quoted about the human rights implications, particularly now that the Human Rights Act has come into effect. I have no doubt that the Government have given consideration to this matter, but it seems especially relevant in the light of what has been said by other noble Lords about the problems that could arise where an appellant has very limited means.

I shall confine myself to the muted and measured language that the council used in its report and is accustomed to employing. I simply say that I look forward to listening with care to the Minister's comments on the important points that have been made in this debate.

Lord Weatherill

My Lords, this has been a Week of long nights, even early mornings, and I shall not detain your Lordships for long—least of all the Minister, who has had a heavy week.

I participate in this debate because, for some 28 years, I represented the constituency of Croydon North East. It is often overlooked that, for about 100 years from 1740, the twin college of the honourable East India Company was in Addiscombe, which was in the heart of my constituency. We therefore had a close association with the Indian sub-continent for many decades. As noble Lords may know, I had the privilege of serving with Indian troops in the last war. I think that I can reasonably claim to have secured my seat in Croydon North East as a result of my declining command of Urdu. I beg your Lordships not to put me to the test tonight. The one phrase that I retained over the years was "Such bolo?"—"Are you telling me the truth?".

I know from personal knowledge about the importance of family to members of the Indian, Pakistani and Bangladeshi communities. I know that they were deeply wounded and upset when the visa appeal system was abolished in 1993. I also know that they were much encouraged when the present Government, in their 1997 manifesto, announced that they would reassess the situation. It is perhaps worth reminding ourselves of what was said on that occasion. The Labour Party's priorities would be to, extend our commitment to the family to our immigration and asylum procedures. It is in no one's interest that close family members are divided by arbitrary and unjust regulations … [and to] recognise that families need to be together for key life events like weddings, births and funerals. At present those refused a visitor's visa for events like these no longer have the right to appeal against the decision. We will restore that right". However, people were not told that the cost would be £500 for an oral appeal or £150 for a written appeal. I suspect that many of those people probably changed their allegiance to vote for the present Government as a result of that commitment. From my personal knowledge, I have to tell noble Lords that they feel let down, misled and even angry.

As the noble Lord, Lord Judd, and others, have said, these charges will deter all but the wealthy visa applicants. I am well aware that the Government claim that there is no new money. However, as the noble Earl, Lord Russell, said, they have, as a result of good housekeeping, a pot of gold from which they could easily find the £10 million that has been mentioned. I hope, therefore, that the Government will listen to what so many speakers have said tonight, and will no doubt say when I have sat down. If it is not possible to abolish these exorbitant fees totally—although that would be ideal—the Government could at least reduce them, so that the poorest members of our society are not deterred. They are the people, not the wealthiest, who deserve our consideration and our protection.

Lord Goldsmith

My Lords, my noble friend Lord Judd was quite right to start by acknowledging that the Government deserve credit for restoring the right of appeal that was taken away by the Conservative administration in 1993. I was not a Member of your Lordships' House at the time that the 1999 Act was started, at least in its earlier stages. But, looking back, I note that my noble and learned friend Lord Williams of Mostyn said, when moving the Second Reading of the Bill, that the previous government had removed that right by the Asylum and Immigration Appeals Act 1993. He went on to say: We think that that was wrong. The measure in the 1993 Act caused great resentment in ethnic minority communities who had relatives living abroad who wished to visit their family here, and Part IV puts that right".—[Official Report, 29/6/99; col. 179.] I am sure that that is a commitment—a pledge—that the Government want to redeem. My noble friend Lord Judd does the Government a great service by having provided this opportunity for them to hear from the noble Earl, Lord Russell, my noble friend Lady Uddin and, indeed, the noble Lords, Lord Newton and Lord Weatherill, how the regulation in this form threatens to create the very resentment that the Government rightly sought to remove.

Two strands have permeated the remarks that have already been made, both of which are important. One of them is the question of cost; the other is the definition of "family". As regards cost, surely it is important that costs should not be a barrier to justice. I am sure that that is what the Government want to avoid. The sums involved are substantial. They may be substantial for someone living on a modest income in this country, but they will be even more so for someone living in circumstances where wages are that much lower.

