§ 5.11 p.m.
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Alport) in the Chair.]
§ Clause 10 [Visitors, short-term and prospective students and their dependants]:
Earl Russell moved Amendment No. 47:
Page 7, leave out lines 29 and 30.
§ The noble Earl said: This clause is concerned with denying rights of appeal to people refused entry clearance. The particular words which the amendment seeks to delete apply to persons who enter the country with the intention of studying but without having been accepted for any course of study. Those people, if refused entry, are to have no right of appeal.
§ I have no wish to criticise immigration officers. But they are not infallible. They are not like the legendary professor of theology who is said to have refused the papacy because he would not give up his infallibility. Twenty per cent. of immigration appeals are successful. So the possibility of error exists. In moving the amendment, I want to wear one of my old hats, that of the director of graduate studies in the history department of a major American university—in this case Yale.
§ It is one of the sensible principles about legislation stated by Aristotle that people should be subject to the laws that they make. It is a little difficult to apply that to immigration law. I have occupied a position where I would be dealing on the receiving end with the effects of the Bill. I was responsible for advising some 60 graduate students working for Yale PhDs. About half of them were working on the history of countries outside the United States. Immigration questions arose from time to time. It was quite vital to those people, who were not accepted for any course of study in this country because they were working for American degrees, to be able to enter the country to whose history they had chosen to devote their careers.
§ In the United States, one understands quite quickly that the political importance of any country has something to do with the amount of work done on its history and culture. The patronage structure of Washington makes that very clear indeed. The standing of Britain in the United States has a great deal to do with the study of Britain's history and its culture. The declining place of British studies in United States' universities is a diminution of British influence. One might observe that the increase of German influence in the United States has a great deal to do with the amount of patronage given to the study of German history and literature. So if the study of our history is diminished, that will diminish our political influence. I believe that Clause 10 will accelerate that process.1025
§ From time to time Yale graduates got into trouble in foreign countries. It was necessary to make phone calls, write letters and make all the usual representations. But Yale is a proud place. It took for granted that its graduates who were refused entry to anywhere had a right of appeal. Yale expected to be able to use its network of contacts to try to give force to that appeal. The refusal of any right of appeal will be viewed there as a snub of the sort that a university of Yale's standing should not take lightly. Had I been there and facing this Bill, I would not have seen it possible to argue against that view.
§ In that job one came to recognise a list of difficult countries. There were certain countries to which one did not encourage people to go. In the middle 1980s, Romania and Iran were widely recognised as impossible. Others, such as the former Soviet Union, Zimbabwe or Nicaragua, were widely recognised as difficult countries. One mildly discouraged the study of topics which took people to them. The passage of this clause would add the United Kingdom to the list of difficult countries. If I were advising Yale graduate students again, I would have to advise them accordingly. That would be a great diminution of our national influence in a university which has produced the last two Presidents of the United States. That seems to me to be against our national interest.
Moreover, the clause does not deal with applicants for asylum. It deals only with those who somebody fears might perhaps at some future date apply for asylum. It reminds me of the late Sir Alan Herbert's epitaph on an archbishop:
My predecessors, fighting sin,
Did their best to bring men in,
But I was best without a doubt
At keeping the unworthy out.
So when I died, the Church was one,
And that was me".
I beg to move.
§ 5.15 p.m.
§ Lord Campbell of Alloway
The debate on the amendment moved by the noble Earl affords the first occasion at Committee stage to consider control of immigration. I shall take my broad approach to that from the Conservative manifesto, which says:We are determined to maintain our present system of immigration controls unless we have evidence that other arrangements would be equally satisfactory and cost-effective".On that basis, first of all I question, with the utmost respect, whether Amendment No. 47 would in fact achieve the intention of the noble Earl.
The present system of general application operates under Section 13 of the Act of 1971 and the Immigration Rules. So the question is whether other arrangements, including the proposed amendment, are equally satisfactory and cost-effective compared with that excellent system. It is respectfully suggested that such is not the case on either score. Subject to what is said by the Committee today, Clause 10 should not stand part as amended by Amendment No. 47, or for that matter as amended by Amendments Nos. 48 or 49.
1026 At one time I would have supported Amendment No. 49, in which subsection (3B) incorporates Amendment No. 50 which stood in my name. I have since changed my mind in the hope that in the light of our discussion, my noble friend the Minister will be able to take back Clause 10 for further consideration.
Clause 10, as it stands, is a derogation from Section 13. It fails to ensure, in accordance with the assurance of my noble friend the Minister on Second Reading, that applications for entry are dealt with fairly. In the result it will cast an unacceptable burden upon the judiciary, as explained by three noble and learned Lords at Second Reading, at no little inconvenience and expense. Amendment No. 47 seeks to exclude category (c). The effect of that exclusion would be to confer a right of appeal under Section 13 of the Act of 1971 upon that category when no such right applies for categories (a), (b) and (d). That is why I suggest that the amendment might not achieve the intention for which it is advanced.
It would not be acceptable especially as regards category (b)—the student accepted for six months. I do not need to go into detail for one need only refer to the Oxford Dictionary to see that in practical terms the only effective distinction between paragraphs (b) and (c) is the six months' acceptance.
As regards any rights of appeal, surely category (b) should be accorded priority over (c), or at least equal treatment, which is the yardstick by which I seek to measure my contributions. The amendment concerns both entry clearance, where requisite, issued outside the United Kingdom and leave to enter the United Kingdom on arrival without an entry clearance, when such entry clearance is not requisite. As I understand it, that was the burden of the noble Earl's contribution.
§ Lord Beloff
I do not wish to follow my noble friend Lord Campbell of Alloway in widening the debate. I rise only to point out that in my view, with some experience of American universities, what was said by the noble Earl, Lord Russell, is unanswerable. The distinction between that and being admitted to a course of study may be evident to those of us who know about universities and research, but not immediately evident in a favourable way to an immigration officer. He may know what is meant by a course of study, if not at university level, then in relation to a school or college. But the question of being admitted in order to pursue studies for one's home university, which is an essential part of international academic comity, is something which the Committee should ensure is not threatened even in a minor degree.
§ Baroness David
My name is appended to the amendment and I support also what was said by the noble Lord, Lord Beloff. At Second Reading I spoke about the position of students under the Bill and how they would be deterred. It would be a pity if we did not encourage overseas students to come to this country as much as possible. They are a great help to us and carry the word overseas. We should do everything we can to encourage them. We know from the number of appeals granted, mentioned by the noble Earl, that if 1027 the right of appeal goes a great many people who should be granted entry into this country will not obtain entry.
Before January 1989 immigration officers were restrained from making some arbitrary decisions because they knew there was a strong possibility that those decisions would be reviewed by a Member of Parliament and eventually reversed. After that right of intervention was removed, airport refusals increased significantly. If the present right of appeal is removed, then it is logical to assume that entry clearance refusals of the targeted groups will increase. That is to be deplored and I strongly support the amendment.
§ Lord McIntosh of Haringey
Two Members of the Committee referred to American universities and made a particularly valuable argument in favour of the amendment. I should like to add to their remarks from my own American experience. When I finished my undergraduate degree I thought I should like to go to an American university. I wrote to all the American universities I had heard of, including Yale. They all turned me down. I assumed that all the states that I had heard of had universities and wrote to all of them. Eventually, Ohio State University, which turned out to be one of seven state universities, gave me a fellowship without interviewing me.
I was fortunate. I was able to obtain a paid place at an American university without being interviewed there. Yale, Harvard and the other more prestigious universities would have required me to go there and be interviewed. That is exactly what the amendment is concerned with. It would remove paragraph (c) and so remove the right of appeal against the decision of an immigration officer who was confronted by somebody who wanted to come to a British university but could not achieve entrance to a course of study, British university or college without an interview here. Surely it is a modest improvement to suggest that people should be allowed in for interview even though they have not yet been accepted.
The noble Lord, Lord Campbell of Alloway, widened the issue, understandably, into a general objection to Clause 10. I sympathise with much of what he said. When we approach these matters it is our practice to try and deal with particularly outstanding injustices in legislation and see whether there is any movement on the part of government. As the noble Lord will know from looking at the Marshalled List, we go on to criticise the whole basis of Clause 10. I look forward to his support. However, as a revising Chamber it is our duty to seek specific changes to a clause and not to subsume all of our activities to taking out entire clauses.
I support the amendment. I hope that it can be taken quickly and that we can move as soon as possible to the issue of Clause 10 as a whole.
§ The Lord Bishop of Ripon
Like the noble Lord, Lord Campbell of Alloway, I should like to make some comments about the whole of Clause 10 and would follow the argument that he put forward. Each of the categories can have good arguments made out for them. Nevertheless, the case made by the noble 1028 Earl, Lord Russell, for category (c) is a strong one. I shall be interested to hear what the Minister says in response. I support the amendment.
§ Lord Mishcon
My contribution will be short. If a course of study that a student comes to this country to follow happens to be on our legal system, I should hate his first lesson to be that he has no right of appeal.
§ Lord Monson
Perhaps I can suggest that it would greatly help Members of the Committee to make up their minds as to the desirability or otherwise of Amendment No. 47 and indeed other amendments to Clause 10 if we knew how other advanced democracies act in the matter of admission of students and short-term visitors. For example, do the United States, Australia, Japan, Switzerland and France—to name a few at random—grant the right of appeal against refusal of leave to enter? Do only some do so or none? It would greatly help if either the noble Earl, Lord Russell, or the noble Earl, Lord Ferrers, could say.
§ Lord Hylton
It is already clear that there are severe problems at the level of university study. I am sorry to say that there are also severe problems at the level of courses of less than six months' duration.
It has been brought to my notice by religious bodies in England that in recent years immigration officers have been doing their utmost to refuse entry and admission to people such as ordinands in overseas countries. I heard of the case of a lady who was the director of an orphanage in Nigeria. Immigration officers seem to be taking that attitude on the grounds that while following such a course those people may change their minds and decide to remain in this country. In the cases quoted the evidence was slight or non-existent. Those people already had return tickets before proposing to come here. I hope that the Government will look closely at that specific question as well as the whole question of Clause 10 and perhaps have some considerable second thoughts.
§ Lord Boyd-Carpenter
I find the amendment difficult to justify. The intention of studying but without having been accepted for any course of study would enable anyone to say, "I have come with the intention of studying." There would be no conceivable check on them. They would not need to say that they had been accepted by a specific university. They could simply say, "I have come and I intend to study." That seems to be a quite impossibly easy way of getting through our very necessary controls. I hope that my noble friend will reject the amendment.
§ Lord Tordoff
That is not what the Bill says. The amendment is all about the right of such people to appeal.
§ 5.30 p.m.
My noble friend Lord Boyd-Carpenter is absolutely right. We have heard a great deal about the loss of university students, and so forth. I want to make it perfectly clear that we have always encouraged students to come here. Nothing in Clause 10 will make it any more difficult for a student or a 1029 prospective student to be granted a visa or leave to enter. I do not believe that these changes will make the genuine overseas student—that, presumably, is the person about whom the noble Earl, Lord Russell, is concerned—any less inclined to choose the United Kingdom as a country in which he wishes to study. One must remember that a decision for a student to come to the United Kingdom is much more likely to be based on the quality and the relevance of the courses which he is going to study than on whether or not his right of appeal for entry should be refused.
The noble Earl, Lord Russell, said that he would have to advise his students that the United Kingdom is one of the more difficult countries to enter. I just hope that the noble Earl will not do any such thing. He would be misdirecting them. My noble friend Lord Beloff said that the case is unanswerable. What are we looking at? The noble Earl, Lord Russell, was concerned about people coming to university, and so forth. But they are not covered by this provision. All paragraph (b) in Clause 10 refers to is those who follow a course of study of not more than six months' duration. It is those people who come or who may apply to come saying, as my noble friend Lord Boyd-Carpenter said, "I am going to study" who will be caught by this and not the person who comes to a university for a long period of time.
What are we trying to do here? All Clause 10 does is to seek to achieve a streamlining of the immigration appeals system by distinguishing between those decisions which have the most fundamental impact on a person's future life and those which do not. All three categories in this clause—visitors, short-term students and prospective students—are people who are admitted to the United Kingdom for a maximum of six months with no automatic expectation that they will be allowed to stay longer at the end of that period. I suggest that if we retain appeal rights specifically for short-term or prospective short-term students while we take them away from visitors, we are likely to encourage an increase in the number of people who will falsely claim to be students. They may well come with supporting documents from dubious colleges. That would be undesirable. I can only repeat to the Committee that the purpose is that only those people who come for a period of less than six months will be caught by this provision and not all students.
§ Earl Russell
I thank the Minister for that reply and I say to the noble Lord, Lord McIntosh of Haringey, that I never said that Yale was infallible.
The Minister is still thinking of people who are admitted to courses at British universities. I was talking about people taking degrees of foreign universities which compel them to study in this country. It was perfectly normal for people in the last few months of their PhD to need to come back to this country for a short period to check a few final points without which the work would not be concluded. Those are the people who will expect a right of appeal. I warn the Minister that the first time a black American student is denied leave to appeal after being refused the right of entry we risk provoking a bonfire of the vanities. I ask the noble Earl to take the advice 1030 of his right honourable friends at the Foreign Office before we consider this again. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)
The next amendment is Amendment No. 48. Should it be agreed to I shall not be able to call Amendment No. 49 owing to pre-emption.
[Amendment No. 48 not moved.]
Lord Ackner moved Amendment No. 49:
Page 7, line 33, leave out from ("not") to end of line 35 and insert ("without first obtaining the leave of an adjudicator be entitled either to appeal against a refusal of an entry clearance or to appeal against a refusal of leave to enter when at the time of the refusal he failed to hold a current entry clearance.
(3B) Leave to appeal under this section may only be granted by the adjudicator if, on the evidence adduced, it appears that any grounds upon which leave to enter was refused as unjustified by the immigration officer may have been erroneous." ")
§ The noble and learned Lord said: Perhaps I may start by making a short reference to the aetiology of this amendment. At Second Reading I congratulated the Government on their change of heart in allowing asylum seekers a right to a proper opportunity to appeal. Their generosity was quickly repented because in order to provide the resources for that gesture they proposed to withdraw a right of appeal that had existed for more than 20 years. I expressed my sympathy for not wishing to accord such applicants the full right to obtain the advantage of the entire judicial process and I suggested a via media; namely, that there should be an entitlement to apply to an adjudicator for leave to appeal and that if the adjudicator, having considered the matter, refused that leave, that would be the end of the matter. It was to be a simple filter process of the kind that we apply to certain county court decisions, to the Court of Appeal and to appeals against sentences from the Crown Court to the Court of Appeal Criminal Division. I accordingly tabled Amendment No. 49.
To that was put down an intention to seek to amend my amendment, which is found in (3B):
Leave to appeal under this section may only be granted by the adjudicator if, on the evidence adduced, it appears that any grounds upon which leave to enter was refused as unjustified by the immigration officer may have been erroneous".
Rather like the fourth amendment to the Motion which we heard today in regard to the committee on medical ethics, I took the view that that was adequately implied, but I was also advised that amendments to amendments cause confusion. Therefore, to ensure that there was no confusion, I adopted the amendment which had been put in by the noble Lord, Lord Campbell of Alloway.
§ When I looked at the Marshalled List I saw that his name, which I had expected to find there, was absent. I then had a sudden and traumatic recollection of an idiosyncratic Chancery Judge, Mr. Justice Roxburgh, who many here may remember. When one sought to justify one's statement of claim or one's statement of defence he would point out very persuasively that it was in error and required a significant amendment. If one was foolish one fell into that trap and obtained his gracious leave to amend as he had suggested. He 1031 would then point out, slowly and deliberately, that the amended result puts one entirely out of court because one no longer disclosed a cause of action or defence, and that was the end of one's case. I wondered whether, not seeing the name of my noble friend Lord Campbell, I had fallen into a trap. However, he has explained that he has had second thoughts, though I know not yet quite what they are. That is a treat to come.
§ The basis for this amendment is a very simple one. If the noble Earl had been able to say that immigration officers are infallible, we would probably have doubted it. But if he had produced statistics showing that out of the number of applications for leave to appeal followed by the appeals they were nearly all failures, one could understand that he would wish to say that appeals are a waste of time and that he was cutting out a waste of time. But he is not, understandably, in that fortunate position, because we know that one in 5.4 cases—around 1,400 cases last year—succeeded on appeal.
§ Therefore, there is to be removed a right of appeal which has existed for over 20 years and which has proved successful in a high number of cases. Added to that, if one gets it wrong in one case in five when there is a right of appeal, one can be tolerably certain that future statistics will more likely show that it has been got wrong in one out of two cases or one out of three, because, consciously or subconsciously, without the opportunity to have a decision scrutinised, arbitrariness tends to become part of the decision process. One has not got a judge or adjudicator looking over one's shoulder as one comes to a decision. One has the supreme position—rather like that which, subject always to what goes on in Europe, we enjoy in the Appellate Committee in the House of Lords—that there will be no one except the professors to criticise one's decisions. That is the second point.
§ The third point is very important. Without a supervisory process one will get variations in decisions which will not be apparent and cannot be controlled. It will not come to light that irrelevant matters are being taken into consideration in one area and ignored in another. The fourth point is that it will have an infectious effect on the person who has an adverse decision. He will be tainted; it will be on his passport; future applications will be prejudiced and what may be worse, when he seeks to go to another country which pays great respect to our judicial system, they will say, "If in England you have failed with all their procedures as regards natural justice and the like, then you really cannot be an acceptable person".
§ Lastly, I come to a point which has already been referred to. Inevitably this situation will involve an increase in the number of applications for judicial review. If the applicant is told, "You are refused permission" and he has no other avenue open to him and he is convinced that the decision is a totally unreasonable one, then he will be forced into an application for judicial review. That will produce the counter-production which a number of the clauses in the Bill produce and which I referred to in the past; namely, that it will cause delay in dealing with that 1032 person's application and result in further clogging up of already clogged up lists in the Divisional Court and subsequently in the Court of Appeal.
§ I know that the noble Earl's eyebrows always go up when I use this phrase: all that is being sought is a very modest amendment to the Bill. In this amendment I am not seeking a right to appeal, but merely that there should be a right to apply to a person of judicial experience in this field (an adjudicator) for leave to appeal. He will receive the documents and any additional papers which the immigration officer may not have. He will be able to say to himself, "This is a clear case where the refusal was justified" and that will be the end of it. Alternatively, he will say, "There is something odd about this. The application is backed with a personal letter from the noble Earl or some impeccable references. Something must have gone wrong and this matter should be dealt with by the appropriate appeal tribunal".
§ To deal with that decision on paper would take an experienced officer a matter of minutes, if that is not an exaggeration. The strain on resources would be virtually nil and certainly not enough to justify taking away an established right. This is very important. We are not seeking a new right which will involve resources: we are seeking to protect a part of an established right which will reduce the demand on resources while still maintaining what this Government have always emphasised—namely, access to justice. I beg to move.
§ 5.45 p.m.
§ Lord Ennals
I support the noble and learned Lord, Lord Ackner, in every word that he has said. I go further. When we come to decide whether Clause 10 shall stand part of the Bill, I shall certainly support my noble friend on the Front Bench. In a sense, that is a fall-back position, but, as the noble and learned lord has said, it is an extremely important fall-back position. His figures and mine may be slightly different. I have a particular interest in the Indian sub-continent. I understand that there were about 1,700 successful visit appeals from the sub-continent last year. Those appeals must have had some validity or they would not have been accorded. One can only assume that all those people would not in future have the right to come as visitors of whatever type to this country unless such an amendment is carried. The majority of these visit applications relate to temporary family reunions and include marriages, funerals, other family matters and, in some cases, are made to enable a grandparent, for instance, to visit family not seen for 10 or 15 years.
Where their relatives have settled in this country, a large number of people from Bangladesh, India and Pakistan are asking not to come and live here but to have a temporary visit to see those relatives. It would be unlike this Committee to deny that kind of family relationship, which we would all support. We are thinking of grandmothers, grandfathers, mothers, fathers, sons, daughters and all the relatives of families established in the United Kingdom. Many of them have been visiting here for over a generation. Many of them are second and third generation visitors here.
1033 Their relatives here have the right to appeal for all kinds of other issues. Such appeals and judicial examinations exist for those who are unhappy about their income support entitlement, invalidity benefit, dismissal from employment, housing benefit and even the council tax. For those people, how much more important is it that they should be able to have a relative to visit them for what may be a comparatively short but very precious time? It would be hard if the Government were to say no to what the noble and learned Lord called a very modest amendment.
I agree with him that, if this appeal mechanism were removed, then the only remedy would be to apply for judicial review or to write to the Member of Parliament concerned or a Member of this House. I believe that those in another place would find themselves deluged with letters of representation each of which would require several hours to be spent in the preparation of correspondence from the Member and a reply from the Minister. That would apply in either House. The Minister would need to have access to the original papers used by the entry clearance officer, thereby bringing much more work upon the often overstretched entry clearance staff.
What is being proposed is the abolition of a system of appeals which has been in place for over 20 years since 1971. It is often cited in support of the abolition of appeal rights for visitors that they constitute half of all the outstanding appeals. That is true, but the irony is that visit appeals are the quickest to complete, taking on average an hour and a half rather than many hours. Perhaps it will be necessary to increase the number of adjudicators slightly in order to remove the backlog, but that minimal increase in government expenditure is nothing compared with the loss of a fundamental right—the right to an appeal considered objectively by a person acting in a judicial capacity.
My hope is that the Minister will accept this modest amendment and that it will be seen as part of our wish for natural justice. If the amendment were not to be carried, I believe that that would be to the detriment of good community relations, good race relations and, indeed, good family relations in this country. I hope that the Government will think again.