The noble Earl referred to the Witham case in which, as noble Lords will recall, the question arose as to whether or not regulations dealing with fees in civil courts were lawful. On that occasion, the Divisional Court struck down those regulations because they did not even provide for any remission on the grounds of hardship. It has to be said that I do not find even that exception in these regulations. When he replies, I hope that my noble friend the Minister will be able to explain that and give us some reassurance. In giving the judgment on that case, Mr Justice Laws said, in stark and clear terms: Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically—in effect by express provision—permits the executive to turn people away from the court door". The concern in that case was in relation to courts and court fees. I recognise that it may be said that there are differences between a right of appeal to a tribunal or an adjudicator and a court right of appeal. But I do not regard that as an attractive argument. The fundamental point remains the same; namely, that the Government wanted to give back a right that had been taken away and, therefore, it is right that the opportunity has been taken to hear how concerned people are about whether that is what these regulations will achieve.

The point in relation to the definition of "family" is also important. The noble Earl rightly said that there are two ways of dealing with this matter. By way of example, the Human Rights Act takes the non-enumerative approach to what is a public authority. As I understand it, the fact that the definition of "family" is too limited may be a further cause for resentment in communities where the family is extended in a way that may not fit neatly into the definition provided in the regulations.

This is an important step. It is equally important that people should be confident that the right of appeal has effectively been returned to them. Therefore, I hope that my noble friend the Minister will be able to provide some reassurance that the arguments put forward tonight will be taken into account and addressed.

Lord Dholakia

My Lords, I was very much tempted to deliver my contribution in Urdu for the benefit of the noble Lord, Lord Weatherill. However, I do not think that the Hansard writer would appreciate it. I shall, therefore, continue in my usual way.

Perhaps I may begin by thanking the noble Lord, Lord Judd, for raising this most important issue. The one thing that has emerged very clearly from this debate is the sheer anger of people regarding the way that this particular measure has been introduced. But at the root of this is something that one has to understand: it is effectively creating a culture that says, "We don't believe you when you apply for entry clearance or a visa. If you disagree, you can appeal. But, if you appeal, you will have to find the money". In effect, we are creating a culture that refuses to believe that a large number of people may wish to come to this country as visitors. That is what is behind it.

Those of us who have for the past 30 or 35 years dealt with immigration cases in this country can tell the Minister that there is an insatiable appetite on the part of entry clearance officers to question people from ethnic minorities and to put very little faith in the answers given. The result is the number of appeals about which we are talking. But even that process will be denied to many.

My noble friend Lord Russell started his remarks with an anecdote, so perhaps I may also add mine. At one time, I was involved in the investigation of the immigration control procedures while working for the Commission for Racial Equality. As part of that formal investigation, we were entitled to examine files at British posts abroad. Some of the comments in the files made it absolutely clear that no one would obtain justice, no matter what they tried to do. I do not blame the present Government for that. That occurred in the late '80s.

I refer to a case that occurred in the early days of the entry clearance procedures. We should remember that young people who wanted to come to this country were subjected to questioning. Two young brothers applied to the British consulate in Islamabad for entry clearance. They were given two separate dates for interview. The entry clearance officer gave the elder brother entry clearance and stamped his passport accordingly. At that time all kinds of questions were asked. A few weeks later the younger brother went to the consulate to apply for entry clearance. He was asked the same questions but his answers revealed a discrepancy. The elder brother was asked how many chickens his family kept in their yard. He replied that they kept eight. However, the younger brother said that they had seven. The entry clearance officer did not give the younger brother entry clearance because of that discrepancy until someone explained that the family were so overjoyed to hear of the elder brother's entry clearance that they had slaughtered one of their chickens to celebrate.

That incident says something about the culture that has evolved in this area and the damage that such a culture can cause. I could mention case after case to illustrate the point. I have served in this country as a Justice of the Peace and as a member of a board of visitors. I have taken up cases where entry clearance officers have refused to grant visas to people. My pronouncements as a Justice of the Peace and as a person who has adjudicated on prisoners' complaints are accepted, but entry clearance officers were not prepared to accept my assurances on the genuineness of people's applications.

The culture that emanates from decisions of this nature can be extremely harmful. I ask the Minister to study the report of the Commission for Racial Equality, which contains 54 major recommendations. It will tell him a hell of a lot about how the system works with regard to those from ethnic minorities. We are talking about people who want to exercise a right. How often are people in this country reluctant to pursue a legal right because they do not have the resources to do so? Even if we have the resources, we may be reluctant to spend that money when we do not know the final outcome of our action, irrespective of the strength of our case.

The noble Lord, Lord Weatherill, was right to mention the Labour Party manifesto. Given that a general election will be called in a year or so, what will those who will campaign for the Labour Party tell members of ethnic minorities with regard to the right we are discussing? The point at issue is that fee payments discriminate against poorer people— in this case, people from the Indian sub-continent. There is a deep-rooted suspicion that the Government are indirectly sending out a message that they are not happy with the introduction of an appeals mechanism. That is a shame, because if there is one thing in which this country can take extreme pride it is the machinery—unlike that of any other country in the world—which gives people the right to appeal against a decision which they feel is unjust. Why, then, do the Government want to impose the kind of restriction that may result in people losing that right?

I mention one of the most frightening aspects of the proposal. The Government grant aid to the Immigration Advisory Service. That body makes representations on behalf of people who wish to appeal against decisions of entry clearance or immigration officers. Over 50 per cent of the appeals that have been pursued by the Immigration Advisory Service have been successful. If that is the rate at which people's initial applications have been refused, there must be something wrong with the system. In the case of the 50 per cent of appeals that are pursued by the Immigration Advisory Service, the people concerned have had to fork out money to exercise their right to have their appeal heard. To my mind that cannot be right.

We are not talking about flooding the country with primary immigrants. We are not even talking about asylum and refugees. We are talking about people who want to visit this country, perhaps to attend a funeral or a wedding or to participate in religious activities. We are creating a system whereby we put obstacles in the way of those people. If the procedure is to take three, four or five weeks, no one will apply for visitor clearance to attend a funeral or a wedding as the ceremony will be over long before they get clearance. We are creating a system that penalises people who try to exercise their rights. If this was a matter of primary immigration, I could understand that objections would be raised. However, we are talking about the right of an individual to pursue an application which he or she feels has been unjustly dealt with. I find it difficult to understand how the Labour Party could have produced this proposal.

I remember the late night discussions on the then Immigration and Asylum Bill when the Government advocated a bond scheme. I remember the complaints about the detrimental effect that such a scheme could have on poor people or people from ethnic minorities. The Government did not listen. They said, no, they believed that it would work to the advantage of people from ethnic minorities. After sheer pressure from ethnic minorities the Government had to reconsider that policy.

My advice to the Minister is this. For the sake of £3.2 million—that is overall the revenue the Government would receive—and when considering the harassment that would be caused, remember that one is asking people to pay money which is equivalent in many cases to a year's salary or wages in order to appeal against a decision. How can anyone justify such a decision?

I am conscious of the time. I suggest that it may be appropriate for the Minister to consider the issue and to admit that the Government are mistaken in what they have done.

Lord Cope of Berkeley

I am sure that the whole House—that is, the whole House except perhaps the Minister, for whom we may all have sympathy on this occasion—is grateful to the noble Lord, Lord Judd, for bringing the matter before us today The noble Lord, Lord Judd, has demonstrated the hollowness of the Government's manifesto commitment in 1997. They may have followed the letter of their promise but, as has become very clear in the course of the debate, they have made it meaningless in practice for most of the people concerned. For those involved, this is immigration for the rich—or visits for the rich. If the family budget can afford to risk an extra £500 for the family wedding, funeral, or whatever the occasion is, then welcome to Britain: if not, forget it.

I remember in another place the difficulties of the Bill in 1993. But I can also guess the reason for this policy. Jack Straw wanted to put it in the manifesto, but it was not cleared by Gordon Brown, so would-be visitors must pay in advance and in 28 days. Therefore, of course, there will not be many appeals. In effect, for most of the people involved, this Government have the same policy as the former government but they try to pretend that it is different. This debate has shown up that pretence.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)

My Lords, contrary to what the noble Lord, Lord Cope, might believe, I, too, am grateful to the noble Lord, Lord Judd, for providing us with the opportunity to debate these regulations. I always think that it is right that government should be obliged to explain themselves. This debate provides the perfect opportunity to do that. It has been a distinguished debate, with contributions from many distinguished Members of your Lordships' House. I have taken careful note of all the contributions.

The regulations deal with two questions: first, the definition of a family visitor; and, secondly, the fees to be charged to deal with the administration of an appeal in the event that the application for a visa is unsuccessful. It may be helpful if I explain in broad terms how we expect the system to work. Since 2nd October, people who have been refused a visa to visit members of their family in the United Kingdom have been entitled to a streamlined appeal against the refusal.