§ Baroness Flather
I, too, wish to add my support for the amendment moved by the noble and learned Lord, Lord Ackner. To say that I am deeply concerned about Clause 10 is an understatement. I have been involved in immigration cases for over 20 years. I have sat in on interviews in New Delhi with people who are seeking to enter this country. I have spoken personally to entry clearance officers on behalf of potential visitors. I say all that to show that my fears about possible unfair refusals are based on some degree of personal experience and knowledge.
I believe that I am also in a good position to speak on behalf of those of us who are lawfully settled here, but whose origins are in the Indian sub-continent. Lately much has been said about the Asian family—and its ties do extend much further along the line and its bonds are much stronger than those of some other families. As the noble Lord, Lord Ennals, has said, it causes great unhappiness and hardship when 1034 members of a family are not allowed to come here to attend weddings or other special occasions—that is especially so with regard to funerals. Sometimes members of a family wish only to have a short holiday with their relatives here. It is a matter of great pride to people living in villages in, say, the Punjab that some of their relatives are settled here and doing extremely well. They wish to come here to share that prosperity and to take something back with them from this country.
As it is, a set of criteria has developed and, to the best of my knowledge, practically no unmarried young person from the Indian sub-continent can come here as a visitor at present. No doubt some of those cases are the very ones which are allowed on appeal. Without putting in place any measures which would provide a mechanism to review the decisions of the entry clearance officers, I believe that the Government are proposing to give those officers the sort of powers that cannot be acceptable in a liberal democracy.
I urge my noble friend the Minister to accept the amendment. It will provide sufficient safeguards—they are built into it—and there will not be a wholesale appeals system as there is now.
§ Lord Campbell of Alloway
I shall be very brief. The amendment serves to mitigate the disparity of treatment as regards the four Clause 10 categories compared with Section 13 of the 1971 Act, which is of general application. As regards the refusal of entry by an immigration officer, I wholly support the provision as it stands and, indeed, had some part in its composition. However, as regards refusals of entry clearance, I think that your Lordships may consider that a review procedure which fully complied with the requirements of natural justice, which was conducted either abroad where the entry clearance is sought or at the Home Office here, and where a reasoned decision was given by somebody who oversaw the original refusal, would suffice. As drafted, this provision cannot make accommodation for that proposal—and that is the only reason that my name does not appear on the Marshalled List in support of it.
§ Lord McIntosh of Haringey
In moving the amendment, the noble and learned Lord, Lord Ackner, described it as a modest amendment—and I think that he is right in that. The provision of recourse to an adjudicator is not the restoration of the right of appeal which a number of noble Lords have expressed a desire to see. That right would be restored only if Clause 10 as a whole were to be left out. However, it is worth examining this amendment and considering on what basis the Government could conceivably resist it.
It must be said that the adjudicator filter is a very narrow filter. It is not like an appeal in which the case has already been argued at first instance, as would be the case in a magistrates' court or a county court. Under those circumstances, there would be a fairly full rehearsal of the merits and demerits of the case which the adjudicator would be able to take into account. What the adjudicator will see when he decides whether leave to appeal should be granted is not much more than an interview and the representations of the 1035 applicant. That is why, although we shall support the noble and learned Lord if he chooses to press his amendment, we must be obliged to continue with our opposition to the clause as a whole.
§ Lord Woolf
I addressed your Lordships on Second Reading and I can add very little to what my noble and learned friend Lord Ackner has said with regard to his amendment. As I understand the amendment, it is designed to achieve much of what the Government seek but without impinging on the rights of individuals to the extent that would be the case if Clause 10 stands in its present form. As I understand it, the purpose of Clause 10 from the Government's point of view is two-fold. It is, first, to streamline the immigration appeals system as it exists at present. I use the word "streamline" because it was the word used by the noble Earl a few minutes ago. As far as those who are caught by Clause 10 are concerned, it would not be a case of the appeal being streamlined, but of the appeal being removed. Those who were present on Second Reading will remember that the noble and learned Lord, Lord Donaldson of Lymington, pointed out that, although from time to time we have had severe problems with regard to appeals in the courts, we have not yet resorted to the device of removing the right to appeal so as to meet that problem.
The other reason, as I understand it, for the proposal is the saving of expense. We are told in the notes to the Bill that the saving will be in the region of £1.2 million. That is a substantial sum, but, when considering it, we must take into account the disadvantages that will flow from the present clause. It is proposed that instead of the review that would be given by an independent adjudicator, there will be a review by an official. I do not understand at the moment why that should be a cheaper process than the review which is proposed by the amendment. As my noble and learned friend Lord Ackner explained, the review would merely be a review by an adjudicator on paper to see whether there was anything in the appeal.
The other aspect that I fear has not been taken into account—it is an aspect that must worry all judges—is the impact upon judicial review. Alas, as has been made clear on more than one occasion by my noble and learned friend the Lord Chief Justice, we are at present short of judges. In particular, we are short of judges to deal with applications for judicial review. The application for judicial review is the ultimate defence of the individual when he finds that he is the subject of unlawful administrative action. That the courts' ability to remedy that problem should be impinged upon as a result of an official having to perform a function which was previously performed by an adjudicator, does not make good sense.
This is an amendment designed to achieve at least the minimum of justice for the individual who feels, for very good reason, that he wants to come to this country for a short time. The noble Baroness, Lady Flather, has explained the family reasons that can make it important to an individual who is abroad to be able to make a visit. If one has sat in court hearing applications for judicial review, as I have, one can 1036 have no doubts about the genuineness of some situations where, unfortunately, through administrative error a visitor is refused access to this country. I urge the Committee seriously to consider the amendment.
§ 6 p.m.
§ The Lord Bishop of Ripon
Clause 10 is a new provision which was not in the previous Asylum Bill and which does not relate directly to asylum seekers, but rather to visitors and students. The effect of the clause is to remove the right of appeal from those refused a visa by an entry clearance officer, or, for those not requiring a visa, from those refused entry on arrival. I understand the Minister's anxiety that there should be proper provision to screen those who wish to come to this country. That is not in dispute. What is in dispute is whether the screening process which would be left, were there to be no right of appeal, is sufficient.
I seem to remember that on Second Reading the Minister referred to those in the category of visitors and students as perhaps not being in as great a need as asylum seekers. Nevertheless, they are in situations that are of great importance to them. The noble Baroness, Lady Flather, referred to family occasions. I wish to refer to one small category of student to which the noble Lord, Lord Hylton, has already referred: those who come to this country on an exchange from churches overseas to churches in this country to follow brief courses of study. Such exchanges are arranged only with the agreement of the overseas church. Their purpose is the strengthening of church leadership overseas and the development of good international relations. The financing of such scholars is guaranteed by the decisions of relevant committees or sponsoring bodies in this country before invitations are sent.
There is a standard procedure, including a letter which those who wish to obtain a visa take to the entry clearance officer to obtain that visa. There is some evidence that the whole system is now under greater strain than it has been in the past, to such an extent that the Council of Churches in Britain and Ireland is contemplating writing a letter to the Secretary of State for Foreign Affairs to obtain some clarification of the position. It appears that those who were previously granted visas for such purposes are now finding it increasingly difficult to obtain one. The definition of a genuine student is not clear; nor is it clear what documents have to be supplied by those overseas to support their visa applications.
There is some evidence that accounts are now required from sponsoring bodies in this country to support the applications. It is clear that it is becoming increasingly difficult to obtain a visa. In those circumstances, the right of appeal is one that should remain. In arguing for that, I follow the noble and learned Lord, Lord Ackner, who commented on that point, and gave one or two examples to support his argument. First, to be granted a visa, an applicant has to show the legitimacy of the occasion of the visit, whether as visitor or student, and—this is the most important factor—an intent to return.
1037 The problem is that an intent to return is by no means easy to prove. How does one prove that one intends to return, apart from saying that one intends to do so and producing documents to support that intent? But it is open to an entry clearance officer to say that he does not believe that that intent is present. It is difficult to argue against such a subjective conclusion. I shall give two examples. The first relates to an application for a visa from a young Tamil teacher from Sri Lanka who was accepted for a course of study at the Westhill College, Selly Oak. He was refused a visa, and the ground of that refusal was that the entry clearance officer was not satisfied that he was able, and intended, to follow a full-time course of study, and intended to leave the country on its completion.
Further inquiries were made, and it appeared that the grounds of refusal were that if that young Tamil teacher, Mr. Nadarajah Gnanaponraj were to go, his young wife who was pregnant could not be refused a visa if she wished to apply for one. The High Commission was not convinced that the couple intended to return to live in Jaffna where there was a war. That is the entry clearance officer's subjective judgment. It has nothing to do with the intentions of the family involved.
I can give another example of subjective judgment. A case was reported by a CAB of a Jamaican woman who wanted to come to this country for a six-month holiday. She had an aunt in this country who was willing to pay for the ticket and provide her with financial support and accommodation during her stay. However, the immigration official did not consider that her circumstances were such as to encourage her to return to Jamaica. One of the reasons given to justify that decision was that the air fare, which would be borne by her aunt in this country, could be better spent on improving her circumstances in her own country. That again is a subjective judgment by the entry clearance officer. It has nothing to do with the applicant's intent.
My argument is that, with that element of subjectivity, it is inevitable that a great deal depends upon the immigration officials, and if they are not subject to some kind of external review, that element of subjectivity is difficult to control. Furthermore, I argue, as did the noble and learned Lord, Lord Ackner, that there will inevitably be inconsistent responses to applicants who produce similar documents. Again, there is evidence from the Council of Churches in Britain and Ireland that that is the case. I shall quote one of many cases that I have been given. A lady from Ghana, Mrs. Esther Neequaye was invited in September 1991 by the bursary scheme of the Evangelical Fellowship of the Anglican Communion to join her husband who was reading for a degree in theology at St. John's College, Nottingham. She took with her documents similar to those which other applicants had taken—the standard sponsor's letter—and she was then asked for a letter guaranteeing financial maintenance. That was supplied. Confirmation of the authenticity of that letter 1038 was provided, but the application was refused. Other applicants, apparently with similar documents, were admitted.
With that inconsistency of response, it is clear that there must be recourse to some kind of appeal system. There is at the moment a lack of guidance as to what evidence needs to be provided. With the autonomy of the officials who make decisions, it becomes impossible to ensure that applications are treated alike.
A further argument is that for those who find that their visa applications are refused, there is the added difficulty that another application is likely to be treated much less favourably. Once again, let me give an example of such a case. Again, it is a case from the citizens advice bureau. A Jamaican visitor was refused entry on arrival in the UK at Gatwick. He had a letter from his employer which allowed him to remain away for a two-week period but he was refused entry on arrival. The reasons given for refusing entry were, first, because he had been refused entry on previous visits—and that clearly marked his case, as it were—and, secondly, that his ticket was valid for a longer period. I suspect that my ticket home is valid for a period longer than that which I intend to stay.
Clearly, there are difficulties for those whose entry visas are refused and who find that that somehow prejudices their future applications. I support the removal of Clause 10 but, first, I support the amendment, which goes some way towards providing a remedy for the type of cases I have mentioned.
The noble and learned Lord, Lord Ackner, moved the amendment most clearly and carefully, as we would expect. As usual, he said that it was a modest amendment. I sometimes wonder what kind of amendment the noble and learned Lord will introduce that is not modest. Even if the amendment were a blockbuster, I am sure that the noble and learned Lord would say that it was quite modest. He also said that he thought my noble friend Lord Campbell had had second thoughts because his name was not attached to the amendment. I hope that my noble friend has had second thoughts and I hope the noble and learned Lord will have second thoughts too.
The amendment provides for a right of appeal against refusal of entry for a short stay to be retained, but that it should be subject to a requirement to obtain leave. It is important that we should remember exactly what we are talking about. I suggest that if the appeal rights did not already exist, any proposal to create them would be greeted with some considerable surprise. Of course, there is always a reaction. The noble and learned Lord, Lord Ackner, expressed the reaction as understandable when a procedure with which we have all become familiar is taken away. But I suggest that the Committee might ask whether the procedure is sensible.
We all agree, first, that any person anywhere in the world should be able to apply to come to the United Kingdom. There is no question about that and we welcome without discrimination genuine visitors. However, the realities of immigration control mean that in relation to some nationalities it is necessary to 1039 require that visas are obtained before travelling to this country. But what happens if the application is rejected?
It is by no means self-evident that every person who has been refused a visa and who might have no prior link with this country should nevertheless have a formal right of appeal to an independent adjudicator—and, if rejected, a further right of appeal to a tribunal—with free representation at the taxpayers' expense available from the United Kingdom Immigrants Advisory Service or its successor bodies at every step of the way. That is what we are providing.
Those are people who have said that they want to come here for no more than six months and will then go back to their own country. In the case of those who are refused we may not accept that their intentions are as claimed. But even if their stated plan were true, that kind of brief visit—after which the person would resume life in his own country—simply cannot be seen as having the same significance as fundamental immigration decisions on settlement and family reunion.
At present our procedures do not differentiate between casual visitors and the potential long-term stayers. The result is that the appeal system here has become grossly overloaded. At present 21,000 cases are waiting for their applications to be heard. The big decisions—those relating to long-term stay—must take their place in a queue swollen by visitor appeals. It is many months before those cases are resolved. It is not irrelevant that no other country provides such generous treatment to foreign citizens who just happen to wish to visit this country—
§ Lord Ennals
The noble Earl spoke of people who just happen to want to visit this country. If that is the case they would not pass through the mechanism suggested by the noble and learned Lord, Lord Ackner. We are talking about people who have a case; people with close relatives whom they have not seen for a long time. Is not the noble Earl being unfair to the amendment?
§ 6.15 p.m.
I hope that I am not being unfair to the noble and learned Lord because if I am I know that I shall get stick from him. I was about to deal with the important point raised by the noble Lord, Lord Ennals. Perhaps the Committee will consider the scale of the problem. In 1991 there were 917,000 applications of which only 77,000 were refused—but 77,000 were refused. Of those 77,000 only 9,000 decided to appeal. Presumably the other 68,000 were relatively content with the decision. Of the 9,000 who appealed 1,500 were successful. Presumably the other 7,500 appeals were considered to be frivolous, unfounded, unacceptable or were rejected for some other reason. Therefore, we are dealing with a problem of 1,500 people out of a total 917,000 applications. I accept that there is a problem but we must ask how to overcome it. I ask whether the Committee considers it necessary to have such an enormous appeals edifice to overcome the problem.
1040 There are strong arguments of both logic and practicality for the changes contained in Clause 10 but I understand the real anxieties that have been expressed. Indeed, since Second Reading I have looked carefully with officials and others at the proposed system, and at the alternative suggestions that have been made, in order to see whether we can find a way round the problem. The noble and learned Lord, Lord Ackner, suggested that a right of appeal should be retained in such cases but that it should be subject to a requirement to obtain leave. The adjudicator would consider the case on the papers and decide whether a full appeal should proceed.
As usual, the noble and learned Lord made his case seem reasonable. I do not believe that that would produce real savings or any real streamlining of the existing arrangements. The noble and learned Lord, Lord Woolf, said that he could not see why there should not be a streamlining. If the Government had to put in papers at the leave stage the cost to public funds would remain almost as great. If only the applicant were to put in papers it is difficult to see how the adjudicator could ever decide that there was no case to argue. Such appeals generally turn on the credibility of the applicant. In visa cases the entry clearance officer in the overseas post will have known the applicant and will have talked to him. He will be the one who comes to the decision. The adjudicator will have none of those advantages.
Some of the Government's critics have said that it is not the people with no prior connection with the United Kingdom about whom they are principally concerned. That point was made by the noble Lord, Lord Ennals. Many people accept that a short visit cannot itself raise issues which are fundamental to a person's life. But what about the needs of the family; that is, family visits, weddings, funerals and other special occasions? What about the essential contacts between family members who may be living thousands of miles apart? Of course, there is no comparison with that type of application and the would-be tourist's holiday. We recognise the legitimate interests of long-term residents in this country who will want to do all that they can to facilitate the visits of their family members. That is wholly right and absolutely desirable.
We also considered whether it would be an option to retain a right of appeal in cases in which there is a close family member in this country. But, here again, we ran into trouble. We concluded that that would be a recipe for dissatisfaction and argument.
The noble Lord, Lord Ennals, referred to the family. We talk about close members of the family. How close is close? Presumably we would all agree that parents and brothers and sisters are all close, but what about uncles? Are they close? Maybe first cousins are close, but what about second cousins? A great deal of the difficult casework which entry clearance officers around the world already face revolves around disputed relationships in settlement cases where objective proof—short of DNA testing—is hard to find. We risk importing that sort of difficulty into the intrinsically less important area of visit applications.
1041 But, in any event, is the present appeal system really the best way of responding to the interests of sponsors who are here? In the first place, the queues and overloaded procedures mean that it takes months or even years for cases to be decided. A family event like a wedding or funeral may well have come and gone. But, more fundamentally, how valid is a judgment of the credibility of an applicant whom the adjudicator has not seen—a judgment which is formed primarily by an assessment of a relative whom he has seen?
The task at appeal is, of course, to review the decision which has been taken: to decide whether, at the time when it was taken and on the evidence which was then available, the decision was the right one. What sponsors in this country frequently want to say is, "Had you known of this additional piece of information, we think that you would have taken a different decision." But the sole duty of the adjudicator is to decide whether the decision was in accordance with the law and the immigration rules. The Government understand the concern of sponsors to be able to influence the decision-making process in this way. That is why we have been concerned that the initial decision making should take full account of all relevant factors and should be carefully monitored; and also that any new information which emerges subsequently should be carefully monitored; and also that any new information which emerges subsequently can be addressed, without prejudice, on the basis of a new application.
My honourable friend the Parliamentary Under-Secretary set out a range of safeguards when the clause was discussed in Committee in another place. I should like today to repeat those safeguards. First, we will amplify and add to the information leaflets which are available to visitors and their sponsors, both overseas and in this country, to spell out what can be done to facilitate initial applications; secondly, where a person is refused, he will receive a detailed notice setting out the reasons for that decision; thirdly, that notice will make clear that a previous refusal will not prejudice any subsequent application; fourthly, if any exceptional compassionate circumstances, illogicalities or procedural errors are raised with the Foreign and Commonwealth Office here, they will ask the diplomatic post concerned to review the decision. Wherever possible this will be done by a more senior officer; fifthly, if further information is put forward in a fresh application then this will be considered wherever possible by a different entry clearance officer.
Your Lordships expressed concern and apprehension at Second Reading. I have taken considerable note of that, and we have tried to find ways around the problem which exercised your Lordships. It exercised noble and learned Lords on the Cross-Benches. I would only say to the noble and learned Lord, Lord Ackner, that nobody willingly sails into an armada of noble and learned Lords on the Cross-Benches without at least having a cannon-proof waistcoat. It is not done willingly. I have tried to find a way round the problem, which I accept has caused genuine anxiety, not only to noble and learned Lords but to others.
1042 However, there is an additional safeguard. In larger posts, where entry clearance work is overseen by entry clearance managers, those managers will conduct a daily review of all refusal decisions. Where this senior officer reverses the decision of an entry clearance officer, the applicant will be contacted and a visa will be issued. That will help to ensure consistency of standards and it should enable errors to be picked up at the earliest opportunity. It will occur to every case that is refused. We estimate that up to 90 per cent. of visit refusals will be subject to review in that way.
§ Lord McIntosh of Haringey
I hesitate to look a gift horse in the mouth, because clearly it is intended to be a gift horse, but is the Minister saying that in the larger posts to which he referred management does not review already the decisions of the more junior officers? I cannot believe that there is any real change proposed in what the Minister says.
If the noble Lord looks a gift horse in the mouth, I can only say that that is his decision. What I said is that every case that is refused that day will be reviewed by a senior officer. I suggested that that ought to deal with about 90 per cent. of the cases.
I realise that some of your Lordships, including noble and learned Lords, will be sceptical about administrative procedures that fall short of a wholly independent review of existing decisions.
§ Lord Mishcon
Perhaps the Minister will allow me to intervene. We were talking earlier about savings of £1¼ million. If it is not the practice now for management to review, how much more will it cost the department to introduce a new procedure of management looking every day at the refusal cases?
I cannot possibly tell the noble Lord, Lord Mishcon, how much extra it is going to cost. He would not expect me to do so. I appreciate the point that he is making.
Some people are concerned that anything that is administrative which falls short of an independent review of executive decisions might be undesirable. Some have expressed concern in particular about the effect that Clause 10 might have on the burdens which are currently faced in the divisional court as a result of judicial review. The points that they made, as one might expect, were cogently expressed. Of course, there is always the possibility of judicial review. There is bound to be.
The noble and learned Lord, Lord Ackner, is worried that the judicial review procedures will be clogged up because we are trying to unclog the appeals procedure. The noble and learned Lord, Lord Woolf, was also worried about that. Of course it can be argued—and it is a fact—that the judicial review procedure is more expensive and more complex, and of course that can still come about. But if you apply for leave for judicial review it is less likely that that will be granted if it can be seen that two sieves have already been gone through by the applicant before applying for judicial review. There is no possible way in which judicial review proceedings can be prevented from taking place. However, you can try to see that they are less likely than they might otherwise be.
1043 I hope that the noble and learned Lord, Lord Ackner, will accept that the procedure I have suggested is fairer in so far as it goes through two sieves. It takes place in the country of origin, and it will ease the judicial review process. I should not wish the Committee to think that the Government are not concerned about the pressures on the divisional court, because they are. I merely say to the noble and learned Lord, Lord Ackner, that I understand what he is trying to do in this amendment. I do not think it will encourage the savings or that it will facilitate the savings. What we want to do is to streamline the procedure and get out of the system those appeals that have proved to be inappropriate. Of course, there is always a risk but I suggest that the present appeals procedure is too cumbersome for those cases it seeks to alleviate.