The definition of a family member is set out in Regulation 2(2) of the Immigration Appeals (Family Visitor) (No. 2) Regulations 2000. It is widely drawn and includes stepfamily, adoptive relatives and unmarried couples. If I needed reminding, today has made it patently clear that there has been some disquiet about this definition on the basis that it will exclude some people who could be construed to be "family members". But the whole point of this procedure is to ensure that applications are dealt with quickly and the genuineness of the relationship must be able to be assessed without undue delay. The more distant the relationship to the sponsor, the more difficult it is to assess the genuineness of that relationship quickly. Documentary evidence may not be easily available or may have to be obtained from a variety of sources in order to piece together the family tree. Entry clearance officers—they have a difficult job to do—will have to make more extensive inquiries in connection with issues of credibility. The definition must be manageable so that we can process the application and the appeal in time for the visit to take place, otherwise there would be little point in having family visitor appeals.

The fee for administering an appeal in the event of an unsuccessful application has been set at £150.

Earl Russell

My Lords, I respect and understand the pursuit of certainty on which the Minister is engaged, but I ask him to read the Renton report on the preparation of legislation, which explains why the pursuit of certainty in this method is almost always self-defeating. When he has done that, I wonder whether he could ask his department to read it, too.

9.15 p.m.

Lord Bassam of Brighton

My Lords, as always, I am grateful to the noble Earl for his intervention. I shall consider his wise words carefully.

As I said, the fee for administering an appeal has been set at £150. Some 90 per cent of all short-term visa applications are successful. We are talking about only the small percentage of unsuccessful applications.

Lord Judd

My Lords, that is a broad statistic. Given the ethnic dimensions of the debate, is it not important to say a little more about the breakdown of the 90 per cent and the 10 per cent and where the burdens fall?

Lord Bassam of Brighton

My Lords, as always, the noble Lord, Lord Judd, asks a useful and valuable question. I do not have that information. I have only recently managed to get hold of the statistic that I have just given the House. It shows that most applicants are believed and are successful. We are not saying "no" to visa applications. That needs to be borne in mind, particularly as the noble Lord, Lord Dholakia, pointed out that historically the operation of entry clearance officers has perhaps been seen as racist.

Lord Dholakia

My Lords, I did not use that word. I never accused anybody of being racist.

Lord Bassam of Brighton

My Lords, I take that point, but that was the implication of the noble Lord's observation.

I wanted to make it clear that most visa applicants are successful. An appellant can usually expect to receive a decision within six weeks of lodging his or her appeal abroad, if the immigration appellate authorities deal with it on papers alone. An oral hearing is available, but, as it could also involve witnesses giving evidence, it will cost appellants £500 and the appeal will take around three weeks longer to deal with. We believe that most appellants will opt for the quicker and less expensive route. Most applicants will want to know as soon as possible whether to proceed with their plans to visit this country, particularly those wanting to visit for an important event such as a family wedding.

It is also reasonable to suppose that such applicants will apply for entry clearance at least three months in advance. If they do so, there should be plenty of time to deal with any appeal.

I recognise that many of your Lordships are concerned about the decision to charge for family visitor appeals. We have to explain that decision. For a visitor appeal right to be meaningful, appeals must be processed swiftly. Under the new arrangements, family visitors will get preferential treatment. We think that it is right that they should pay for it.

However, providing a priority service has associated costs. Family visits do not have the same fundamental importance for those concerned as some other cases have. For example, asylum applicants often claim that their lives are at stake. Those cases make up the majority of appeals before the immigration appellate authorities. We must not allow those appeals to be prejudiced, even for the benefit of others. It is vital that visitor visa appeals pay for themselves to ensure that the new work that the right of appeal creates does not eat into the resources needed to deal with asylum.

Litigants in most cases in the mainstream civil courts have to pay court fees, which they may recover from the other party if they win the case. The fee will be refunded in all cases when the appeal is allowed. There is no reason for anyone with a good case to be dissuaded on cost grounds. The fees are based on an estimate of the total costs to the immigration appellate authorities of dealing with a projected 19,500 appeals. Those costs include judicial fees and salaries as well as staff costs. The oral fee includes courtroom and interpreter costs, and allows for the fact that the hearing is likely to take significantly longer than the time spent simply on consideration of the papers.