§ Lord Campbell of Alloway
May I ask my noble friend the Minister a short question in regard to something I do not understand? Perhaps other noble Lords do. Apparently there is to be a new appeal procedure or review procedure conducted by a more senior official, and presumably conducted abroad. Will the procedure of that reviewing official square with the elementary requirements of natural justice? Does he have to give reasons? Does he have to show the material on which he reviews? I ask those questions because the answers could well affect the way that I shall vote. If there is a satisfactory assurance that the minimum requirements of natural justice are safeguarded, that is one thing. But can that assurance be given?
§ 6.30 p.m.
My noble friend asks whether this provision will equate with natural justice. I hope that the entry clearance officers will fulfil their duties and obligations with regard to natural justice. Those rejected are referred to a higher person. That happens in government every day. A Minister must make certain decisions but a Cabinet Minister may make a different decision. There is an opportunity for two considerations. Therefore, natural justice would operate.
§ Lord Mishcon
Following on from what the noble Lord, Lord Campbell of Alloway, said, as I understood the noble Earl, he said that one of the defects of going before an adjudicator in order to obtain leave to appeal was that the adjudicator would not have seen the applicant as the immigration officer had seen the applicant and that, therefore, it was a meaningless exercise. If that be so, does that not apply to the senior officer who, wherever he may be and in whatever country, reviews the refusal during the day? Apart from disposing of the question of cost—and I have an idea that £1.25 million around the globe would be the minimum expense of the new procedure—is not the noble Earl's objection to the adjudicator disposed of also if he believes that senior management can deal with the matter quite justly whereas the adjudicator cannot?
I do not think so because the decision will be taken in the post abroad. It will be taken by the entry clearance officer. The senior manager will be in the post abroad and will be familiar with all the cases and situations which obtain there. That is totally different from passing the decision to an appeals procedure in this country where an adjudicator will just look at a piece of paper which the refused applicant receives. If that is to be referred to an adjudicator in this country, it will be necessary for the Foreign Office to put its full case as to why the application has been refused.
§ Lord McIntosh of Haringey
I return to the response made to the noble Lord, Lord Campbell of Alloway. He asked whether the procedure to be adopted is in accordance with natural justice. He may have been satisfied by the answer but I suggest to the Minister that one of the first principles of natural justice is that justice should be seen to be done. In other words, the procedure should be publicly accountable.
The Minister has said nothing which identifies the review by that senior manager within a large overseas unit as being in public or in any way accountable. It seems to me that it will be a purely administrative procedure. I wonder if that is in accordance with the principles of natural justice.
The noble Lord, Lord McIntosh, seems to make rather a mountain out of the business of natural justice. He is saying that any official who takes a decision is not necessarily acting in accordance with natural justice. In fact that decision is reviewed overseas by a senior manager. If the person is still dissatisfied, as I explained, it is always possible for the decision to be made the subject of a judicial review. The noble Lord, Lord McIntosh, makes a sighing noise. It is natural justice because there is a recourse to a judicial review. For fairly obvious reasons we want to ensure that that recourse is not taken frivolously.
§ Lord McIntosh of Haringey
I prefer that noise to be described as a silent gesture of incredulity rather than a sighing noise. I am incredulous. I cannot believe that the Minister still relies on judicial review as the remedy for that kind of administrative injustice after all that has been said by noble and learned Members of the Committee and others about the impossibility of the burdens on the judicial procedure and the fact that it takes about 18 months to be reached.
The Minister seeks to argue against a very modest amendment which provides for the possibility of adjudication on the right to appeal. He does that partly by proposing a provision which seems to be merely an extension of administrative procedures and partly by attacking the basis of adjudication. He appears to be saying that the adjudicator will not have access to the documents. The Government are setting up the system of adjudication. If they are doing that without giving adjudicators access to the documents, then they are arguing against their own procedures.
§ Lord Ackner
As always, the noble Earl has been fair and painstaking in his reply to my submissions but he is in the unenviable position of having to concede 1045 before the Committee that if this clause had been operative last year, injustice would have been done in no fewer than 1,500 cases. I say "no fewer" because I believe that the figure would have been a great deal more than 1,500 cases. If the provision had not been in place to scrutinise spurious reasons, there would have been more spurious reasons.
The noble Earl has reduced the problem into quite simple figures. Potentially we are taking about some 9,000 cases with a success rate currently of one in five. To remedy the situation which would arise if the right as enjoyed at present is withdrawn, an office manager is to be there to rubber stamp the decision of a junior official.
The noble and learned Lord cannot say that an office manager will be there to rubber stamp. As a junior Minister I frequently give my view one way or another and my right honourable friend the Home Secretary overturns that decision. If the noble and learned Lord were unkind, he would say that that is because I take the wrong decisions. However, that principle operates.
§ Lord Ackner
As I understand it, the decision will have been made initially by a junior official on the issue of credibility. I do not see how an office manager, when the applicant has gone home, can confirm an issue on credibility, having never seen the party. If that is not rubber stamping, I do not know what it is. It is certainly not the process of an independent decision by someone not in the same office.
The other point is that inside the office run by the office manager may be a thoroughly spurious policy which the junior official consistently carries out. That means that the office manager will consistently support the spurious decision. Therefore, there is no safeguard in that system.
There is an extremely heavy onus upon anyone who seeks to justify robbing Peter to pay Paul. That is exactly what this does. It takes away an existing right enjoyed over the past 21 years in order to fund a right of appeal, if justice is to be done, to an entirely different category of person—an asylum seeker. I invite the Committee to say that the Government have come nowhere near discharging that onus.
§ 6.38 p.m.
§ On Question, Whether the said amendment (No. 49) shall be agreed to?
§ Their Lordships divided: Contents, 124; Not-Contents, 148.1047
|Division No. 1|
|Ackner, L.||Boston of Faversham, L.|
|Acton, L.||Bottomley, L.|
|Addington, L.||Brightman, L. [Teller.]|
|Airedale, L.||Buckmaster, V.|
|Archer of Sandwell, L.||Callaghan of Cardiff, L.|
|Ardwick, L.||Campbell of Alloway, L.|
|Ashley of Stoke, L.||Carmichael of Kelvingrove, L.|
|Barnett, L.||Chichester, Bp.|
|Beaumont of Whitley, L.||Cocks of Hartcliffe, L.|
|Beloff, L.||Darcy (de Knayth), B.|
|Birk, B.||David, B.|
|Blackstone, B.||Dean of Beswick, L.|
|Bonham-Carter, L.||Desai, L.|
|Donaldson of Kingsbridge, L.||Mishcon, L.|
|Donoughue, L.||Molloy, L.|
|Dormand of Easington, L.||Monkswell, L.|
|Eatwell, L.||Morris of Castle Morris, L.|
|Elis-Thomas, L.||Newcastle, Bp.|
|Ennals, L.||Nicol, B.|
|Ewing of Kirkford, L.||Norwich, Bp.|
|Faithfull, B.||Ogmore, L.|
|Falkland, V.||Park of Monmouth, B.|
|Flather, B.||Parry, L.|
|Foot, L.||Perry of Walton, L.|
|Gallacher, L.||Peston, L.|
|Galpern, L.||Pitt of Hampstead, L.|
|Geraint, L.||Plant of Highfield, L.|
|Gladwyn, L.||Ponsonby of Shulbrede, L.|
|Graham of Edmonton, L.||Prys-Davies, L.|
|Grey, E.||Redesdale, L.|
|Halsbury, E.||Richard, L.|
|Hamwee, B.||Ripon, Bp.|
|Harris of Greenwich, L.||Ritchie of Dundee, L.|
|Harvington, L.||Robson of Kiddington, B.|
|Healey, L.||Rochester, L.|
|Hollis of Heigham, B.||Rodgers of Quarry Bank, L.|
|Holme of Cheltenham, L.||Russell, E.|
|Hooson, L.||Ryder of Warsaw, B.|
|Howell, L.||St. Edmundsbury and Ipswich, Bp.|
|Hutchinson of Lullington, L.||Seear, B.|
|Hylton, L.||Sefton of Garston, L.|
|Hylton-Foster, B.||Serota, B.|
|Irvine of Lairg, L.||Shackleton, L.|
|Jay of Paddington, B.||Stedman, B.|
|Jeger, B.||Stoddart of Swindon, L.|
|Jenkins of Putney, L.||Taylor of Gosforth, L.|
|Judd, L.||Tenby, V.|
|Kennet, L.||Thomson of Monifieth, L.|
|Kilbracken, L.||Tordoff, L.|
|Kirkhill, L.||Turner of Camden, B.|
|Lawrence, L.||Underhill, L.|
|Lockwood, B.||Wedderburn of Charlton, L.|
|Lovell-Davis, L.||Whaddon, L.|
|McGregor of Durris, L.||White, B.|
|McIntosh of Haringey, L.||Wilberforce, L.|
|Mackie of Benshie, L.||Williams of Elvel, L.|
|McNair, L.||Williams of Mostyn, L.|
|Mallalieu, B.||Winchilsea and Nottingham, E.|
|Mayhew, L.||Winstanley, L.|
|Merlyn-Rees, L.||Woolf, L. [Teller.]|
|Meston, L.||Worcester, Bp.|
|Milner of Leeds, L.|
|Ailesbury, M.||Clanwilliam, E.|
|Allenby of Megiddo, V.||Clark of Kempston, L.|
|Annaly, L.||Colnbrook, L.|
|Archer of Weston-Super-Mare, L.||Colwyn, L.|
|Arran, E.||Cranborne, V.|
|Astor, V.||Crathorne, L.|
|Bessborough, E.||Crickhowell, L.|
|Blatch, B.||Cross, V.|
|Blyth, L.||Cumberlege, B.|
|Boardman, L.||Davidson, V.|
|Borthwick, L.||De La Warr, E.|
|Boyd-Carpenter, L.||Denham, L.|
|Brabazon of Tara, L.||Denton of Wakefield, B.|
|Bridgeman, V.||Derwent, L.|
|Brookes, L.||Dilhorne, V.|
|Brougham and Vaux, L.||Downshire, M.|
|Buckinghamshire, E.||Dundonald, E.|
|Butterfield, L.||Eccles of Moulton, B.|
|Butterworth, L.||Elles, B.|
|Cadman, L.||Elliott of Morpeth, L.|
|Caithness, E.||Elphinstone, L.|
|Caldecote, V.||Elton, L.|
|Camoys, L.||Ferrers, E.|
|Carnegy of Lour, B.||Fraser of Carmyllie, L.|
|Carnock, L.||Fraser of Kilmorack, L.|
|Carr of Hadley, L.||Gainsborough, E.|
|Chalker of Wallasey, B.||Gardner of Parkes, B.|
|Goschen, V.||Orkney, E.|
|Greenway, L.||Oxfuird, V.|
|Griffiths of Fforestfach, L.||Palmer, L.|
|Grimston of Westbury, L.||Pender, L.|
|Hanson, L.||Perry of Southwark, B.|
|Harmar-Nicholls, L.||Peyton of Yeovil, L.|
|Harmsworth, L.||Platt of Writtle, B.|
|Hayhoe, L.||Prentice, L.|
|Henley, L.||Quinton, L.|
|Hesketh, L. [Teller.]||Radnor, E.|
|Hives, L.||Rankeillour, L.|
|Holderness, L.||Reay, L.|
|HolmPatrick, L.||Rees, L.|
|Hood, V.||Rennell, L.|
|Hooper, B.||Renton, L.|
|Hothfield, L.||Renwick, L.|
|Howe, E.||Ridley of Liddesdale, L.|
|Ironside, L.||Rodger of Earlsferry, L.|
|Jeffreys, L.||Romney, E.|
|Jenkin of Roding, L.||St. Davids, V.|
|Johnston of Rockport, L.||Saltoun of Abernethy, Ly.|
|Kimball, L.||Savile, L.|
|King of Wartnaby, L.||Seccombe, B.|
|Layton, L.||Shannon, E.|
|Leigh, L.||Skelmersdale, L.|
|Lindsay, E.||Stevens of Ludgate, L.|
|Lindsey and Abingdon, E.||Stewartby, L.|
|Liverpool, E.||Stodart of Leaston, L.|
|Long, V.||Strange, B.|
|Lucas of Chilworth, L.||Strathclyde, L.|
|Lyell, L.||Strathcona and Mount Royal, L.|
|McColl of Dulwich, L.|
|Mackay of Ardbrecknish, L.||Strathmore and Kinghorne, E. [Teller.]|
|Macleod of Borve, B.|
|Mancroft, L.||Sudeley, L.|
|Merrivale, L.||Tebbit, L.|
|Mersey, V.||Teviot, L.|
|Monk Bretton, L.||Thomas of Gwydir, L.|
|Monson, L.||Torrington, V.|
|Moore of Lower Marsh, L.||Trefgarne, L.|
|Mottistone, L.||Trumpington, B.|
|Mountevans, L.||Ullswater, V.|
|Mowbray and Stourton, L.||Vivian, L.|
|Moyne, L.||Wakeham, L.|
|Munster, E.||Whitelaw, V.|
|Murton of Lindisfarne, L.||Wise, L.|
|Nelson, E.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendment No. 50 had been withdrawn from the Marshalled List.]
§ 6.48 p.m.
§ On Question, Whether Clause 10 shall stand part of the Bill?
§ The Lord Bishop of Ripon
We have already rehearsed many of the arguments in this Chamber and I do not propose to add at length to them. The Minister said during his reply to the debate on an earlier amendment that many of the cases to be considered would not have profound effects on the lives of those involved. I would suggest that there is some evidence that even for those who are applying for visitors' visas a refusal can have quite profound effects.
I should like to quote to your Lordships the case of a Pakistani woman who applied for entry clearance to visit her daughter in the United Kingdom. After her application, her daughter wrote to tell her that she was due to have her first child. The mother attended an interview in which she provided a copy of her daughter's letter, evidence of maintenance and 1048 accommodation, and her application was then refused on the grounds that the official concerned was not satisfied as to the true purpose of her visit.
Once again, as we commented in the earlier debate, that was a subjective judgment. Her daughter had no immediate relatives in the United Kingdom, and later in the year she had a miscarriage. Rightly or not, the daughter felt that this was a direct result of the anxiety created by the refusal of entry clearance to her mother. This seems to me to be one example, among a number of others, of the way in which a refusal can produce a highly stressful situation which may indeed have the most distressing results.
In the earlier debate the Minister referred to the procedures being put in place to achieve a better review of the present operation of the system. I and many others welcome the improved procedures. However, as we argued earlier, they cannot be seen as an adequate substitute for a genuine appeals system. There will be no element of external scrutiny of immigration officials' decisions. The second application will be considered by a member of staff at the same embassy or high commission which refused the original application. Indeed, under the earlier provisions, it could be the same member of staff. Such remedies provide no compensation for those who are applying not for entry clearance but for leave to enter when they reach this country. Visitors who are then refused entry on arrival in the UK have no recourse under the procedures which have been described.
We remain concerned not simply about the numbers who are found to have a case on appeal but also about the effect which the removal of appeal will have on the decisions made by immigration officials. That point was made by the noble and learned Lord, Lord Ackner, in the previous debate and I repeat it. It is not merely that some 9,000 appeal cases were heard, of which 1,500 were successful. It is also that the provision of an appeal system requires immigration officials to be all the more cautious and careful about the conclusions they reach. It is clear that the removal of the right to appeal will have an effect, however unconscious, upon the decisions which are made by immigration officials.
For those reasons, and for the reasons which we put forward in the previous debate, I believe that Clause 10 ought not to stand part of the Bill.
§ Lord McIntosh of Haringey
I hope that I am not assuming too much if I say that a number of the speeches in the previous debate were effective arguments against Clause 10 as a whole and not simply arguments in favour of Amendment No. 49, although they successfully—perhaps not in terms of votes but in terms of the argument—performed that function. Therefore, I hope that I shall be forgiven if I race through the reasons, which are unfortunately many and powerful, why Clause 10 should not stand part of the Bill.
The first reason, and the most significant from a legal point of view, is the one put by the noble and learned Lord, Lord Donaldson, at Second Reading. If one has an appeals procedure which is overloaded one does not remove the overload by removing the right of appeal. One deals with it by increasing the 1049 effectiveness of the resources available for the appeals procedure. No convincing argument has been made that Clause 10 addresses a real resources problem. We are talking about a total of 9,000 appeals, of which 1,500 have been successful. That is not a large number of appeals. The success rate which is indicated shows that there is a real justification—as the noble and learned Lord, Lord Ackner, said, probably a minimal justification—in the number of decisions which have to be overturned. The argument about delay and resources is fundamentally a bad argument.
The argument in favour of judicial review as a solution has been thoroughly destroyed in debate. It was attacked effectively by noble and learned Lords and by noble Lords at Second Reading. Nothing has been said further to justify the argument that resort to judicial review is an acceptable alternative to a proper appeals procedure. My noble friend Lord Ennals pointed out the danger of a far greater caseload for Members of another place. I hope that it will not affect us, but I can see that in many cases it will if we do not do our duty in these matters.
The argument concerning the accountability and responsibility of immigration officers is still powerful. They are relatively junior officers. I understand that most of the officers are of Grade 9 and those who might review their activities are of Grade 7. They are relatively junior officers, often working in relative isolation. There are draft Immigration Rules which they must observe, but there will be great difficulties for officers of that seniority in dealing with the obligation under the Bill to observe not only the draft Immigration Rules but also the law. The law is wider. It includes immigration law, Community law and considerations of natural justice. I suggest that immigration officers' ability to do their job properly is enhanced by the existence of an appeals procedure. The fact that there will be no effective review of what they do will make it more difficult for them to behave in a consistent and just way.
It is suggested that the appeals procedure is a burden which is unique to this country. The requirement for an appeals procedure is not new in this country. It was established in 1969 as a result of the deliberations of the Wilson Committee. As the noble and learned Lord, Lord Ackner, said, it has been a part of our law for more than 20 years. The Wilson Committee was concerned with appeals both by those outside this country applying for entry and by those inside this country applying for extension of leave to remain. Over the entire period during which the legislation has been in force no adequate argument has been put forward to indicate that the rights of appeal are unnecessary, dangerous or themselves cause delay.
There must be a fear that without an appeals procedure decisions will be taken in a discriminatory way. In December last year we debated the National Association of Citizens Advice Bureaux A Charter for All? review of the immigration service. The figures which I quoted in that debate concerning the difference in the proportions of people from different countries who were turned back were never denied by 1050 Government. If one has a black face or comes from the Indian sub-continent one is far more likely to be turned away at the port of entry. That applies just as much to short-term visitors as to long-term visitors. The enactment of Clause 10 would result in an extension of racial discrimination into our family and community life. I suggest that the Committee should think very seriously before agreeing to this change.
We need to be satisfied, both on grounds of principle and grounds of practicality, that the changes proposed in the clause are justified. I suggest to the Committee that no adequate justification on either ground has been put forward by the Government.
§ Lord Bonham-Carter
I should like to support the proposal that Clause 10 should not stand part of the Bill. I do not propose to repeat what was said in support of the previous amendment in the name of the noble and learned Lord, Lord Ackner, most of which, as the noble Lord, Lord McIntosh, said, covered Clause 10. I am happy to be reminded by the noble Lord, Lord McIntosh, that the appeals procedure which the clause proposes to remove from three classes of people was proposed by no less a person than Sir Roy Wilson, a man who had a passion for justice. Today, in relation to the clause, we are talking about justice and the right of an individual to have a wrong redressed. That is what is at the heart of what we are discussing, and it is no small matter. It is one which the Committee should take with extreme seriousness.
In discussing the amendment of the noble and learned Lord, Lord Ackner, the noble Earl, Lord Ferrers, placed great emphasis on the need for speed and streamlining, and on overloading and backlog. Of course there can be a tension between justice and speed. The two do not necessarily go together. If one tries to do things quickly one may be unjust. For instance, in the world of industry there is a tension between safety and cheapness. No doubt cars would be cheaper and go even faster if they had no brakes. Nonetheless we are in favour of them having brakes. Justice is a brake on administrative injustice. That is what we refer to in the clause. That is the concept that the noble Earl, Lord Ferrers, has to confront without any qualification.
He appeared to regard being allowed to come to this country as a privilege, but I may have misinterpreted what he said. I have always believed that to visit and to travel was a right we possessed which could be limited only by good reason. I believe that it was Mr. Bevin who, at the end of the last war, stated that he hoped to see a Europe and a world in which people did not have to carry passports. That thought seems to have been forgotten by the present Government.
In the course of his remarks the noble Earl stated that if appeals were now to be introduced de novo the measure would surprise people. The provision might be greeted with surprise, but it would surely be regarded as an improvement. I do not wish to be unduly offensive to the noble Earl or his colleagues on the opposite Bench, but the surprise would lie in the fact that the Government have introduced an 1051 improvement, not that there was some justification in having an appeal if someone's right to enter the country had been withdrawn.
I do not wish to repeat what has been said. However, certain aspects struck me as important. I was impressed by the evidence—it cannot be refuted—that immigration officers are human and therefore not infallible. If that is so, some arrangement must be made to correct the mistakes which, with the best will in the world, they inevitably make. That corrective mechanism must be public and independent. Therefore, what the noble Earl, Lord Ferrers, referred to as a gift horse I call a very small gift, and one that is somewhat flawed. If immigration officers are not infallible, and if a mechanism to correct their mistakes has to be devised, I believe that an independent tribunal such as we have should be retained.
I was deeply impressed by the point made by the noble and learned Lord, Lord Ackner, that unless one has such a mechanism there will be variations in the decisions made by officials which will produce further injustice that will be difficult to correct.
I was impressed too by the point made by the noble Baroness, Lady Flather. She stated that the provision made visits to this country by unmarried people from the subcontinent of India very difficult. It has to be recognised that there is racial discrimination in the way in which the system works at present; and that will become worse if there is no appeals procedure. I should be surprised if the more than one-in-1,000 Americans who were refused right of entry—as opposed to the one-in-five Ghanaians and one-in-27 Jamaicans—were not black. There were two such examples this summer, as the noble Earl will remember.