In almost all cases where a fee is charged for government services, that fee is based on the principle of full-cost recovery. Court fees are no exception. There would be no other rational basis for setting the fee level. Nevertheless, when estimating the cost of a new service such as this, there is considerable room for uncertainty. Following this summer's consultation exercise in which we proposed fees from the middle of the range, we decided to base the fees on the lowest possible estimate.

As I said, we expect the majority of appeals to be handled on paper because most people will want a decision to be taken as speedily as possible. If the appeal requires an oral hearing, the appellant may qualify for representation funded by the Legal Services Commission. That funding would cover the appeal fee. Those who seek financial help from the commission will have to meet the relevant financial eligibility and merits test.

All appellants will be eligible to seek the assistance of the Immigration Advisory Service. The services of the IAS are free to all appellants, regardless of their means. They extend to providing representation at appeal hearings, although not to paying the appeal fee. As of May 2000 the cost to the public of providing an Immigration Advisory Service representative was £772.89 per hearing completed.

All visitors who come to the United Kingdom must meet their travel costs. For those who come from outside Europe, those costs are likely to amount to several hundred pounds. In order to obtain a visa at all, they must show that they are able to meet the costs of their maintenance and accommodation while in the UK.

In the past, the immigration system has been prone to lengthy delays. We have done much to rehabilitate it, streamline it, and make it more efficient and more effective. Those efforts continue. However, family visitor appeals represent a large amount of new work. Without new funds, the immigration appellate authorities could be overwhelmed and our much-needed reforms jeopardised. Family visitors themselves would have to endure lengthy waiting times which would ruin their plans to visit.

After a year—I believe this to be an important commitment—we shall review the arrangements and costs and issues such as the definition of what may or may not be a family member. That review period is important. However, for the moment, we have a system that we believe will be not only fair and just, but will work and be sustainable. That must remain the priority.

During the debate a number of questions were asked, and I shall try to work through some of the important points raised. My noble friend Lord Judd raised the question of indirect discrimination. We do not consider that the fees could or would amount to indirect discrimination under the Race Relations Act 1976. First, we are not aware of statistics which show that it would bite disproportionately. I believe that that is an important consideration. Secondly, even if it did bite disproportionately, it would be justifiable. The aim of the fees is not in itself to discriminate; it is to cover the cost of appeals and to allow family visitor appeals to be processed more rapidly. We believe that the level of fees is appropriate to meet that aim.

My noble friend also asked how a person would cope in terms of obtaining legal advice within 28 days. We expect family visitors to be helped by their sponsors. The relationship with their sponsors in the United Kingdom will be very important. I believe that consular advice will also be available and, where there is a question over whether they can make or lodge the appeal within the 28-day period, the adjudicator can be invited to extend that period. Therefore, there is room for flexibility.

My noble friend also suggested that fees marked a significant departure in immigration appeals. I can only reply that Parliament intended fees to be charged when it passed the Immigration and Asylum Act. We made that clear at the time, and that was the view of Parliament.

My noble friend Lord Judd also suggested that this was a new duty to be covered by the Lord Chancellor's Department. The new duty relates to the Race Relations (Amendment) Bill which amends the original Race Relations Act to put the LCD, among others, under a duty not to discriminate. We fully accept that duty.

My noble friend also asked how many appeals so far have been lodged. We do not yet know how many have been lodged overseas. So far, only one appeal has been received at the Immigration Appellate Authority. But the right of appeal applies only to visas refused on or after October 2nd and the 28-day period for lodging such appeals has only just passed.

The noble Earl, Lord Russell, asked about the Witham judgment. This judgment concerned fees restricting the right of access to a court. There is no right of access in this country for family visitors, so Witham does not apply.

The noble Earl also asked how immigration lawyers would be found with LSC contract. It is worth repeating that consular advice would be available. For those with access to new technology, the LSC contract is promoted through its website. I made the point earlier that the sponsor in this country would be well placed to seek information and to guide a relative who is seeking to exercise their right of appeal.

I have answered the point about adopted relatives; they do fall within the definition of family members (Regulation 22) by virtue of the Adoption Act 1976.

The noble Earl, Lord Russell, also asked about appeals and how many appeals one family group should make. We would expect it to be just the one appeal, the outcome of which would decide the case for the other family members.