However, the fundamental point of the clause, and why we wish it removed, is because it does not provide redress for individuals for wrongs which they have suffered. Such redress is a matter of justice. We ask for that justice in this country. Whether or not it works in other countries seems to me totally irrelevant. The system of appeal under the Bill should enable people to obtain redress. For that reason I support the noble Baroness.
§ 7 p.m.
§ Lord Campbell of Alloway
I was a little sad that the Minister was unable to seek a principle of accommodation or to devise an acceptable resolution which is equally satisfactory with the existing arrangements as set out in our manifesto commitment. I fully understand and sympathise with the Minister. It is all but impossible to steer a course between administrative convenience and indigenous concepts of justice and fair play, referred to some time ago by the noble and learned Lord, Lord Atkin, as ill-assorted bedfellows. The noble Lord, Lord Bonham-Carter, touched on the point.
There is little else to say; it has all been said. but is it not apparent, if not conceded, that the Clause 10 arrangements are not equally satisfactory and cost-effective? Therefore, what is said to be 1052 determination to maintain our present system of immigration controls set out in our manifesto seems to have gone to the wall.
§ Lord Pitt of Hampstead
I too urge that Clause 10 does not stand part of the Bill. As I said at Second Reading, I had a hand in the setting up of the appeal machinery. I am sorry that my noble friend Lord Callaghan is no longer present. As Home Secretary he dealt with the machinery.
The appeal machinery was set up because we were disturbed at the number of refusals and the way in which people felt that they were being treated. The fact that 23 years later we are still finding that one-in-five of the appeals succeeds suggests how important it was to establish that machinery. The Minister states that if anyone suggests setting up such a machinery now he would be laughed at. But the machinery is essential. I use the word advisedly. We have taken away the right of appeal from visitors. The right reverend Prelate and the noble Baroness, Lady Flather, illustrated the problems that occur to visitors, for which appeal machinery is necessary.
The noble Earl, Lord Russell, pointed to the problem with regard to students. I do not understand why this country, to which all manner of people have been coming for centuries to be educated, should be taking the attitude that it adopts to students. We should welcome people who come to this country to study.
As I said when I sat on the other side of the House and my party introduced the procedure and when we imposed full fees on overseas students, the consequence would be that when people looked for somewhere to buy something, they would not look to this country—they would look to the country where they were educated. That is so. I believe that this country needs to change its attitude to students: they should be encouraged not discouraged.
On the proposal that there should be a restriction on courses for less than six months, I have a diploma in child health and that course is for less than six months. It is nonsense to suggest that, if one does a course which is less than six months, it is not a serious course. That is the wrong approach, and we fail to understand the offence that we cause and the offence that we give.
Even with the appeals machinery in place, there have been many difficult cases. Without that machinery in place and with no one outside the immigration department able to examine cases to see whether justice has been done, we shall have many more difficulties than we now have. I hope that the Government will think again and I should like the Committee to show its disapproval by rejecting Clause 10.
The whole substance of the clause was debated on the previous amendment and I do not wish to go again through all the reasons which I gave then. However, there are one or two points which I wish to make.
The right reverend Prelate referred to a case where an application for entry clearance was refused because the immigration officer was not convinced of the need 1053 for a visit. The right reverend Prelate will understand that one cannot take individual cases as a matter for debate here. If he has any genuine reasons for being concerned, if he contacts me I shall examine the case. He also said that the person who came to this country with an entry clearance document but was then rejected when he actually came here would have no right of appeal. I should like to correct the right reverend Prelate about that. A person who comes with an entry clearance document shows that he has a prima facie reason for coming here. If he is then for some other reason refused entry when he comes to a port—for example, if it is discovered that he is a criminal—the immigration officer has the right of refusal. However, the person has the right to have his appeal heard in this country.
§ The Lord Bishop of Ripon
I thank the Minister but he has not quite met my point. There are those who do not require entry clearance before they come to this country, those who do not need a visa. They may arrive here believing that no visa is needed and are then turned away and refused entry at that point.
Obviously it is up to anyone who comes from another country to make quite sure of the requirements of the country to which they are going.
The noble Lord, Lord McIntosh, said that delay and resources were bad arguments. I find that quite astonishing, delay is a substantial argument. In the clause we are trying to deal with those people who genuinely wish to come here, to make their lives here and are applying to become members of the United Kingdom. The appeals system is being clogged up for them by people who merely wish to come for six months. That is all the clause deals with—six months is the maximum.
We have set in train many new procedures. At the end of them, if the person is rejected, he can always re-apply without any discrimination against him. I find it astonishing that the noble Lords, Lord McIntosh, Lord Bonham-Carter, and others say, "What we want is justice. We are concerned about justice for the individual". We are concerned with people who are applying to come here and sometimes cannot find out for three, four or even five years—perhaps not as long as that: 18 months—whether they will be allowed to enter the country. We wish to release those cases and relieve the system so that people who wish to come here for long-term stays—genuine applicants—can do so and have their cases considered and dealt with quickly.
The noble Lord, Lord McIntosh, frowns because I mentioned his name. I am sorry if it disturbs him but both he and the noble Lord, Lord Bonham-Carter, said that this was because of racial discrimination. It has nothing to do with racial discrimination; we are simply trying to unclog a bad procedure. I can only assure the noble Lords that that is what is behind it. I frankly reject the argument that it is racially motivated—that is quite improper.
§ Lord Bonham-Carter
Perhaps the noble Earl will forgive me, but I must correct him. I did not say that 1054 the clause was racially motivated, I said that, given the existence of racial discrimination, the procedure which is proposed to be substituted for the procedure which we have will lead to racial discrimination.
I am quite happy to accept that correction, I realise that I was wrong over it. I do not invite the noble Lord, Lord Bonham-Carter, to get to his feet again—although I am sure that he will not hesitate to do so if he wishes. However, he said that he had always thought it was not a privilege to come to the United Kingdom, anyone ought to be able to go anywhere. I think that it is a privilege to go to another person's country and one ought to consider it a privilege and treat it accordingly.
Because the noble Lord, Lord Bonham-Carter, thought that it should be considered natural, he felt that there was no need to have such restrictions. If we look at other countries, I expect he likes to go to France, but no reasons have to be given in law there for the refusal of a visitor's visa. If one goes to the United States or Germany, there is no appeal against the refusal of short-term visas. Our system happens to be unique. Members of the Committee may say that that is a good thing.
Perhaps I may encapsulate the purpose of the clause. I suggest that it is important. It is that the system needs to concentrate on decisions which really matter, which relate to long-term applicants. At present the system does not distinguish between the big issues and more minor matters which cannot be sensibly addressed in this country. The key decisions on the family reunion and settlement are buried in the backlog of people asking to come for six months. I suggest that it is better to focus on getting the initial decisions right, and that is what we intend to do. It is an administrative procedure. I return to the fact that if at the end the applicant says, "This is not right", he can apply again. We cannot get much fairer than that.
§ The Lord Bishop of Ripon
The Minister talked about the gain from including the clause in the Bill. I should like the Committee to consider the cost of including it. I do not mean in financial terms, but in other terms. From the speeches by Members of the Committee, we have heard of the way in which the provision will be perceived as a lack of access to proper justice. It will be perceived as such by a particular group within our country who find that they or their families are in some way affected by it. Those will largely be black people from black families. It seems to me that the cost will be a feeling of resentment among black people which will inevitably lead to a worsening of relationships between the ethnic minorities and other people in the country.
It seems to me that that is the cost of the inclusion of the clause. I believe it to be a high cost and one not outweighed by any of the gains which the Minister put forward. I believe that so strongly that I think it would not be right for the Bill to go forward without testing the mind of the Committee as to whether the clause should stand part of the Bill. I oppose the clause.
§ 7.19 p.m.
§ On Question, Whether Clause 10 shall stand part of the Bill?
§ *Their Lordships divided: Contents, 119; Not-Contents. 96.1056
|Division No. 2|
|Archer of Weston-Super-Mare, L.||Kimball, L.|
|King of Wartnaby, L.|
|Arran, E.||Kinnoull, E.|
|Astor, V.||Lauderdale, E.|
|Barber, L.||Layton, L.|
|Belstead, L.||Lindsey and Abingdon, E.|
|Blatch, B.||Liverpool, Bp.|
|Blyth, L.||Long, V.|
|Boardman, L.||Lucas of Chilworth, L.|
|Borthwick, L.||Lyell, L.|
|Boyd-Carpenter, L.||McColl of Dulwich, L.|
|Brabazon of Tara, L.||Mackay of Ardbrecknish, L.|
|Braine of Wheatley, L.||Mackay of Clashfern, L.|
|Bridgeman, V.||Mancroft, L.|
|Brougham and Vaux, L.||Mersey, V.|
|Buckinghamshire, E.||Monk Bretton, L.|
|Butterfield, L.||Monson, L.|
|Butterworth, L.||Moore of Lower Marsh, L.|
|Cadman, L.||Mottistone, L.|
|Caithness, E.||Mountevans, L.|
|Caldecote, V.||Mowbray and Stourton, L.|
|Carnegy of Lour, B.||Moyne, L.|
|Carnock, L.||Murton of Lindisfarne, L.|
|Carr of Hadley, L.||Onslow, E.|
|Chalker of Wallasey, B.||Oxfuird, V.|
|Clanwilliam, E.||Pender, L.|
|Clark of Kempston, L.||Perry of Southwark, B.|
|Colnbrook, L.||Peyton of Yeovil, L.|
|Craigmyle, L.||Prentice, L.|
|Cranborne, V.||Radnor, E.|
|Crathorne, L.||Rankeillour, L.|
|Crickhowell, L.||Reay, L.|
|Cross, V.||Rees, L.|
|Cumberlege, B.||Rennell, L.|
|De La Warr, E.||Renton, L.|
|Denton of Wakefield, B.||Ridley of Liddesdale, L.|
|Downshire, M.||Rodger of Earlsferry, L.|
|Eccles of Moulton, B.||Romney, E.|
|Elles, B.||St. Davids, V.|
|Elliott of Morpeth, L.||Savile, L.|
|Elphinstone, L.||Seccombe, B.|
|Elton, L.||Skelmersdale, L.|
|Ferrers, E.||Stewartby, L.|
|Fraser of Carmyllie, L.||Stodart of Leaston, L.|
|Goschen, V.||Strathclyde, L.|
|Greenway, L.||Strathcona and Mount Royal, L.|
|Grimston of Westbury, L.|
|Halsbury, E.||Strathmore and Kinghorne, E [Teller.]|
|Harmar-Nicholls, L.||Teviot, L.|
|Harmsworth, L.||Thatcher, B.|
|Harvington, L.||Thomas of Gwydir, L.|
|Hayhoe, L.||Torrington, V.|
|Henley, L.||Trefgarne, L.|
|Hesketh, L. [Teller.]||Trumpington, B.|
|Hives, L.||Ullswater, V.|
|HolmPatrick, L.||Vivian, L.|
|Hothfield, L.||Wakeham, L.|
|Howe, E.||Whitelaw, V.|
|Jeffreys, L.||Wise, L.|
|Jenkin of Roding, L.||Wynford, L.|
|Ackner, L.||Beloff, L.|
|Acton, L.||Birk, B.|
|Addington, L.||Blackstone, B.|
|Airedale, L.||Bonham-Carter, L.|
|Archer of Sandwell, L.||Bottomley, L.|
|Ardwick, L.||Brightman, L.|
|Barnett, L.||Brookes, L.|
|Beaumont of Whitley, L.||Buckmaster, V.|
|Callaghan of Cardiff, L.||Mackie of Benshie, L.|
|Campbell of Alloway, L.||McNair, L.|
|Carmichael of Kelvingrove, L.||Mallalieu, B.|
|Chichester, Bp.||Merlyn-Rees, L.|
|Cocks of Hartcliffe, L.||Meston, L.|
|David, B.||Milner of Leeds, L.|
|Dean of Beswick, L.||Mishcon, L.|
|Desai, L.||Monkswell, L.|
|Donaldson of Kingsbridge, L.||Morris of Castle Morris, L.|
|Donoughue, L.||Newcastle, Bp.|
|Dormand of Easington, L.||Ogmore, L.|
|Eatwell, L.||Parry, L.|
|Elis-Thomas, L.||Pitt of Hampstead, L.|
|Ennals, L.||Plant of Highfield, L.|
|Ewing of Kirkford, L.||Prys-Davies, L.|
|Falkland, V.||Redesdale, L.|
|Foot, L.||Richard, L.|
|Galpern, L.||Ripon, Bp. [Teller.]|
|Gladwyn, L.||Robson of Kiddington, B.|
|Graham of Edmonton, L. [Teller.]||Rochester, L.|
|Grey, E.||St. Edmundsbury and Ipswich, Bp.|
|Harris of Greenwich, L.||Seear, B.|
|Healey, L.||Sefton of Garston, L.|
|Hollick, L.||Serota, B.|
|Hollis of Heigham, B.||Stedman, B.|
|Holme of Cheltenham, L.||Stoddart of Swindon, L.|
|Hooson, L.||Thomson of Monifieth, L.|
|Howell, L.||Tordoff, L.|
|Hylton, L.||Turner of Camden, B.|
|Hylton-Foster, B.||Underhill, L.|
|Jay of Paddington, B.||Wedderburn of Charlton, L.|
|Jeger, B.||Wharton, B.|
|Kilbracken, L.||White, B.|
|Kirkhill, L.||Williams of Elvel, L.|
|Lawrence, L.||Williams of Mostyn, L.|
|Leigh, L.||Winchilsea and Nottingham, E.|
|Lockwood, B.||Winstanley, L.|
|McGregor of Durris, L.||Worcester, Bp.|
|McIntosh of Haringey, L.|
§ [*The Tellers for the Not-Contents reported one more name than the total recorded by the Clerks.]
§ Resolved in the affirmative, and Clause 10 agreed to accordingly.
§ 7.27 p.m.
Lord Mishcon moved Amendment No. 51:
After Clause 10, insert the following new clause:
§ ("Access to legal advice
§ .—(1) A person who is in detention at a port of entry, an immigration detention centre, or other premises, and is making an asylum claim, shall be entitled, if he so requests, to consult a solicitor or adviser of his choice privately at any time.
§ (2) A custody record shall be kept for a person who is in detention at a port of entry, an immigration detention centre or other premises, and is making an asylum claim.
§ (3) A request under subsection (1) above and the time at which it was made shall be recorded in the custody record or record of the interview or the appropriate record of detention.
§ (4) If a person making an asylum claim makes such a request, he must be permitted to consult a solicitor or adviser of his choice as soon as is practicable.
§ (5) At any interview or hearing in connection with a claim for asylum a person must be permitted to consult a solicitor or adviser of his choice, and must be informed of this entitlement in advance of the interview or hearing, in the language of his choice.").
§ The noble Lord said: As we have observed, logic does not move the Minister and emotion does not influence him. I hope that brevity at long last will. In moving the amendment, I merely seek to obtain for asylum seekers the same privileges in regard to our legal system that those charged with a criminal offence 1057 and detained have according to our law. I want it written on the face of this Bill, which deals with asylum seekers.
§ The privileges are, first, that a person who is detained at a port of entry or an immigration detention centre, or in other premises, and who is making an asylum claim shall be entitled to see a lawyer and have advice privately—the word used is "privately". Secondly, a custody record is to be kept in exactly the same way as it has to be kept with any prisoner who is in custody, whether he is on remand or otherwise. Thirdly, a request is to be recorded in the custody record in exactly the same way as for somebody who is in custody according to our law.
§ Fourthly, if he makes such a request, the asylum seeker must be permitted to consult a solicitor or adviser of his choice as soon as practicable. Lastly, with regard to any interview which he has in connection with his claim for asylum, he must be entitled to consult a solicitor or adviser and must be informed of that entitlement in advance.
§ We have heard that if a questionnaire is not answered promptly or completely then there is an automatic right to refuse the right of asylum. The least we can do with asylum seekers—I repeat this—is to treat them in the same way in regard to this matter in having advice available as we do those who are charged with a criminal offence. It is with some optimism that I propose the amendment. I beg to move.
§ Baroness Seear
I support the amendment, to which I have added my name. As the noble Lord, Lord Mishcon, said, it is a question of making sure that justice is done for those people in exactly the same way as it would be done in any other case. We see no reason whatever why the normal processes of justice should not be applied to would-be immigrants that would apply in any other case.
§ Lord Monson
Although I support the Government on most of today's amendments, the noble Lord, Lord Mishcon, made out a good case for Amendment No. 51. For what it is worth, I support it.
§ Lord Hylton
This is an important new provision and I support it. It is a regrettable fact that in this country there are people seeking asylum who are still in detention after nine months. That is a long time. The point on interpretation and language of the applicant's choice is another crucial matter on which I have corresponded already at some length with the Home Office.
§ Lord McIntosh of Haringey
Despite his long experience in this Chamber, my noble friend still expresses optimism. I do not expect the Government to agree to the amendment, but I certainly expect them to tell us that all these things are happening anyway.
I am always susceptible to logic and emotion, and particularly to the arguments of the noble Lord, Lord Mishcon. I am not unsympathetic to the sentiments giving rise to this provision. It is entirely right that those who wish to consult their legal 1058 representatives should be able to do so, whether or not they are detained. But where the noble Lord and I differ is in incorporating procedural or administrative safeguards which exist into the Bill.
As it stands, the Bill already provides additional safeguards for those seeking asylum. The right of appeal before removal for those seeking entry is fundamental to the Bill and in itself provides protection. However, the noble Lord wants even more for applicants who are detained, thereby creating a two-tiered procedure for detainees: one for those who are not seeking asylum; another for those who are. That, I submit, is a recipe for delay, which we wish to avoid in all cases and particularly when someone is detained.
People arriving at our ports have an obligation to furnish the immigration officer with information. That is fundamental to our system of immigration control and I believe it would be wrong to introduce provisions which might in any way compromise it. In practice, all those who seek asylum on arrival and who are interviewed substantively about their claim are given the opportunity to consult their representative at some stage. If they have no nominated representative they are put in touch with the Refugee Legal Centre.
Similarly, any immigration offender who is arrested in the country and taken to a police station benefits from the codes of practice under PACE. Custody officers are, in those circumstances, required to give written notice of rights and notices are made available in the main ethnic minority languages.
We shall continue to keep under review our procedures for ensuring that all those who are detained are aware of their rights to consultation but I do not believe that it would be right to single out this one category of detainee by incorporating the provisions of this clause into the Bill.
§ Lord Mishcon
I am grateful to the Minister for his usual courtesy. I must confess that although my memory is not as good as it was, I can at least remember the arguments that were advanced on the last amendment. As I understood it, on the last amendment the Minister said that there was a great deal of difference when comparing those who sought asylum, those who came to this country for a short visit and those who came wanting to stay here permanently. If I may say so, it is extraordinary. The part of the vast department of the Home Office which settled one brief must have been different from that which settled the latest brief. There now seems to be a request that all of us regard all those classes as being one and that it would be wrong to differentiate.
I do not want to detain the Committee. However, I want to obtain an assurance from the Minister that in the regulations being drawn—I shall be listening to his reply carefully before I decide what to do at Report stage—there will be a clear statement carrying out the principles of the amendment by way of procedure with asylum seekers who are detained. If that assurance can be given, I shall take a certain course.
The noble Lord, Lord Mishcon, asks for assurances. I shall look carefully at what he said this evening and at Report stage come forward and explain everything in greater detail.
§ Lord Mishcon
I am grateful for the Minister's courtesy and the gracious way in which he spoke. Can he extend that grace by one inch? Can he inform me before Report stage of what his attitude is? I shall then have an opportunity of doing something about it at Report stage.
§ Lord Mishcon
I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
This may be a convenient moment for the Committee to adjourn. I suggest that the Committee stage be resumed at 8.35 p.m.
[The Sitting was suspended from 7.35 to 8.35 p.m.]
Clause 11 [Refusals which are mandatory under immigration rules]:
[Amendment No. 52 had been withdrawn from the Marshalled List.]
Lord McIntosh of Haringey moved Amendment No. 52A:
Page 7, leave out lines 43 to 45.
§ The noble Lord said: With this series of amendments we move to Clause 11 of the Bill which in many ways is as repulsive as Clause 10. It has certainly attracted as much criticism from noble and learned Lords on the Cross Benches and generally the feeling instilled by the clause that it is perfectly proper for administrative decisions to be taken as to which applications are deemed to be entirely without foundation is as objectionable as anything contained in Clause 10. However, as is our wont, we look at the individual provisions of Clause 11 and we consider whether modest improvements can be made to them before we come to consider the matter of the clause as a whole.
Amendments Nos. 52A and 54B, which I should like to consider together, are concerned with age, nationality and citizenship. The Bill as drafted states:
A person shall not be entitled to appeal against a refusal of an entry clearance if the refusal is on the ground that"—
This is our particular concern—
(b) he or any person whose dependant he is does not satisfy a requirement of the immigration rules as to age or nationality or citizenship".
§ There are a number of objections to that. First, the right of appeal is taken away simply on the grounds of the Immigration Rules whereas, of course, other considerations in the Bill refer not only to the Immigration Rules but to the law itself. As has been said a number of times in these debates, the law is much wider than the Immigration Rules. It includes considerations of natural justice; it includes considerations of European law; and it includes statutes which are not necessarily to be found in the Immigration Rules. The Immigration Rules themselves can be changed at any time with the minimum of parliamentary control.1060
§ We wish in these two amendments to point out that age, nationality and citizenship are by no means non-contentious issues. They could give rise to keenly disputed matters of fact. Indeed they have on many occasions given rise to many matters of fact which have quite rightly been the province of the immigration appeals procedure. There seems no justification why these particular aspects of immigration appeals should be automatically excluded from any appeals procedure. So without prejudice to anything we might do to the Bill as a whole, I beg to move Amendment No. 52A.
I hope to explain to the noble Lord, Lord McIntosh, that the Government's arguments on this amendment will be less objectionable to him and that this is not such a contentious issue. As the noble Lord said, the amendments would delete that part of Clause 11 which would remove the right of appeal if a person is refused entry on the grounds that he was not meeting the requirements of the Immigration Rules as to age or nationality or citizenship.
This reason for refusal will affect only a limited number of categories under the Immigration Rules. The categories which contain requirements as to age or nationality are, for example, au pairs who must be nationals of one of a list of specified European countries and must be aged between 17 and 27 years on arrival. They must also be working holidaymakers who must be Commonwealth citizens who are aged 17 to 27 years on arrival and persons seeking to work here without a work permit on the basis of having a grandparent born in the United Kingdom who must be a Commonwealth citizen. In such cases the onus is on the applicant to show that he or she meets those requirements by producing a passport establishing age or nationality.
I believe that the noble Lord will agree with me that it would make no sense, for example, to allow an American who has come into this country as a visitor to stay here pursuing an appeal against the refusal to let him stay to work as an au pair or working holidaymaker when he cannot possibly win that appeal because he is never going to be eligible. That is the important point.
§ Lord Bonham-Carter
Is the noble Lord saying that this amendment is unimportant because it affects only a very few categories? Did I understand the noble Viscount aright when he opened his remarks by saying that it affected very few cases?
No, I did not say it was unimportant. I said that the categories affected were very few because it affected those individuals who were never going to win their appeals because they were never going to satisfy the age or nationality clauses.
§ Lord Bonham-Carter
Is the noble Viscount aware that innumerable cases have come before the immigrant appeal tribunal dealing with precisely those categories? I refer to the age of people coming from the Indian sub-continent, which is a very contentious issue. Nationality is an extremely contentious issue. If Poland joins the European Community it will become 1061 even more contentious. There may be large numbers of Poles today, but in the past it may have been two or three other nationalities. The matter will be extremely contentious. The idea that this issue is not contentious and that it has not arisen in appeals against the Immigration Rules is absolutely illusory. I cannot think who told the noble Viscount that.
I do not agree with the noble Lord. If an immigrant has a passport then it contains his or her age and nationality. That is what we are talking about. They have to be of an age and if they have passports their ages are on them.
§ Lord Bonham-Carter
The noble Viscount cannot have encountered cases where dependants have come in. They have to be under the age of 18. I can give an example where the parent of a dependant had lived in this country for 10 years or more and had finally asked to bring in his family. The question at issue was the age of his eldest son. It was either 17 or 18 years of age. That depended on whether the son was conceived on a visit made by the man in question to the sub-continent or whether he was conceived on another visit. It was a highly contentious issue. The idea which the noble Viscount has that it is not a contentious issue is nonsense.
I have to disagree with the noble Lord because Clause 11 will not affect appeals by people who are seeking to enter or stay in this country as the dependent relatives of someone already settled here. The rules provide for the admission of a person who does not meet the normal age criteria, which is under 18 for children and 65 or over for parents except widowed mothers if there are exceptional compassionate circumstances. In such cases the ground of refusal would be that the person did not qualify because the Secretary of State was not satisfied that there were exceptional compassionate circumstances, not that the person did not meet an age requirement. There will still be a right of appeal in such cases.
§ 8.45 p.m.
§ Lord McIntosh of Haringey
Every word the Minister utters makes the situation worse rather than better. If he is seeking to persuade us that, because of these arcane rules, one has to be between the ages of 17 and 27 and presumably female in order to be an au pair in this country, and that one has to comply with certain nationality rules—which may very well change from year to year just as visa requirements change from year to year—all the Minister is saying is that the Immigration Rules themselves are a sound basis for deciding.
Everyone knows that the Government have absolutely refused to put the Immigration Rules on a statutory basis. They are deliberately retaining the right to change them as they think fit. We are all 1062 supposed to keep up with those changes. Applicants at Sylhet applying to the British High Commission in Dhaka are required to keep up with the changes. The noble Lord, Lord Bonham-Carter, has made it very clear that these rules are highly contentious.
Can the Minister give me any figures about the numbers of appeals, for any period of years which he cares to choose, which involve questions of age, nationality or citizenship? My information—which is confirmed by the example which the noble Lord gave—is that a considerable number of appeals involve disputed questions of age, nationality or citizenship. If the Minister is saying that it does not matter because the rules are clear, I must point out that he did not make them sound very clear. He has to find a better argument than that for denying appeals in those cases.
The examples which the noble Lord, Lord Bonham-Carter, made were about dependent relatives. I said quite clearly that Clause 11 will not affect appeals by people who are seeking to enter or stay in this country as the dependent relatives of someone already settled here. So that category is out. I hope that the noble Lord, Lord McIntosh, appreciates that. Obviously, I cannot categorise the number of appeals or the other circumstances. The point I was trying to make as regards the working holidaymaker or the au pair is that the passport either gives an age or it does not. There is no real basis on which one can appeal if one knows that the appeal is never going to be won.
§ Lord McIntosh of Haringey
There is a long history of entry clearance officers refusing to believe the evidence of passports. There is also a long history of denying the evidence produced to them by applicants for entry. It is extraordinary because we are talking about harmless groups of people. I appreciate that the idea of dependent relatives gets steam up in all kinds of right-wing circles, but we are not talking about that. As the Minister rightly said, we are talking about au pairs, working holidaymakers and people wanting to work in this country without a work permit.
It is exactly questions of age, nationality and citizenship that are contested and are the basis of justifiable appeals. I am not in any way satisfied by the answer which the Minister has given. I do not give any undertaking that we shall not return to this matter in one form or another at a later stage, but in order to make progress I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 52B:
Page 8, leave out lines 1 and 2.
§ The noble Lord said: In moving this amendment I shall speak also to Amendment No. 54C. Here we are concerned with the issue which I touched on in dealing with the previous amendment. It is the difference between the immigration rules and immigration law in its wider sense.
§ I give an example of what I mean in these amendments. A citizen of the European Community comes to this country for six months and looks for 1063 work. He is given another six months, but he does not find work and applies again to extend his leave. As he has not found work, the Home Office refuses to treat him as if he were provided for by the Treaty of Rome and treats his application merely as an application to stay as a visitor. Those are subjective questions and matters of judgment. It could well be that issues of European Community law arise from questions of that sort. It is not something that is self-evident.
§ The point that must be made throughout our consideration of this clause is that it is about claims which the Government are asserting are self-evidently wrong. The whole clause is about that. I suggest that in all these cases—in the cases that we dealt with in relation to the previous amendment and now in this case—the claims are not self-evidently wrong. Perhaps I may take another example. Let us suppose that a citizen of Zimbabwe comes to look for work on the basis of his ancestral connection with this country. An immigration officer discovers documents which he believes show the person to be of dual South African-Zimbabwean nationality. He believes that South Africa does not permit dual citizenship. He does not believe the assertion of the person seeking entry that he has renounced South African citizenship, so he refuses him permission to enter on those grounds.
§ Under the clause as drafted, there is no right to appeal despite the fact that there is an entry clearance and despite the fact that in other circumstances—and certainly at any time during the past 21 years—such a person would have had the right to appeal against refusal of entry before removal. What else does "entry clearance" mean except the right to a proper consideration? But that is what is being denied in this clause. The particular damage done by those two subsections are the subject of these two amendments. I beg to move.
Perhaps I might immediately advise the noble Lord, Lord McIntosh of Haringey, that Clause 11 would not affect European Community nationals seeking work here. The provisions of the rules relating to the maximum period of stay do not apply to people exercising their Community right of free movement.
The provisions in Clause 11 relating to the maximum period permitted under the Immigration Rules would affect three categories of person. Visitors are allowed under the rules to spend a maximum of six months here on any one visit. Au pairs and working holidaymakers are permitted to spend a maximum of two years here in total. The length of time a person has been in this country in a particular category can be readily established by reference to the stamp on his or her passport. A visitor will normally be given leave to enter for a maximum six-month period. If a visitor applies during that six-month period to extend his visit, and if he can show exceptional reasons—for example, that a relative here may have fallen ill, or there may be some genuine difficulty over travel arrangements—the Secretary of State may exercise a discretion outside the rules to waive the maximum period and let him stay longer. That discretion is unaffected by Clause 11. The 1971 Act does not allow an adjudicator to overrule any refusal by the Secretary 1064 of State to exercise his discretion to waive the rules, so an appeal by a person who admits that he has already been here for six months as a visitor is bound to fail. But, at present, he has the right to stay here until that appeal is disposed of, which can easily be a year or more. The result of such an appeal is bound to be no. That is simply an invitation to those who have no claim to stay but are determined to do so, to put in appeals in order to play the system for as long as possible, and to clog up the system, which will not benefit others in the system.
§ Lord McIntosh of Haringey
I suspect that this is a special case and something which we can probably deal with more profitably when discussing the next two amendments, which relate to appeals that are or should be based on grounds of fact rather than simply on grounds of law. I suspect that it would be unprofitable for us to pursue the matter of the special case referred to in Amendment Nos. 52A and 54C. As I shall return to the subject under debate in our discussions on the next amendment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 53 and 54 had been withdrawn from the Marshalled List.]
Lord McIntosh of Haringey moved Amendment No. 54A:
Page 8, line 4, at end insert ("except that a person shall be entitled to appeal (either against a refusal of an entry clearance or leave to enter) on the grounds that, on the facts of his case, any of the grounds (3B) (a) to (c) do not apply.").
The noble Lord said: In moving Amendment No. 54A, I should also like to speak to Amendment No. 54D. Here, we are concerned with the broader issue, which is a particular worry to those who are most well-informed about immigration law. On page 8 we propose to insert the words:
except that a person shall be entitled to appeal on the grounds that, on the facts of his case, any of the grounds … do not apply".
§ The reason that there are two amendments is that we want to draw a distinction between rights of appeal in respect of refusal of leave to enter at a port of entry, and refusal of an entry clearance, which would take place normally at a post overseas. Without this amendment, a person could arrive at a port of entry holding an entry clearance and yet not be entitled to appeal against the refusal of leave to enter.
§ At present, the Immigration Rules provide narrow grounds on which the holder of an entry clearance can be refused entry. These are contained in the draft Immigration Rules which can be changed at any time. Until now there has always been (and there is at present), a right of appeal before removal. I suggest to the Committee that it would be quite wrong to prevent holders of entry clearance from appealing against refusal at a port by so effectively extending the narrower range on which entry can be refused—for example, on the grounds that false representations were made to get the entry clearance, as in paragraph 17 of the Immigration Rules. The effect of that would be that persons coming into the ports in that way would be in a worse position than other holders of entrance clearances who were refused entry. It would 1065 seriously undermine the whole basis of prior entry control which is, after all, the way in which the Government exercise their control over entry. The vast bulk of that control is carried out overseas.
§ We are arguing that to extend the grounds of refusal for those who have come in with entry clearance and to deny appeal against refusal is to deny justice on two grounds. First, it is making an administrative change in the basis for the consideration of entrance clearance. Secondly, it is making absolutely certain that those administrative changes cannot be challenged in any way in the courts. I beg to move.
§ 9 p.m.
As the noble Lord, Lord McIntosh of Haringey, said, these amendments would allow a person, whose application had been refused on the grounds that he does not meet one of the mandatory requirements of the Immigration Rules described in Clause 11, to appeal on the grounds that on the facts of his case the relevant ground of refusal did not apply to him.
The amendment is, no doubt, intended to meet the concern raised by the noble and learned Lord, Lord Donaldson of Lymington, on Second Reading. The noble and learned Lord argued that the existence of a right of appeal should not rest solely on the ground of refusal stated by the officer taking the decision, and that there should be some form of redress against the possibility of error by the officer who took the decision.
In fact, the amendment is unnecessary because there is already provision for such a safeguard. Before coming on to the nature of that safeguard, it may be helpful to explain the kind of case we are considering. We are not concerned in Clause 11 with cases which turn on an officer's assessment of the applicant's true intentions, or on any dispute about the applicant's credibility. Clause 11 affects only cases which are refused because the applicant fails to meet certain criteria set down in the rules. I shall turn to the first of those criteria, as the second and third have already been dealt with in previous amendments.
The Immigration Rules require anyone arriving in the United Kingdom to produce a passport or a document satisfactorily establishing his identity and nationality. The rules require that citizens or nationals of certain countries require a visa to enter the United Kingdom. The rules require that, with limited exceptions, people coming here to work must have a work permit. The rules require that people of any nationality coming for settlement or other long-term purposes, such as setting up a business, must obtain an entry clearance from a British post overseas before they come here. The issue in relation to all those requirements of the rules is a simple one: does the person have the required document or not? The onus is on the person seeking entry to produce the required document to the immigration officer. He would also need to produce it to win any appeal against refusal based upon lack of the required document. Let us take, for example, a person who is refused entry on the 1066 grounds that he is a visa national and does not hold a visa. In order to appeal successfully at present, he would have to produce a passport showing that he was not a visa national or a passport containing a valid visa. The likelihood of a person who could produce such a document having been refused on that ground in the first place is very remote indeed.
But there is, as I have said, already a safeguard against that remote possibility. If a person who is refused on one of the grounds set out in Clause 11 nevertheless gives notice of appeal, the Home Office or the immigration officer would be required to submit to an adjudicator under Rule 8 of the Immigration Appeals (Procedure) Rules 1984 an allegation that the person is not entitled to appeal. The adjudicator would have to decide, as a preliminary issue, whether that allegation is correct. If the existence of a right of appeal in a particular case is disputed, the final say does not, therefore, rest with the officer taking the decision, but with an adjudicator.
The holder of an entry clearance cannot, under the Immigration Rules, be refused leave to enter on any of the grounds set out in Clause 11. All holders of a valid entry clearance will retain the right of appeal in this country if they are refused entry. That is a complicated explanation, for which I apologise to the noble Lord, Lord McIntosh, but I hope that I have set out why we believe that the amendment is unnecessary.
§ Lord Pitt of Hampstead
I am a little worried about this. When we agreed to entry clearance it was on the clear understanding that there would be a right of appeal in this country, because we then accepted that mistakes could be made. The whole tenor of the clause is that immigration officers are infallible—they cannot make mistakes—because if they make a mistake there is nothing that one can do about it. That is what this debate is all about. I am sure that the Government have not thought this matter through. If one follows it through, one can of course say that a person should have his passport.
I know people who were born, let us say, on the 18th of a month whose birth certificates show that they were born on the 19th. I was able to prove that, because I knew that they were born on the 18th. Even documents are not necessarily accurate. The suggestion that there will be no way that that person can show that there was a mistake is something that I find difficult to take in. The Government should think about the matter a little more seriously. We are dealing with people. I do not say that we are dealing necessarily with their lives, but we are dealing with their comfort and well being. We should be able to be a little more accommodating. Why are the Government so unaccommodating?
§ Lord Bonham-Carter
I do not understand the Minister's answer to the amendment. Am I right in thinking that he is saying that someone who is refused entry on grounds set out in the Bill will be unable to appeal on the grounds that the grounds upon which he was not allowed in are untrue?—that is, that he did have the required document, that he was of the necessary age or that he was a citizen of one country 1067 or another. I may be wrong. Am I to understand that those rights of contesting the facts of the case will be removed?
§ Lord Hylton
Before the Minister replies, will he give me an assurance that nothing contained in Clause 11 will diminish the existing rights of asylum seekers? That may be a difficult question to answer. If he cannot reply now, will he please write to me?
I can answer the noble Lord now. Clause 11 has nothing to do with asylum seekers. That is different. In answer to the noble Lord, Lord Pitt, the onus is upon the person seeking entry to produce the required document to the immigration officer. When we get on to an aeroplane to go to another country, wherever that country may be, the onus is on us as the traveller to make some attempt to obtain the document that will allow us into that country. That must be common sense. It must be our responsibility to use our best efforts to obtain that document. A person would need to produce the document to win an appeal against a refusal based on the lack of the required document. If they have the document, they will show it when they arrive.
§ Lord Pitt of Hampstead
All I am saying is that there may be some mistake in the first instance. The Minister is saying that if a mistake was made in the first instance, he cannot appeal. If a person can appeal, he can prove that a mistake was made in the first instance. That is what I am saying.
I believe that I have answered the noble Lord's question. I can repeat what I said but I hope that the noble Lord will read it and will return to the matter if he has any further questions.
§ Lord Bonham-Carter
It is a simple question. I asked the noble Viscount whether, if someone contests the issue, or says that he had the document and that he is of a certain nationality and age, and it was on one of those grounds that his entry was refused, can he not appeal? What is he to do under the new dispensation?
In order to appeal successfully at present he would have to produce either a passport showing that he was not a visa national or a passport containing a valid visa. Therefore, the likelihood of a person who could produce such a document having been refused on that ground in the first place is remote. He has an appeal on that preliminary issue.
§ Lord McIntosh of Haringey
The Minister apologised to me for the complexity of his first answer. I do not doubt that the issue is complex. However, in answer to other questions he attempted to simplify the matter and I suspect that in doing so he gravely over-simplified. There is a danger that, unwittingly, the Committee may have been given misinformation.
I must cling on to what I understand. I understand that the clause is about the removal, from those whose case is asserted by the Government to be without foundation, of the rights of appeal. The claim "being without foundation" is defined in certain subsections 1068 of the 1971 Act, which are rewritten in this clause. The Minister has constantly made the assertion that—I am never sure which comes first—because the claims are without foundation no appeal is likely to have any effect.
I have heard no evidence of that. When I asked for evidence of the number of appeals that have taken place on the basis of age, nationality, citizenship or overstaying leave, or on any other issue of fact—which would include the issue of what is contained in a passport or visa—the Minister was unable to deny the assertion which I make on the basis of evidence supplied to me that a number of appeals exist on those cases. They are claimed by the Government to be without foundation but, when they come to appeal, which at present is allowed, the facts are not so simple or so clear as the entry clearance officer or the immigration officer has claimed. Therefore, an appeal is a valid and necessary procedure.
Perhaps I may concentrate on Amendment No. 54A, although my remarks apply to all my amendments to the clause and to the clause as a whole. The Government are saying that the very assertion which gave rise to the conclusion that the appeal is without merit is put in issue by an assertion that the ground of decision-making is factually misconceived. There is a good precedent for what we are saying. Section 5 of the Immigration Act 1988, which prevents a deportation appeal on the merits unless a person has been in the UK for more than seven years, contains a proviso which states that such a person is not entitled to appeal:except on the ground that on the facts of his case there is in law no power to make a deportation order for the reasons stated in the notice of the decision".The wording is similar to that in our amendment. Under Section 5 of the 1988 Act he can make the assertion that he is not an overstayer because he is an EC or British citizen with free movement rights and that therefore there is no power to make a deportation decision on the grounds that he has overstayed.
I am not arguing or raising a particular case. All I am saying is that in practice there are disputes about what are claimed to be the facts. Section 5 of the 1988 Act makes provision for exactly that kind of issue; that is for the facts of the case to be put in question. The Minister was over-complicating his read reply, his brief, and has over-simplified his response to later questioning. I am not at all satisfied that an adequate answer has been given to this pair of amendments. It is clear that I have not persuaded the Minister to respond in time—
I should be the last person to wish that the noble Lord, Lord McIntosh, would be in any way confused by what I have said. He said that I might inadvertently have misled the Committee but I do not believe that that is the case. I hope that when the noble Lord reads what I said he will see that that is not so.
If I may make one point to the Committee again, I would just repeat that, if a person who is refused on one of the grounds set out in Clause 11 nevertheless gives notice of appeal, the Home Office or the immigration officer is required to submit to an adjudicator under Rule 8 of the Immigration Appeals 1069 Procedure Rules 1984 an allegation that the person is not entitled to appeal. The adjudicator would have to decide as a preliminary issue whether that allegation was correct. Therefore, if the existence of a right of appeal in a particular case is disputed, the final say does not rest with the officer taking the decision but with the adjudicator. I know that that does not go as far as the noble Lord, Lord McIntosh, would like, but I wanted to make that point clear to the noble Lord.
§ 9.15 p.m.
§ Baroness Seear
May I ask a question to clear my mind, which is totally fogged by all this? Take the case where he needed a visa. It was said that he needed a visa. When he got to the entrance the officer said, "You haven't got your visa. You can't come". The man insists that with his country he did not need a visa. It could well be true. Even immigration officers make mistakes. He did not need a visa from the country he came from. Can he appeal to establish that the country from which he came did not require a visa, and therefore that the immigration officer was wrong and consequently he ought to be allowed in?
He can make exactly that appeal, as I have just said, and it will go to the adjudicator in that type of case.
§ Lord Bonham-Carter
I am sorry to go on with this, but this clause deals with dependants, a matter which earlier the noble Viscount said was outside the other question I put to him. He will see under Clause 11(1) (3B) (c) that a dependant cannot now appeal, as I understand it, if he does not satisfy the immigration officer as to his age. Am I right in thinking that that is so? If I am right, does not the noble Viscount agree that this was a perennial ground of appeal to the immigration appeals tribunals in the past?
The noble Lord asked me almost about specific cases. I have spoken, I hope clearly, about the adjudicator. Of course if someone then goes back to the country from which he has come, he can always appeal. That is always open there. What we are talking about is people arriving in this country without the documents.
§ Lord McIntosh of Haringey
Before the Minister rose last time I was about to seek the opinion of the Committee. I have decided not to, on the grounds that the mischief done by the two subsections that will be taken out by these amendments is less serious than the mischief done by the clause as a whole, to which we shall come in a moment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 54B to 54D not moved]
On Question, Whether Clause 11 shall stand part of the Bill?