My noble friend Lady Uddin cannot be here to hear my answer to her point. I shall try to settle one question that she asked, which was whether it was secondary legislation within the spirit of Article 6 of the ECHR. Article 6 does not give a right of access to the courts in respect of immigration disputes. That has recently been confirmed by a judgment of the European Court of Human Rights at Strasbourg.

We believe that these regulations will be workable. We believe that they are just, fair and proportionate. We think that they do conform—to pick up the point raised by the noble Lord, Lord Newton—with our human rights obligations. However, it is open to anybody who believes that they do not conform with these, to make an appeal based on the application of the Human Rights Act. Of course that would be a more narrowly confined basis for a case.

I have listened with great interest to all points raised during this debate. It has been a distinguished one. It is right that these matters be aired now. I have given a commitment, in your Lordships' House, that these regulations will be kept under review. I would also be grateful to any noble Lords who, outside the confines of this debate, would care to raise any particular concerns with me about how the appeals system works. We would find that most helpful and constructive. This debate has been very useful and we shall reflect on the important points and criticisms made of the new system.

For my part, as a government Minister, I am proud that we have stuck by our manifesto commitment. It was an important one. I disagree with the noble Lord, Lord Cope, that this is a measure which undermines that commitment in any way, shape or form. People will see and understand this as giving effect to that manifesto commitment. It was utterly shameful that the original appeals system was abandoned in the way in which it was. We have done all that we can to right that wrong and much more in the field of race relations. I am proud of that fact too as a Minister.

Lord Goldsmith

My Lords, before the Minister sits down, both the noble Earl and I raised the question of remission or mitigation in the case of particular hardship. Do I understand from what my noble friend said about the Witham judgment that that is not something which is even to be considered? It did not seem to me that the regulations at present permit that, although it may be that there is some way of achieving it. It may be that my noble friend would prefer to answer that at some other time, and if so I am happy for him to do so, but I wanted to raise that matter.

Lord Bassam of Brighton

My Lords, I can give an answer to your Lordships this evening. The noble Lord's understanding of the regulations and the legislation is accurate. The provision does not permit remission of the fees in those circumstances. I gave a commitment that we shall be reviewing the fee levels within the next year. Perhaps that is an issue that we should also take into account as part of that review.

Lord Judd

My Lords, first, I repeat how much I appreciate the fact that the Minister, with all the pressures that are on his time, has come here tonight and has listened in his characteristically patient way. I thank him also for the very full way—he always does this—in which he has tried to respond to the points made.

I am extremely grateful to all those who have participated in the debate. My noble friend was right to say that there have been speeches of distinction and significance. I am sure that he will have noticed that not a single speech was in support of the present situation. Every single speech from all parts of the House questioned the present situation.

Anger has been referred to, and it is important to notice that it has been anger not only on the part of the communities who were told that they were to have this right of appeal and then found this financial barrier to what they believed was their right but on the part of the people working with them in this country. It is significant that more than 1,000 of the people working in the citizens advice bureaux attended their annual general meeting and voted unanimously against the policy because of what they are encountering in the work that they are doing in the front line.

It is terribly important that the Government should listen to what been said in this debate and what we have been trying to represent as the feeling outside this House. I hope that my noble friend will draw this debate to the attention of my noble and learned friend the Lord Chancellor, because it is important that he should focus on what has been said this evening and what is felt by many of those for whom we have been trying to speak tonight.

I shall withdraw the Motion. I have heard what my noble friend—and he is a friend—has said about reviewing the situation. He talked about flexibility. I hope that the Government might be more flexible and say that they can conduct the review before the end of the one-year period. I do not see why they must stick rigorously to that. I should hope that the situation could be reviewed much more rapidly than that.

The point with which I wish to conclude is that I do not doubt my noble friend's deep personal commitment to good race relations. I do not question my noble friend's commitment to his vision of what society should be. And I do not question the Government's commitment either. But we must recognise that if there is rhetorical aspiration and the practical experience of people is not in tune with that rhetorical aspiration, the situation becomes more bitter, not less. Therefore, to make a success of race relations in this country and to make a success of the aspirations which are expressed by the Government it is essential to have effective policies which demonstrate at all levels that when we wish the ends, we also wish the means and are determined to provide them. I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

House adjourned at twenty five minutes before ten o'clock.