§ Lord McIntosh of Haringey
Having tried our best to act as a responsible revising Chamber we must now come to the core of the issue on Clause 11. I cannot do better than introduce my remarks by quoting the noble and learned Lord, Lord Donaldson, at Second 1070 Reading, at col. 1169 on 26th January. I shall try to stop at a reasonable time, but I am tempted to read a considerable amount of what he said.However, Clause 11 is the really vicious clause—I use the word advisedly. It is not limited to short-term applicants. It provides that to Section 13 (the primary right of appeal section) we are to add subsection (3B), which states:'A person shall not be entitled to appeal against a refusal of an entry clearance if the refusal is on the ground that', and there follow three grounds.He went on:Let us look at the words. Subsection (3B) says 'if the refusal is on the ground that'. Those of us who have dealt with immigration cases know that the proposed immigrant is given a piece of paper on which there is a blank to be filled in by the immigration officer. I imagine that there is an equivalent one for entry clearance certificates. It says, 'I have refused leave to enter on the grounds that'. There then appears a colon, a dash and a blank where he inserts in manuscript whatever is the reason".I will spare the Committee reading any more of this because the conclusion is clear that all these matters that have been the subject of particular amendments come under the same difficulty, and the difficulty is that both in (3B) and then in subsection (2) (2A) the phrase used is:if the refusal is on the ground that".That leaves to the immigration officer or the entry clearance officer the entire freedom to state whatever ground he or she thinks fit for refusing entry. It is on the statement of the immigration officer or the entry clearance officer that the right to appeal depends. It does not depend on the facts or the evidence produced. It depends on what the entry clearance officer or immigration officer says. If the entry clearance officer or the immigration officer has used any of the grounds set out in the subsections to this clause, then refusal is deemed to be mandatory and the right of appeal is taken away. I suggest that it should not be the prerogative of people in those positions, simply by what they say in a document of this kind, to deny the right of appeal on the spurious ground that refusal is mandatory. They are making it mandatory by their own actions and are denying the right of appeal accordingly.
That is being done entirely on the basis of the Immigration Rules. I suggest to the Committee, as I have suggested on more than one occasion, that there is the possibility of conflict between Immigration Rules and the law which comes into play on this matter. The law includes natural justice, administrative law and European Community law. That may conflict with what is provided in the Immigration Rules from time to time. We sought to show, I believe with some degree of success last week, that the draft Immigration Rules, which we insisted on discussing during consideration of the Bill, conflicted on many occasions with the 1951 convention on refugees which purports to be the overriding authority for this Bill. I suspect, and I claim, that the Immigration Rules do now conflict and will continue to conflict with other aspects of the law to which those considering an appeal would have to have regard but to which an immigration officer working only to non-statutory immigration rules would not have to have regard.
I suggest to the Committee that the provisions which take away the right of appeal on administrative 1071 rather than legal grounds are a denial of justice and should not be included in the Bill. I hope that the Committee will reject this clause altogether.
§ Lord Bonham-Carter
I support the noble Lord, Lord McIntosh. As in Clause 10, this clause deals with the withdrawal of rights of appeal. That is an extremely serious matter. The sidenote, which I always find very revealing, states:Refusals which are mandatory under immigration rules".That sidenote gives a spurious authority to the assumption which lies behind this clause; namely, that the refusals are not contentious in the first place and that, therefore, the appeals cannot succeed. I contest both of those assumptions. I argue that the refusals are contentious and that in many cases the appeals do succeed.
I repeat what the noble Lord, Lord McIntosh, said. This whole clause neglects the fact that the rules are subject to the law. The law cannot be neglected. The Immigration Rules must be in accordance with the law. As the noble Lord said, the applicable law is not just immigration law but it is also natural justice—the noble Earl said that we are making a mountain of that but I am happy to make a mountain of natural justice because it is a good mountain—administrative law and European Community law. The rules must also take into account the Secretary of State's discretion, an important matter which cannot be neglected.
Finally, I return to what I have said all too often this evening. The categories of cases where the right of appeal has been removed are extremely contentious. Age, citizenship, even British citizenship which has changed on several occasions, and European citizenship are all highly contentious matters. The idea that they can be settled by an immigration officer without any right of appeal seems to me outrageous.
Clause 11 removes the right of appeal against decisions taken on certain specified grounds, where the applicant does not meet a mandatory requirement of the immigration rules. It is worth explaining why such appeals cannot succeed at present. The power of the appellate authorities in determining an appeal is set out in Section 19 of the 1971 Act. Subsection (1) provides that an adjudicator shall allow an appeal if he considers that the decision involved was not in accordance with the law or any acceptable immigration rules, or where a decision involved the exercise of discretion, if he considers that the discretion should have been exercised differently. In all other cases, he must dismiss the appeal.
Subsection (2) provides that a decision which is in accordance with the immigration rules is not to be treated as involving an exercise of discretion simply because the Secretary of State has declined to depart from the rules. It is right and necessary that the Secretary of State should retain a residual discretion to waive the requirements of the immigration rules in exceptional cases. The flexible use of exceptional leave in asylum cases is the obvious example of a need for this.
However, the general expectation in the non-asylum cases with which this clause is concerned must be that the immigration rules, which reflect the policy 1072 laid down by the Secretary of State and approved by Parliament, will be applied; and the function of the appellate authorities is simply to ensure that the rules have been applied correctly in individual cases. If the appellate authorities were able to direct the Secretary of State to waive the rules in particular cases, then they would in effect be determining immigration policy, which is not their proper function.
Some immigration rules provide for the exercise of discretion: for example, a decision to deport is always discretionary. Other rules contain requirements that the Secretary of State or the immigration officer have to be satisfied of certain matters which can only be tested by a balance of probabilities, such as for example, a person's intention to leave the United Kingdom at the end of a period of study. In both those cases there is room for argument as to whether the decision is correct, and an appeal may be either allowed or dismissed.
However, some rules contain a requirement which must be met if the application is to succeed, where the question of whether the requirement is met can easily be determined on the basis of documentary evidence. When such a requirement is not met the adjudicator has no option but to dismiss the appeal when it eventually comes before him. The existence of a right of appeal in such cases does nothing to redress genuine grievances. It serves only to enable those appellants who have no claim under the immigration rules to remain in this country to spin out their stay here in pursuing hopeless appeals, while delaying the hearing of other appeals which involve issues of substance, and thereby clogging up the system. That is why Clause 11 is an important clause in this Bill.
§ Lord Pitt of Hampstead
I am looking at this clause again. One of the reasons why a man can be told he cannot appeal is that he has not had entry clearance. But entry clearance might be the very thing on which he wishes to appeal. I am afraid, as has been said earlier, that the Government have not—
I am sorry to interrupt the noble Lord, Lord Pitt, but of course if a person does not have entry clearance he has an appeal in the country where he is trying to get a certificate of entry.
§ Lord McIntosh of Haringey
I am afraid what is happening here is that the noble Viscount is simply repeating the assertions which have been made and not providing any further evidence for them. I do not think that Clause 11 is an exceptionally complicated clause. Its intention is very clear. The intention is to remove rights of appeal in circumstances where entry clearance officers or immigration officers have decided to write down in a certain form a reason for refusal.
There is no suggestion in the clause as drafted that there could be any possibility of error on the part of entry clearance officers or immigration officers. I do not say that with any antagonism towards entry clearance officers or immigration officers. I know that many Members of another place have serious grounds for doubt about the impartiality or efficacy of some of the decisions reached, but I have no such grounds or personal knowledge. However, it is unfair to a body of 1073 people who have to apply administrative rules such as the draft Immigration Rules to deny them the possibility of their decisions being challenged on appeal. It is in their interests as well as in the interests of applicants that there should remain an appeal procedure.
In all of the questioning which was undertaken in the consideration of the detailed amendments, no evidence was produced by the Government to show that the matters of fact which are claimed to be sufficient to justify mandatory refusals are inviolate. There has been no denial of our claim that on almost every one of the matters of fact to which we referred in detailed amendments there could be doubt. That doubt ought to be subject to appeal just as the other grounds are subject to appeal.
I agree with the noble and learned Lord, Lord Donaldson, that this is a vicious clause. I do not believe that it should be in the Bill. I invite the Committee to reject it.
§ 9.32 p.m.
§ On Question, Whether Clause 11 shall stand part of the Bill?
§ Their Lordships divided: Contents, 81; Not-Contents, 41.1074
|Division No. 3|
|Archer of Weston-Super-Mare, L.||Hesketh, L. [Teller.]|
|Arran, E.||Holderness, L.|
|Astor, V.||Howe, E.|
|Barber, L.||Jeffreys, L.|
|Blatch, B.||Jenkin of Roding, L.|
|Boardman, L.||Kimball, L.|
|Borthwick, L.||King of Wartnaby, L.|
|Brabazon of Tara, L.||Long, V.|
|Braine of Wheatley, L.||Lyell, L.|
|Bridgeman, V.||McColl of Dulwich, L.|
|Brougham and Vaux, L.||Mackay of Ardbrecknish, L.|
|Buckinghamshire, E.||Mackay of Clashfern, L.|
|Butterworth, L.||Monk Bretton, L.|
|Cadman, L.||Mountevans, L.|
|Caithness, E.||Moyne, L.|
|Caldecote, V.||Murton of Lindisfarne, L.|
|Carnegy of Lour, B.||Onslow, E.|
|Carnock, L.||Prentice, L.|
|Chalker of Wallasey, B.||Reay, L.|
|Clanwilliam, E.||Rodger of Earlsferry, L.|
|Colnbrook, L.||Romney, E.|
|Craigmyle, L.||St. Davids, V.|
|Cranborne, V.||Seccombe, B.|
|Cumberlege, B.||Skelmersdale, L.|
|Denton of Wakefield, B.||Stewartby, L.|
|Downshire, M.||Stodart of Leaston, L.|
|Eccles of Moulton, B.||Strathclyde, L.|
|Elphinstone, L.||Strathmore and Kinghorne, E. [Teller.]|
|Ferrers, E.||Thatcher, B.|
|Finsberg, L.||Thomas of Gwydir, L.|
|Flather, B.||Torrington, V.|
|Fraser of Carmyllie, L.||Trefgarne, L.|
|Gardner of Parkes, B.||Trumpington, B.|
|Goschen, V.||Ullswater, V.|
|Grimston of Westbury, L.||Vivian, L.|
|Hacking, L.||Wakeham, L.|
|Harmsworth, L.||Whitelaw, V.|
|Harvington, L.||Wise, L.|
|Hayhoe, L.||Wynford, L.|
|Acton, L.||Jay of Paddington, B.|
|Beaumont of Whitley, L.||Judd, L.|
|Bonham-Carter, L.||Lockwood, B.|
|Buckmaster, V.||McGregor of Durris, L.|
|Carmichael of Kelvingrove, L.||McIntosh of Haringey, L.|
|Cocks of Hartcliffe, L.||Mackie of Benshie, L.|
|David, B.||Mallalieu, B.|
|Dormand of Easington, L.||Masham of Ilton, B.|
|Eatwell, L.||Mishcon, L.|
|Ewing of Kirkford, L.||Monkswell, L.|
|Falkland, V.||Newcastle, Bp.|
|Graham of Edmonton, L. [Teller.]||Parry, L.|
|Pitt of Hampstead, L.|
|Grey, E.||Ripon, Bp.|
|Hamwee, B.||Robson of Kiddington, B.|
|Harris of Greenwich, L.||Rochester, L.|
|Hollis of Heigham, B.||Russell, E.|
|Holme of Cheltenham, L.||Seear, B.|
|Hooson, L.||Taylor of Blackburn, L.|
|Howell, L.||Tordoff, L.|
|Hylton, L. [Teller.]||Winchilsea and Nottingham, E.|
§ Resolved in the affirmative, and Clause 11 agreed to accordingly.
§ 9.38 p.m.
§ Lord Mishcon moved Amendment No. 55:
§ After Clause 11, insert the following new clause:
§ ("Funding and administration of legal advice.
§ 1988 c. 34
- (a) for the making of arrangements whereby advice and assistance is provided for persons such as are mentioned in section 10 (1) and (3) of this Act; and
- (b) for the remuneration out of the legal aid fund of solicitors or other advisers providing advice and assistance under the arrangements.").
§ The noble Lord said: If a citizen of ours has a civil case over a quarrel with his grocer, he will be entitled, if he has a prima facie case and is within the limits of means, to legal aid and to be represented by an advocate in court. We are dealing in the Bill with people to whom a decision about asylum may be the difference between life and death or safety and torture. Yet at the moment, there is no right for an asylum seeker to have legal aid, if he goes to appeal, and to have an advocate of his choice within the legal aid scheme.
§ I believe that I can state the case as effectively with those few sentences as if I addressed the Committee for a long time. I only add to that submission a hope that when replying the Minister will not refer to the right to go to UKIAS, or the successor of UKIAS, in order to obtain the right of representation. In its annual report issued recently, that body said frankly that it does not have the funds, the personnel or the means to fulfil that task. I beg to move.
§ Baroness Seear
I support this amendment to which I put my name. I fear that to do so is an exercise in the triumph of hope over experience because the amendment urges the Government to apply the normal rules of justice, to allow a proper appeal and for it to be properly financed so that the matter can go to appeal. As the Government have been turning down argument after argument based on the normal rules of justice, I do not seriously expect the amendment to be accepted but I go on hoping that the Government will do so.
The amendment moved by the noble Lord, Lord Mishcon, and Amendment No. 69 seek to extend the availability of legal aid for assistance with appeals by asylum seekers. Assistance by way of representation is not generally available for tribunal hearings, and there seems to be no reason why an exception should be made for those appearing before special adjudicators or immigration appeals tribunals. This is not to say that such people would receive no assistance from the legal aid scheme; they would be able to seek advice and assistance from a solicitor under the green form scheme, provided that they were eligible to do so. Once an appeal has got as far as the Court of Appeal, full civil legal aid is available if the necessary means and merits tests are met. There are no plans to change this.
I am afraid that I shall disappoint the noble Lord, Lord Mishcon, by saying that one of the main reasons why legal aid is not necessary is that the advice, assistance and representation are already available from the Refugee Legal Centre which is funded by the Government under Section 23 of the Immigration Act 1971, to provide those services. We do not accept that there is therefore a need to establish an alternative source of government-funded representation in appeals hearings.
We feel that it is not appropriate in the Bill to seek to deal with the availability of legal aid. That is a matter for regulations made under the Legal Aid Act. Therefore, I am afraid that I could not advise the Committee to accept the amendments.
§ Lord Mishcon
I was so much more optimistic than the noble Baroness, Lady Seear. I suppose it is as a result of the disappointments that are very often experienced by the Liberal Democrats that she was rather more pessimistic than I.
§ Lord Tordoff
Perhaps the noble Lord will give way. Does he realise that, were we not natural optimists, we would not have stayed all these years with the Liberal Democrats?
§ Lord Mishcon
The noble Lord has a point. I must say that I was very disappointed with the Minister's reply. I believe that in his heart of hearts he would have wished to give a different one. I repeat, this is a tribunal which on appeal will decide somebody's life or death in many cases. And I am told in reply that we do not usually give representation to tribunals—as though this were exactly the same as an industrial tribunal or other tribunals, and as though we were dealing with matters of that kind.
The green form scheme was mentioned. It looked a little while ago as though the green form scheme would not be available at all. But the Government had second thoughts. I do not know for how long that green form scheme will be available for preliminary advice to asylum seekers. But I know that the noble and learned Lord the Lord Chancellor recently made an announcement of policy, which is to be discussed, where the green form scheme is to be limited to people on the breadline. I repeat, this is still only a matter of preliminary advice.
1076 Does the Committee believe that we should treat asylum seekers thus? They have so often in our history over the centuries found a warmth of welcome on these shores and by and large have rewarded this country for the hospitality they were given. Are we to say that we will not even afford them the chance of being properly represented before a tribunal consisting of nationals of this country when they are not nationals of this country, do not know our customs and to a large extent do not know our language? If the Committee is content with that and the Government are content, may I be forgiven for saying that we are not doing our duty?
On Question, amendment negatived.
Clause 12 [Carriers' liability for transit passengers]:
§ Lord Mountevans moved Amendment No. 56:
Page 9, leave out lines 2 to 6 and insert:
("(a) may specify a description of persons only by reference to nationality;").
§ The noble Lord said: We come at last to Clause 12. It may be for the convenience of the Committee if, in speaking to this amendment, I speak also to my Amendments Nos. 57 and 60.
§ Amendment No. 56 seeks to tighten up the present wording of Section 1A(2) of the clause. As drafted, the clause refers to orders made on the grounds of nationality, citizenship, origin or other connection. Although grounds of race, colour or religion are excluded, it still seems to me that the words "or other connection" are capable of very broad interpretation. Kurdish-born Turks could suddenly become subject to an order, as could, for example, Iranian businessmen living and working in the USA.
§ The opportunities for combining a nationality facet with a citizenship facet allied with that catch-all "origin or other connection" seem to me to be endless. I see that endlessness as a burden on the long-suffering check-in clerk overseas. How does he or she establish a prospective passenger's bona fides? Many carriers work hard, albeit reluctantly, to comply with the Government's wishes on carriers' liability. Their commitment is recognised in the new Home Office guidance, which refers inter alia to the carrier's previous record, to the approved gate check system and to audited high standards of document checking. I believe that legislation should be as rigid as possible, rather than being capable of infinite flexibility and variety—hence Amendment No. 56.
§ I turn to Amendment No. 57. The carriers' liability Act was introduced in 1987 to address a specific emergency problem—an influx of Tamils escaping from the Sri Lankan civil war. The Act is with us still. Although carriers have always been liable to bear the costs of repatriating passengers denied permission to enter a country, the Home Office added a financial penalty—one which has been imposed more than 50,000 times since 1987 and has done little to stem the flow of asylum seekers.
§ The Act remains on the statute book. Adding transit passengers simply makes it more onerous. Amendment No. 57 therefore seeks to time limit orders made under Clause 12. If Her Majesty's 1077 Government see a short-lived problem such as the Tamil one of 1987—the present and regrettable Yugoslavian situation is perhaps a new example—the order should be time limited. That would not deprive Her Majesty's Government of their power in the future to introduce an order should emergencies arise.
§ Mention of the current problems in Yugoslavia brings me to Amendment No. 60. The recent imposition at extremely short notice—perhaps 36 to 48 hours—of a visa requirement for nationals of the former Yugoslavia, placed Yugoslavians in considerable difficulty. Visas are not easily obtainable in that war-torn country.
§ I realise that departments of state must each have their own priorities. I am aware of current financial constraints. But those factors, when allied, will make access to visas an increasing problem, not least for transit passengers. For example, if I may move to a slightly more peaceful country, we no longer have a consulate in Ankara, Turkey's commercial capital. I doubt if a Turkish businessman wishing to transit north-western Europe on his way across the Atlantic, or indeed those from other countries where a transit visa may become a requirement under Clause 12, will make the effort to obtain one if they can avoid the strain by routing via countries not making such a demand—and there are a number of them. Other national carriers and other nations' airports will gain from our loss. That would hardly be seen to be contributing towards the encouragement of a healthy British aviation industry by which government have rightly set such store for so long. That is evidenced perhaps most recently by my honourable friend the Minister for Transport in London when he replied to an aviation debate in another place eight days ago. To reconcile that wish with other conflicting ones we need to ensure that our missions overseas are at those points where transit visa demands may arise and that missions are adequately staffed. I beg to move.
Under the terms of the clause, the Secretary of State is able to specify a description of persons who can be made subject to the transit visa requirement by reference to their nationality, citizenship, origin or other connection with any particular country or territory. But that description is qualified by the words,but not by reference to race, colour or religion",which make it clear to all that the new provisions like the existing immigration controls will be operated without racial prejudice or discrimination.
Amendment No. 56 seeks to refer only to nationality. But that would exclude a large number of people; for example, those whose nationality is doubtful or those who are stateless. The term "nationality" does not describe necessarily the status of every person, and it is for that reason that the parameters within which persons may be described for the purposes of any order made under Clause 12 should extend to citizenship, origin or other connections with any particular country or territory. I can, however, assure my noble friend that the criteria 1078 we shall use will relate only to matters akin to, but not necessarily confined to, nationality such as the type of passport or travel document a person holds.
§ Lord Mountevans
I am grateful to my noble friend for that reply, which I shall study with a degree of interest. I have, of course, the option of coming back when I have considered his reply. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 57 not moved.]
§ The Lord Bishop of Ripon moved Amendment No. 58:
Page 9, line 19, at end insert:
("() Persons under the age of 18 shall be exempt from the provisions of this Act."").
§ The right reverend Prelate said: A recent analysis of the effects of the Immigration (Carriers' Liability) Act suggests that genuine refugees have been either prevented from travelling or wrongfully returned by airlines anxious to avoid fines. Indeed, this is not surprising as there is no way in which a genuine asylum seeker can be distinguished from one who is not genuine. There is no way in which one can know before the matter is tested. It is not surprising that the effect of the Act has been to reduce the number of those who wish to seek asylum but are not able to reach this country.
§ I wish to submit to the Committee that this is, in effect, a restriction on entry which obstructs the flight to safety of individuals who are in need of international protection and it therefore circumvents the object and purpose of the 1951 convention on refugees. Indeed, Amnesty International makes that claim. Therefore, while this country has no obligation to encourage or facilitate the flight of refugees to this country, it does have an obligation not to obstruct access to its asylum procedures by those in need of protection.
The intention of this amendment is to exempt children under the age of 18 from the provisions of the Immigration (Carriers' Liability) Act. Children are a particular category who are, as we have argued previously, especially vulnerable and are in need of special care. The United Nations Convention on the Rights of the Child makes it clear that children—defined as people under the age of 18—are entitled to special care and assistance. Article 22 of the convention states:
Unaccompanied refugee children should receive appropriate protection and humanitarian assistance in the enjoyment of the rights of the convention and other international human rights instruments to which the said states are parties".
The argument is that to require children to fulfil visa requirements which are impossible—indeed, in some cases may even be dangerous if they have to seek visas from authorities from which they are under threat—cannot be said to be giving them the special care and assistance to which they are entitled. They are, in fact, prevented from travelling, disembarking or making an asylum claim. That is at odds with their legitimate entitlement to special care and assistance. The fact that children are often travelling on their own in these circumstances, or at any rate sometimes on their own,
is itself indicative of the very serious situation that they are in. Parents and families do not normally put their children on aeroplanes unless there are very compelling reasons for them to do so.
§ There have been cases in which children have been put on aeroplanes unaccompanied and have been wrongfully returned by airlines before being able to claim asylum. That is no doubt because those airlines are afraid of incurring fines under the Immigration (Carriers' Liability) Act. So the argument is that if children are to be given the right to seek the asylum that is surely their due, they should be exempted from the provisions of this clause. That is why the amendment has been tabled. I beg to move.
§ Lord McIntosh of Haringey
My name is attached to this amendment and I am very pleased to support the words of the right reverend Prelate. This is a specific case of an extraordinary attitude towards people under the age of 18 which permeates the whole Bill. In much of the rest of our legislation, particularly legislation enacted in recent years, there has been a growing and a welcome recognition that children need to be protected and need to be treated separately in the eyes of the law. The age at which children have acquired certain rights and duties is still a matter of controversy, but the fact that children should be treated differently is, I believe, widely accepted in our law. It is all the more extraordinary that in this legislation a basic advance in our understanding of human rights should have been so widely ignored.
As I have said, this is a particular case which has a great deal of resonance for those who have observed immigration to this country over the years and who know about the valuable role which immigrants and asylum seekers as refugees have played in our society over the years. Imagine what would have happened if Rabbi Schonfeld, who was able to facilitate the escape of so many children and young people from Nazi Germany before the war, had been subject to the Act to which we refer. Many of those children have played a very conspicuous and valuable role in our society. They would simply have been sent back to their place of origin by sea in those days rather than by air. They would have been in no position to make or even to get access to an application for asylum under the provisions of this Act. If that would have been true in the 1930s it is no less true now.
There must be special protection. There must not be the possibility that those who, because they are not adults, are unable to speak up for themselves effectively may be denied access to the asylum rights which are available to adults. That is what I fear will happen if the Immigration (Carriers' Liability) Act is extended to young people under the provisions of this clause.
§ Lord Bonham-Carter
I wish briefly to support what the noble Lord, Lord McIntosh, and the right reverend Prelate have said. It is truly astonishing that there should be put before this House a Bill which makes no distinction between adults and children. Does the Committee really believe that children should be treated as though they are adults? Does it really believe that terrified children, shoved on 1080 aeroplanes (on which they have probably never travelled before) by terrified parents, going to a country where the language spoken is totally alien to theirs—a country which they may have never heard of, with different customs and different culture—should be treated in exactly the same way as if they were adults?
Is that honestly the intention of the Government? Have they considered the implications of that intention? Do they honestly believe that it is humane? Do they believe that it is in accordance with our obligations under the various conventions which we have signed? I look at Members of the Committee opposite and wonder what is going through their heads when they support legislation that contains this yawning and uncivilised omission.
§ Lord Tordoff
This is not just a sentimental intervention. Children are in a particular position. Very often they find it difficult to obtain documents which may very well have been in the possession of their parents. They may very well have been thrown out of houses and their possessions destroyed. There is no chance that the children can have adequate documents when they come here and yet the law expects that they shall have the same type of documents as adults. There is no doubt that children are particularly penalised under this kind of legislation. I am very glad that the right reverend Prelate has moved this amendment.
§ The Earl of Onslow
This is not the right place to conduct the argument about whether children should be included in this Act. There may or may not be an argument for saying that children should be excluded altogether from the Asylum and Immigration Appeals Bill, but surely it should not be included under the visas for transit section. It seems a rather odd place to put it. If there is an argument for excluding children from the legislation, it should be done under a separate clause, in a separate part of the Bill and should apply to children throughout the Bill, not just under Clause 12 and the Immigration (Carriers' Liability) Act 1987.
§ Lord McIntosh of Haringey
The noble Earl is in understandable error. I made the same mistake when I first read the amendment. The Act referred to in the amendment is not this Act—not what will be the Asylum and Immigration Appeals Act—but the Immigration (Carriers' Liability) Act 1987.
§ The Earl of Onslow
Then it should be in a new and separate clause, not tucked in here. Either way, it must be wrong.
§ Lord Renton
We should bear in mind that the only children referred to and affected by this clause are those who are transit passengers on the way to another country, who just stop here on the way. Presumably, arrangements will have been made before they left their country of origin (however unsettled a state that 1081 country may be in) for them to be received in the third country. We are dealing only with transit passengers here.
§ Lord McIntosh of Haringey
The noble Lord, Lord Renton, criticised me earlier in the Committee stage of this Bill for proposing things which went outside the Long Title of the Bill. I remind him that in relation to this matter the Long Title states that the Bill is intended only,to extend the provision of the Immigration (Carriers' Liability) Act 1987 to transit passengers".In other words, a wider provision for children would have been outside the Long Title, much as we would have wished to include such a provision.
§ Lord Renton
Referring to me the other night, just after I had spoken, the noble Lord, Lord McIntosh, said:The noble Lord is bad for my health".—[Official Report, 11/2/93; col. 848.]Perhaps I may advise him that I fully understand; I am very sympathetic; and I shall try to be therapeutic tonight.
At the foot of page 8, the Bill proposes an amendment to the Immigration (Carriers' Liability) Act. It states:The Secretary of State may by order require persons of any description specified in the order who on arrival in the United Kingdom pass through to another country or territory without entering the United Kingdom to hold a visa for that purpose".The matter is further clarified in subsection (2), which states:An order under this section—(a) may specify a description of persons by reference to"—and the provisions then mention various things.
Surely, the amendment refers only to those young people who are passing through this country, who are landing here temporarily or even conceivably not landing here at all.
§ Lord Tordoff
Does the noble Lord not understand that it is no good relying on people being prepared to receive the children because if, for instance, they have to move from Heathrow to Gatwick, they will not be allowed to go to Gatwick because they will fall foul of this legislation and be sent back to their country of origin. They will never arrive in the third country where they are due to be received.
§ Lord Renton
It would be interesting to see upon what assumption my noble friend Lord Ferrers claims that this clause is based. On reading it, it is perfectly clear that we are dealing with transit passengers.
§ Earl Russell
I cannot help wondering whether the noble Lord, Lord Renton, has perhaps not improved his own case in pointing out that these will be passengers en route to another country. Let us suppose that a passenger is en route from Bogotá to Frankfurt. Because he will pass through Heathrow (perhaps in transit to Gatwick), he will be required to hold a visa. I do not see why that is necessary. It will interfere with the very excellent traditions of many airlines regarding caring for children. It will deter them from taking children on board, and it will 1082 interfere with the internal affairs of the country to which the children are going. It seems a quite unwarrantable intrusion into other people's business.
§ Lord Renton
It would be better if we all waited to hear what my noble friend the Minister has to say.
§ Lord Pitt of Hampstead
When people are in difficulties, they often decide to send their children away. Someone may leave Trinidad to go to New York via Britain because that provides the quickest getaway. That person would arrive at Gatwick. Under the Bill, children would not be allowed to go from Gatwick to Heathrow; but it is from Heathrow that one travels to New York. It is as simple as that.
§ Lord Hylton
The noble Lord, Lord Renton, is usually a good guide on matters of this type; but it seems to me that on this occasion Homer may be nodding. From looking at the text of Amendment No. 58, I suggest that it applies to the whole of the Immigration (Carriers' Liability) Act 1987.
§ Lord Renton
But the Act referred to is not the Bill. The Act referred to is the Immigration (Carriers' Liability) Act 1987.
The noble Lord, Lord Tordoff, complains. He takes one view, and my noble friend takes another. I was saying that I thought that my noble friend was right when he said that this part of the Bill involves transit visas. The amendment deletes from the provision of the Immigration (Carriers' Liability) Act 1987 people under the age of 18. That widens the whole thing considerably. My noble friend was right to draw attention to that fact.
The right reverend Prelate has drawn attention to the problems of children and the difficulties associated with them. I am sure we all have sympathy with that. But when the 1987 Act was passed, similar amendments were put down, debated and rejected by Parliament. We said then—the same applies today—that statutory exemptions to liability would undermine the whole aim of the Act. Its whole aim is to prevent people from travelling here without the proper documents. It would encourage carriers to make judgments which they could not reasonably make.
The noble Lord, Lord Bonham-Carter, said that it would be extraordinary if there were a difference between adults and children. I do not believe that is extraordinary. All we are saying is if people are going to travel around the world to different countries, they must have the appropriate documents. We cannot have people merely floating around from one country to another saying, "I am a child and therefore I do not need the appropriate document". Of course one has to have the appropriate documents.
The amendment, which excludes children from the requirements, would open up an avenue for abuse which would invite fraudulent claims as to the age and circumstances which would be put to the airlines to 1083 secure carriage to the United Kingdom. If one were to exclude children under the age of 18, it is not beyond the Committee's imagination to consider that people aged 19 or 20 might say, "Oh well, I am only 15, and therefore I do not have to have a document".
The amendment would discourage parents or guardians from obtaining the necessary visas and would encourage carriers to ignore the checking of documents of all those under 18. The present carrier liability arrangements work well, partly because there are no statutory exemptions to confuse the carriers' check-in staff. Even with exemption from liability to a charge under the Immigration (Carriers' Liability) Act 1987, it is unlikely the carriers would wish to remove from his own country an unaccompanied child with inadequate documents.
The right reverend prelate and the noble Lord, Lord McIntosh, were worried about asylum seekers. I do not believe that in practice the amendment would afford any extra protection to genuine refugee children. If a child is genuinely at risk of persecution, it is not obvious that the most appropriate course for him to take is to make his way unaccompanied to an international airport, buy a ticket and then take an aeroplane to the United Kingdom. If a child arrives in the United Kingdom, is a genuine asylum applicant but has no visa he will, nevertheless, be considered a proper, genuine asylum applicant.
It is reasonable to keep the matter in perspective. In 1992 some 185 children claimed asylum at the ports. Millions of children came to this country in other circumstances. If children need a visa their parents or guardians should obtain one and the carriers should not transport them without a visa.
I return to the point that asylum applications and asylum applicants are in a way separate issues. In order to travel around the world one must have the appropriate documents, whether one is an adult or a child. That is not unreasonable. If, on the other hand, one is fleeing from persecution, whether a child or an adult, one's application will be considered properly.
§ 10.15 p.m.
§ Lord McIntosh of Haringey
The Minister said that there might be a number of people aged 19 or 20 swanning or wandering around the world—I cannot remember the exact phrase.
§ Lord McIntosh of Haringey
I am grateful. He said that there might be a number of people floating around the world claiming to be 15 or 16. I must remind him that only a few moments ago the noble Viscount, Lord Astor, told the Committee that the question of age on a passport was a matter of fact, it could not be disputed and it need not be the subject of appeal. He told the Committee that if a person's passport stated that he was 16 or whatever, that should be taken as gospel truth. There appears to be a conflict between the two Ministers on the Government Front Bench.
§ Lord Pitt of Hampstead
The Government have not addressed the point that I raised. It is serious. We are 1084 talking about children who may have been sent abroad by their parents because their parents recognise that there are problems in their home country and they want their children to be safe. It may be that the first available transport is to this country. As the law stands, the carrier should not take them because they will not have a visa to enter this country, even though they are not staying here but travelling on to another country. The amendment proposes to exempt children from such a provision in order that the carrier will be able to take the child. The carrier will feel safe that it can take the child to Gatwick and that the child can then go from Heathrow to New York, which is where the parents wanted to send him. As the Bill stands the carriers will not be able to do that. If they do so, they will be taking a chance that they may be fined. The Minister has not addressed the point that I made.
I will try to persuade the noble Lord, Lord Pitt. He said that if parents are worried about what is happening in their country and want to send their children away to another country and it so happens that the United Kingdom is the country to which they would like to send them—
Very well, passing through. The situation which the noble Lord cited was one in which parents are concerned that the conditions in their country are unfavourable—
§ Lord Pitt of Hampstead
Let us say that there is a riot or a coup, and I shall use Trinidad as an example. If there is a coup and you are worried about what will happen to you and your children, you say, "I will take whatever happens but I want to save my children". I use New York as an example because most of our citizens have family in New York. In that case the parents will send their children to New York. However, perhaps the only flight available at the time is a British Airways flight to London—
If the noble Lord wishes to go to New York, he does not want to go to London from Trinidad.
§ Lord Pitt of Hampstead
If there is a danger, then you move in the first direction. That is obvious.
I am trying to help the noble Lord, but I am not getting on very well. Half the reason is of course that the noble Lord will not restrain himself in his seat long enough to hear the answer. If you are going to go around the world, there is no point in—the noble Lord, Lord Pitt, makes disparaging gesticulations.
The noble Lord says that it is rubbish. I am trying to explain that if you are in an uncomfortable position—and he has cited Trinidad—you cannot just go along and get the nearest aeroplane and fly to wherever it may take you without 1085 the appropriate documents. If you did that, the whole system in any country would come to an end. That is different from saying that you are fleeing for asylum.
The noble Lord's example was that he was trying to take a prudent precaution, and the child in that case was not one seeking asylum. There have been occasions when people have come to another country via the United Kingdom and not had transit visas; they have gone, as it were, airside, abused that position and come into the country. Therefore, it is necessary to have the proper controls. There are a few countries where the controls have to be rigid and other countries where they have to be less rigid.
If there are any countries where the transit visa requirements are going to be made, then your Lordships will have the opportunity of discussing this when the resolution is brought before your Lordships for negative resolution. When people move around the world it is necessary to have the appropriate documents, and I do not see the example of the noble Lord, Lord Pitt, as a valid reason why all documents should be dispensed with.
§ The Lord Bishop of Ripon
I have the highest regard for the noble Earl, Lord Ferrers, and I would not in any way wish to undermine that. But with respect I wonder whether he has grasped what we believe to be the chief objection, which is precisely that enunciated by the noble Lord, Lord Pitt. The effect of the Immigration (Carriers' Liability) Act has been to prevent those who otherwise might have been able to reach a country and claim asylum from doing so. The intention of this amendment is that children under 18 should be excluded from that.
My understanding is the same as that of the noble Lord, Lord Renton, that this exempts those under 18 from the provisions of the Immigration (Carriers' Liability) Act. I think that that is the intention. I accept that it is a wide amendment, and certainly in view of the lateness of the hour I am not disposed to press it. I believe that there is a genuine concern here that the effect of this is to prevent those who have a legitimate claim to asylum from seeking that asylum in this country.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
Lord Mountevans moved Amendment No. 60:
Page 9, line 19 at end insert:
("(4) No order shall be made by the Secretary of State under this section unless he is satisfied that adequate consular facilities exist for the issue of United Kingdom visas to the relevant nationals affected by the proposed order.
(5) The expression "adequate consular facilities" in subsection (4) above shall include the provision of appropriate consular staff and of offices sited in appropriate locations to enable such visas to be issued expeditiously and in a timely manner."").
§ The noble Lord said: I have spoken to this amendment, and I should like to move it in order to hear my noble friend's reply. I beg to move.
My noble friend spoke to this amendment when he moved Amendment No. 56. The existing network of over 150 visa-issuing posts worldwide should be able to cope adequately with any increase in demand for visas resulting from the imposition of a transit visa requirement on any given nationality. The Government's record on providing the staff necessary to meet new or increased demand for visas is very good. In the past two years, additional staff have been sent to many posts. Accra, Lagos, Manila, Bangkok, Oman and others have all received extra people. We are committed to offering a fast and efficient visa service. That commitment remains and transit visa applicants should be treated no differently.
It may be necessary at some stage to impose a transit visa requirement on citizens of a country or territory with whom we have no diplomatic relations, with whom we are at war or where civil strife prevents us from maintaining a British presence. Under the Immigration Act 1971 a visa requirement can be imposed upon such persons. It would be extremely odd if there were a visa regime but we could not impose a transit visa requirement if necessary. Such nationals may be temporarily or permanently resident in a country where British interests did not justify the costs of establishing a post or where there is little or no demand for United Kingdom visas; in other words, if that country's citizens did not require visas.
In new states where there has never been a British mission, decisions on whether an embassy or consulate should open and, if so, whether a full or partial visa service should be provided are determined by a number of factors, not least the cost to the British taxpayer. Demand for visas will also be an important consideration but the proximity of other posts in the area will also be a major factor.
§ Lord Hylton
I am sure that the Government do their best to establish visa offices where they are thought to be required or where they are clearly shown to be required. However, a perfect example of the lack of facilities is the former Yugoslavia. There was no consular office in Bosnia or Croatia. People fleeing from the desperate fighting, ethnic cleansing, and so on, were expected to travel to Slovenia which was several hundred miles away from the scene of the action. That imposed an almost impossible requirement on those people.
1088 Since that time some consular officials have been placed in Zagreb, which has improved matters slightly, but it is still necessary to cross an international frontier.
§ Baroness Gardner of Parkes
Is there any provision to grant transit visas at the airport? Unlike most Members of the Committee, I spend much time obtaining visas as I am only the holder of an Australian passport. I have often been in a country where I have been told that the visa with which I had been issued was valid for only one entry and that I happened to have passed through that country on more than one occasion in transit. In those countries, a transit visa is issued then and there. Where there are no consular facilities whatever, and we are only talking about a transit visa, would it be possible to provide facilities to grant transit visas at the airport?
§ Lord Tordoff
The point is not what happens when you arrive at the point of transit but what happens before you board the plane. If the airline believes that it will have a liability of £2,000 as well as having to return you to the point of origin, it may not agree to take you in the first place if it feels that your documents are not valid.
The noble Lord, Lord Hylton, referred to Yugoslavia. That is a particularly difficult and unusual situation. At present the opening of a mission in Bosnia is not practicable. However, we have opened a visa section in Zagreb and have sent in additional staff to meet the demand. Of course, I accept that there are difficulties.
My noble friend Lady Gardner of Parkes asked whether facilities are available to grant transit visas at airports. They are not. However, we must remember that transit visas will be used only for certain countries where it is considered that that is necessary. It does not apply to all countries.
§ Lord Mountevans
I am grateful to my noble friend for that extremely full answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 10.30 p.m.
§ Lord Mountevans moved Amendment No. 61:
Page 9, line 19 at end insert:
("(4A) No liability shall be incurred in respect of a person of a description specified in any order made under this section if it is shown by the owner or agents of the relevant ship or aircraft that reasonable and diligent steps were taken to establish on embarkation that the person held a visa.
(4B) For the purpose of establishing whether the owners or agents took reasonable and diligent steps under subsection (4A) above regard shall be had to—
(4C) In applying the provisions of subsection (4A) above to this section the owners or agents shall be deemed to be less skilled than an immigration officer when determining whether the falsity of any document was reasonably apparent."").
§ The noble Lord said: On earlier occasions I have mentioned the growing number of steps being taken 1089 by both British and foreign carriers to seek, by training and manpower, to cope with the problems of carriers' liabilities. No matter how diligent they are, carriers can be left with the problem of a life or death decision relating to an asylum seeker.
§ Less tragic but perhaps equally demanding is the problem of trying to read a potential passenger's mind as to whether he or she intends to "jump ship" by applying for entry while notionally in transit. Thirdly, there is the problem of those asylum seekers who have been advised to destroy their documents before arriving at a UK gateway.
§ A trained immigration officer can address these problems at his leisure and has the facilities to do so. But a check-in agent, without the facilities, cannot. We are told that he or she is not the first line of immigration control. But the instances which I have mentioned lead me to reject that view. We are now faced with an additional dimension—that of a transit passenger of some as yet unspecified nationality. The guidelines are for guidance. I seek to turn that guidance into legislation.
§ Turning briefly to Amendment No. 61A, I address the problem that the 1987 Act has to be applied rigidly. Carrier staff are forced to take decisions on suspicion. Those decisions, I feel, can only be taken by immigration officers. Their decisions are appealable; the carrier staff's decisions are not. An absolute offence is being created in their terms at the point of boarding. The amendment seeks to provide a logical and reasonable defence for the carrier's staff.
§ Amendment No. 63 is a probing amendment. I understand that penalties are generally relieved if the passenger is in due course granted refugee status. But many passengers are only granted indefinite leave to stay and in those cases the penalties are not lifted. I simply ask my noble friend the Minister to explain why there is this discrimination. I beg to move.
§ Baroness Gardner of Parkes
I support the amendment moved by the noble Lord, Lord Mountevans. I do not intend to speak for long because it is late; but I would ask the Minister whether he is aware that at least a quarter of the passengers passing through Heathrow are in transit. That is an enormous number. Also, is he aware that it is a great disadvantage to someone if they do not have the documentation which is required just simply to pass through. They would therefore make a point of going through some other airport. That would definitely be disadvantageous for us when we are supposedly encouraging as many people as possible to use our airports and our airlines.
My noble friend's amendment, Amendment No. 61, provides that a charge should not be levied if the carrier can show that it took reasonable and diligent steps to establish on embarkation that a person held a visa. My noble friend has argued that carriers who do their best to check passengers' documentation should not have charges enforced against them. I am glad to be able to tell the Committee that the new guidance to carriers on charging procedures, to which I referred when the Bill 1090 was before your Lordships on a previous occasion, has now been completed and issued. It includes some clear and useful guidance on the circumstances in which charges may be waived.
Section 1(2) of the Immigration (Carriers' Liability) Act 1987 provides that no liability is incurred where the carrier can show that the passenger produced proper documents at the time he boarded the ship or aircraft for the United Kingdom. The problem arises when the passenger arrives nevertheless without a document. It may be that he destroyed it or handed it to someone else in the course of his journey. This increases the difficulty of removing someone. It may be that the document was forged at the outset. It is often hard to be sure in these cases. Documents can also be given to carriers and recycled.
In recognition of the problem the immigration service has developed a system called "approved gate checks". Airlines are able to apply for this status at named airports from which they operate to the United Kingdom. The airlines need to show that they operate an effective system of document checking and that there are adequate security procedures in place to prevent passengers circumventing those checks. An immigration service representative will inspect the arrangements. As a consequence, the carrier will not normally be charged for any passenger who arrives from that airport without documents on the assumption that he must have presented convincing documents at the point of embarkation. Many airlines have expressed interest in those arrangements and approved gate checks status has been given in about a dozen cases. I believe that that arrangement goes a long way to meet my noble friend's point while retaining an effective barrier to people who would seek to travel without proper documents.
Amendment No. 61 also refers to misleading or confusing stamps in passports. Again, I can reassure the Committee on that point. The new guidance to carriers makes it clear that charges will normally be waived in cases where passport endorsements are unclear or confusing and in certain other circumstances where it may not be clear whether or not a visa is valid.
The 1987 Act also provides that a document shall be regarded as being what it purports to be unless its falsity is reasonably apparent. Amendment No. 61 seeks to make it clear that carrier employees should not be expected to be as proficient as immigration officers in detecting forgeries. I entirely agree. In the new guidance to carriers the matter is dealt with in this way:A forgery would be regarded as reasonably apparent if it were of a standard which a trained representative of a carrying company, examining it carefully but briefly and without the use of technological aids could reasonably be expected to detect".A "trained representative" would be expected to have a basic knowledge of how to identify fraudulent documents, but not to be expert nor to have the resources for highly detailed examination.
The immigration service provides carriers with a booklet on basic forgery detection and also includes the subject in the training which it provides to carriers' employees. That is intended to enable carriers to spot 1091 obvious cases of abuse. It provides some useful tips as to what to look out for. It is certainly not intended to turn carriers' staff into immigration officers.
The Committee will be aware that amendments similar to Amendments Nos. 61A and 63 were debated during the passage of the 1987 Act. We said then, and the situation is the same now, that statutory exemptions to liability would undermine the whole purpose of the Act, which is to prevent people travelling here without the proper documents. It would encourage carriers to make judgments which they could not reasonably make.
In keeping with undertakings which were given by Ministers when the Act was introduced, no charge is enforced on carriers in relation to any passenger who is subsequently accepted as a refugee. Where a charge has been levied in such a case there are administrative arrangements to refund or waive the charge.
The whole point of the arrangements set out in Clause 12 is to safeguard the immigration control from misuse of the current transit without visa concessions by passengers who assure the airline that they intend only to transit the UK whereas their true intention is to seek entry. Carriers have often made representations to us about the difficulty for them of making judgments as to the genuineness of passengers' intentions to transit the United Kingdom without seeking entry and of having to decide whether or not to carry the passenger without the required visa. Clause 12, and the order to be made under it, will clarify the situation for carriers. There will be no element of subjective judgment for them. Against that simple and reasonable objective it is an unnecessary contradiction to make complex provision in the event that transit passengers might possibly be granted asylum or indefinite leave to remain.
§ Lord Mountevans
I am again grateful for a comprehensive reply, which I shall study with interest. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61A not moved.]
Lord Mountevans moved Amendment No. 62:
page 9, line 19, at end insert:
("(4D) Where the owner or agent of a ship or aircraft has incurred a liability under section 1(1) above in respect of a person of a description specified in an order made under subsection (1) above he may appeal against that liability to a special adjudicator appointed for the purposes of Part II of the Immigration Act 1971 ("the 1971 Act").
(4F) The Lord Chancellor shall for the purposes of subsection (4D) above
§ The noble Lord said: Amendment No. 62 seeks to amend the appeals procedure in respect of penalties incurred under carriers' liability by establishing an independent adjudicator.
§ Hitherto there have been three tiers of adjudication procedure for appeals. The first was at the port of entry. There was a second and subsequent level of appeal to Lunar House. Thirdly, there was a right to appeal to a higher level at Lunar House. The third 1092 option has recently been removed. The new structure would be acceptable if it did not, at both levels, involve immigration officers as the arbiters. Of course all personnel involved are fair and reasonable in their interpretation, but it seems to me that, being human, it is conceivable that they are reluctant to overturn decisions taken by colleagues at the lower level. Their position as adjudicators is almost as unenviable as that of the check-in staff. They are bound to be faced with difficulties. Those carriers who care are sympathetic to the immigration staff but unhappy about the judge and jury element built into the appeals procedure as it now stands.
§ Collectively, the carriers are uncertain whether an appeal to the courts would be worth while. Hence they pay for an independent adjudicator who is seen to be at length from the Home Office Immigration Division, and indeed from the Home Office itself. An independent adjudicator is the objective of Amendment No. 62. Such an adjudicator could be perceived to be more independent if he were operating within the Lord Chancellor's remit. I beg to move.
The amendment introduces into the immigration appeals system an avenue of appeal for carriers against their notice of liability. There does already exist, I suggest, a perfectly adequate avenue of redress for the carriers. First, a carrier can make representations to the local immigration service against the notification of liability to a charge under the 1987 Act where the carrier is being charged for having taken a person without the correct documents. If the carrier is dissatisfied when he appeals, he can then apply to the immigration service headquarters. It is not without note that £4 million in liabilities have been waived since the Act was passed.
The immigration service has also recently issued to carriers a very comprehensive guide to the carriers' liability legislation. It includes in it advice on the way in which notices of liability can be challenged. It would not be appropriate to introduce an appeal system in this instance. The Home Office has no power to seize money. If the carrier refused to pay a charge, the Home Office would then seek to recover it through the courts in the normal way that a civil litigant does. They would then have to examine whether a charge was reasonable. That would be the court's job. That recourse could not be bettered as a means of obtaining an independent and totally impartial view.
§ Lord Mountevans
I am grateful yet again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 63 not moved.]
On Question, Whether Clause 12 shall stand part of the Bill?
§ Lord Mountevans
The Immigration (Carriers' Liability) Act 1987 set out to address a one-off situation—Sri Lankan Tamil refugees. Since then, like Topsy, "It just growed". Yet figures referred to at Second Reading in respect of the penalties imposed with regard to a number of asylum seekers (about £45 1093 million) and in respect of the penalties as yet uncollected (about £24 million) demonstrate that the Act is not working.
It is difficult to find a carrier which supports the Act although many make a fair fist of trying to make it work, despite the burdens that it imposes on carriers' staff, to which I have referred when speaking on earlier amendments. Furthermore, there is a suspicion among some major carriers that treatment is unequal. When the Home Office wished to tighten up on the collection of penalties last year it chose to fire a warning shot at Lufthansa and Swissair, "Pay up or else". There is no evidence that such warnings have been given to a number of other carriers, in particular those from the third world, perhaps because there is a diplomatic dimension involved. Yet there is evidence that third world carriers are the least enthusiastic about complying with the Act or in terms of paying the penalties due.
One suspects that the Department of Transport has some sympathy with the enforcement argument put forward by the carriers. That department must be concerned that the Act is damaging to British carriers and that if the Act is widened, as proposed in Clause 12, there will be damage also to our airports industry. There is potential damage to our tourism industry which I detailed at Second Reading. There is potential damage to our standing in the wider world.
Lastly, as I still believe in the context of Amendment No. 56, we are giving the Secretary of State very wide and unspecified powers. For those reasons, I have to say that I would find it difficult to support the Motion that Clause 12 stand part of the Bill.
§ 10.45 p.m.
I am sorry that my noble friend Lord Mountevans is so concerned about Clause 12. At present, through an administrative concession, the vast majority of visa nationals are not required to obtain a transit visa if they do not intend to enter the United Kingdom but are simply passing through our country on the way to their final destination. Transit visas are required in certain circumstances for six countries and in all circumstances for only two countries. Clause 12 will put these administrative arrangements on a statutory footing. In particular, the list of persons required to hold transit visas will in future be made by a negative resolution instrument enabling any changes to be debated by both Houses of Parliament.
Genuine transit passengers who remain in the airside transit lounge and depart with their onward flights present no problems to our immigration control. But some passengers have deliberately misused this facility and sought entry to the United Kingdom without the mandatory visa. To safeguard the immigration control from abuse of this kind, it is necessary to impose an airside transit visa requirement on certain nationalities.
A transit visa requirement on certain visa nationals whose stated intention is to pass through the United Kingdom without seeking entry has no greater effect 1094 on asylum seekers than the visa requirement which already exists for passengers seeking entry to the United Kingdom. It is aimed at those who are not genuine airside transit passengers and who would seek to circumvent the visa arrangements. There is already abuse by certain airside transit passengers and we would be failing in our duty if we did not take active steps to curb it.
This clause does not indicate any change in policy by the Government. In practice, the transit visa regime already exists. There are two countries which are subject to airside country visa requirements and they and six others are subject to a transit visa requirement if the person intends to pass through immigration control before catching the ongoing flight.
Under the clause, any changes to those requirements will have to come before your Lordships; they will be laid before Parliament and will be subject to discussion and the negative resolution procedure. It is now our intention to impose transit visa requirements very sparingly indeed. I think therefore that it is quite appropriate that Clause 12 should remain in the Bill.
§ The Earl of Onslow
I find this rather hard to understand; perhaps my noble friend can explain a case to me. If a person going from A to B via London Airport arrives but does not go to the immigration authorities and stays either on the aeroplane or on the airside, how on earth will anyone know whether he has a visa?
When a person stays on the airside of an airport, it is not uncommon for him to be checked and asked whether he is going into transit or going through. If that person does not have the appropriate visa, he will not be able to come in.
§ Lord Brougham and Vaux
I wonder whether my noble friend can answer this question. If someone flies to the southern tip of Italy and then to Rome and boards a BA plane in transit, how can BA officials or the UK carrier be sure that he may legally come into the United Kingdom?
§ Lord Trefgarne
I am bound to say that I share some of the reservations that have been expressed about the clause. My noble friend referred to past abuse of the transit arrangements. I cannot quite understand how that could take place. Is it the case, as my noble friend suggested, that those seeking to remain in transit at London Airport, for example, sought to leave the transit facilities and enter the United Kingdom without proper authority? Have there been many such cases? Is it a real mischief that we are trying to address, or is it only in the minds of the officials?
§ Lord Brabazon of Tara
I too should like to support the argument of my noble friend Lord Mountevans that the clause should not stand part of the Bill. I think it is generally agreed that the Immigration (Carriers' Liability) Act 1987 has not worked very well. We have heard many arguments on that point. The noble Lord, Lord McIntosh, points his finger at me. I must admit that I was a Member of the Government when that 1095 Act was passed. But one is entitled to note how legislation works over a period of time and to make observations, as I am doing this evening.
That the legislation has been seen not to work very well I believe can be proved by the fact that it was necessary last year to double the fine. Had it been working well, it would not have been necessary to double the fine because presumably the number of people coming in would have gone down rather than up.
I believe that those arguments are reasonable and that that Act has not worked particularly well. Therefore, I am somewhat horrified to see that this Bill proposes to extend the Immigration (Carriers' Liability) Act to transit passengers. Transit passengers represent a very large and advantageous income to British airlines—not necessarily only to British Airways but British airlines in general—at Heathrow and other British airports.
I should like to ask my noble friend a number of questions about how he thinks the visa requirement might operate. I had experience when I was a Minister in the Foreign Office of visiting Mongolia. Not many people have been to Mongolia. I would recommend that anybody who goes there should check very carefully beforehand how many visas he requires before he goes through Russia. I had intended to transit through Moscow, and on my way back I planned to visit Moscow and spend a day and a half there visiting the embassy and various offices and facilities in my role as the person responsible for administration at the Foreign Office.
It was automatically assumed that I would not require a Russian visa on my way out to Mongolia because I was only in transit. Imagine my horror, therefore, on returning from Mongolia—the first stop in Russia is at a place called Irkutsk, in Siberia, which is quite a long way from anywhere—to discover that my visa had been used up on my way out and that therefore I was attempting to enter Russia without a visa. However, I think my horror was slightly less than that of my private secretary, who felt that he was about to lose a Minister somewhere in Siberia.
The point I am trying to make is that, if the British Foreign Office, with all its facilities, was unable to find out that I needed two visas for that particular journey, it seems unreasonable to expect the many punters who propose to travel in transit only through Heathrow to find out that they require one visa or even two visas in transit.
That brings me to one particular question that I should like to ask my noble friend. Suppose, for the sake of argument, that someone is travelling from Kathmandu, in Nepal, which I believe is a country whose nationals at present require visas to enter this country. He is going through Frankfurt, then through Heathrow and on to New York. I suppose it is a fair bet that he might go back the same way. Will that person require one visa at £20, or whatever it is, or two visas at £20 each—that is, a total of £40? If so, is that not a slight disincentive for him to travel through Heathrow at all? Might he not go through Frankfurt 1096 and directly on to New York or wherever? Is it not going to cost the British airlines and airports system rather a lot of money?
Suppose that person does not even start from Kathmandu but from Italy, say, and wants to go through London in transit. How is he to know what is required when he is going through in transit? How are we to advertise to those nationalities that require transit visas at Heathrow if they do not start from their country of origin but start from somewhere completely different? How are we to advertise to them that, though they have been used in the past to merely travelling through Heathrow in transit without a visa, they will now suddenly require one? I believe that this clause compounds what was a bad law in the first place. It is just giving added ammunition to those who think that it is a bad law now.
§ Lord Tordoff
That was a courageous intervention from the noble Lord, Lord Brabazon, and it was generous of him to join in the debate. Couple that with the fact that we may be talking about refugees and not just members of Her Majesty's foreign service or junior Ministers, and we can see how the issue may be compounded. That is what we have been discussing all night.
Perhaps I can ask a question. What happens if a flight on which somebody is in transit, instead of going to Heathrow is diverted because of fog to Manchester, and people are then moved by road to, say, Liverpool? The truth is that they will not be allowed to travel by road to Liverpool; they will be put on the next plane, sent back to where they came from and the airline will be charged £2,000 for the privilege.
There is a certain Alice in Wonderland aspect, certainly to the original Bill; but to extend it, as the noble Lord, Lord Brabazon, says, seems to be compounding the felony.
§ Earl Russell
I listened with great interest to the noble Lord, Lord Brabazon of Tara. I am much relieved that he is not still in Irkutsk.
The point he made regarding disincentives is an important one. If it is a disincentive to the passenger, it may equally be a disincentive to the airline. When one looks at airline routes across the Atlantic, it is like an axle running between London and New York with the spokes radiating out from those two clearing points. It need not necessarily be London; it could equally well be Schipol or Paris, or both.
Airlines are big business. Airports are worth money. Our balance of payments, I believe, is not in such a good state that we can afford wilfully to throw away a large amount of income which this country is at present bringing in.
§ Lord King of Wartnaby
I shall not detain the Committee any longer. I am mildly relieved to note that Alice in Wonderland has at last been introduced into this discussion.
A great deal has been said constructively by Members of the Committee in regard to this problem, and I know that there are others waiting to speak. However, I should like to ask my noble friend a 1097 number of questions with the object of improving understanding between the Government and the airline industry.
I recently had the honour of being elevated to the position of President of British Airways.
§ Lord King of Wartnaby
I must therefore declare an interest. But I hope that I speak for the whole of the international transport industry—airlines, airports and shipping. The operation of the carriers' liability Act of 1987 continues to cause anxiety to the whole industry. Clause 12 of the Bill gives Ministers a power to require the nationals of specified countries to have transit visas if they pass, even briefly, through this country. It extends the penalties of the carriers' liability Act to transport operators who bring them here without the necessary documents.
My argument is largely a commercial one, as the Committee may discover. I have no quarrel with the purpose of the Bill. International migration poses extremely difficult problems for governments, and the unauthorised movement across national frontiers of large numbers of people is an increasingly serious problem in many parts of the world.
British Airways is proud of its record in reducing the number of illegal immigrants brought to this country by air, despite the increase in the numbers seeking to emigrate and the greater sophistication of the methods used to attempt illegal entry. We have achieved that because we want to do things well, not because we have been coerced by penalties.
The air transport industry contributes more than £20 billion a year to our balance of payments. I hope that this is a contribution which Ministers welcome, particularly in our present economic difficulties. I hope therefore that Ministers will listen to what the industry has to tell them and that when framing legislation they will want to find ways of doing so while damaging the industry as little as possible.
In a spirit of wanting to co-operate with my noble friend the noble Earl, I should like to put to him four questions. First, will he agree that the number of countries for which transit visas are required under the Bill should be kept to the minimum and that the orders imposing transit visas should be time limited so that the need for each can be subject to annual parliamentary scrutiny? The noble Earl will know as well as I that departments have the habit of piling one restriction on another, with each restriction in itself not too onerous. But the whole lot taken together prove sometimes a heavy burden. If Parliament is able to review each year the visa requirements imposed by the Home Office, that can only be healthy.
Secondly, will the Minister please think again about abolishing the concession under which the nationals of six countries—Iran, Libya, Lebanon, Somalia, Syria and Turkey—may transit Britain without a visa? This is an arrangement under which people who would need a visa to stay in this country are allowed to pass through without a visa provided that they stay airside and do not spend the night here. It is sometimes difficult not to do that. Removing that concession will 1098 cost British airlines and airports, and in particular British Airways, very dear. It will become very unattractive for travellers who are nationals of those countries to pass through Britain on the way from their homes to, say, the USA. In Turkey alone, we estimate that removing the concession will put three-quarters of a million pounds of our revenue a year at risk. Why should Turkish citizens bother to go to the trouble and expense of getting visas in order to transit London when they can make their journey via Paris without a visa requirement at all? I might add that Air France gets enough help from its own government without getting unsolicited help from ours.
Thirdly, can there be better co-operation between our Home Office and the Foreign and Commonwealth Office? To take Turkey once again, while the Home Office is tightening up the requirement for visas, the Foreign Office has closed all the consular visa offices except those in Istanbul. Does the Minister realise how large a country Turkey is and that it is 280 miles from Istanbul to Ankara, the capital?
My company has introduced a courier service to move these applications quickly. Even so, the process can take four or five days. Has the small saving to the Foreign Office in closing the consular section been weighed against the large costs to British industry and commerce? If they speak to one another, they may well have done so but I have no evidence of that.
Fourthly, will the Minister reform the way in which the Immigration (Carriers' Liability) Act is administered so as to help carriers who really try to carry out their duties effectively? We made great efforts at considerable expense and reduced the number of cases attracting penalties by almost 50 per cent. of the rate at which they were running. The Government rewarded us for our pains by doubling the amount of each individual fine from £1,000 to £2,000. So it is quite reasonable to suggest that perhaps if we reduce the figure by another 50 per cent. the fine will go up to £4,000.
I am bound to say that I found that action particularly unreasonable. The result is that, despite all our efforts, British Airways still pays over £2 million a year to the Treasury in the form of fines for passengers without proper documents. That is £2 million which we cannot spend on anything else; for example, employing more staff. The Canadian Government are introducing a new scheme in which airlines which perform well can have their fines discounted—up to 100 per cent. for the best performers. Will the Minister give us his assurance that he will study that system with a view to introducing it here?
If my noble friend will consider those points, it will be of great benefit to an industry which serves this country well and which contributes to our national wealth. If he cannot do so, I shall be unable to support the Question that this clause stand part of the Bill.
§ Lord Greenway
I have great sympathy with all Members of the Committee who have spoken so far on this Question. I believe that the noble Earl is in no doubt as to my feelings on the Immigration (Carriers' Liability) Act. What upsets me most about it is that 1099 while asylum and immigration are matters which affect us all, only a small portion of the country—that is to say, those who travel by air or sea—are the ones who are eventually paying for the increased number of immigration staff who are helping to look after the legislation. I say that because eventually it is they who will pay the increased fares which it will be necessary for the airlines and the shipping companies to raise in order to pay for some of these swingeing fines which they have been forced to face over the past three or four years.
In Clause 12 the Government are seeking to extend the 1987 Act to include carriers' liability in respect of certain transit passengers. That will place two extra potential financial burdens on the likes of British Airways; one in further possible fines, and the other in the possible loss of revenue because those transit passengers are choosing to do so elsewhere. For that and the reasons which other Members of the Committee have enumerated, I shall also be happy to see this clause not stand part of the Bill.
§ Baroness Gardner of Parkes
I too oppose this clause standing part of the Bill. I believe that it is unnecessarily onerous. Can the Minister clarify a statement which he made earlier? Did I understand him to say that even if one remains airside in the transit lounge, officials would still feel entitled to ask whether one had a visa? If that is so, it is quite extraordinary. If the Minister says that I am wrong in believing that he said that, will he explain whether there is a difference, which I will understand, if one has to go from Heathrow to Gatwick because then one will be passing through immigration in order to do so?
I ask the Minister to clarify the position of someone who does not leave the airport but remains in the transit lounge. Perhaps he could also deal with the matter that was raised by the noble Lord, Lord Tordoff, of what happens if one's plane is diverted to another airport and if, in order to leave again, one has to be taken to a different airport by road. I should be grateful if the Minister could cover those situations.
§ The Earl of Onslow
There is one further point. If we apply this to outsiders, it would be very irritating if those of us who may or may not want to go to Australia have to get a visa for Abu Dhabi and for Singapore when the plane refuels in those places even if we do not leave airside. It seems an unnecessary restriction for people who do not go through immigration, and a financial burden that should not be borne.
I know that the Immigration (Carriers' Liability) Act was not the most favourite Act among some of your Lordships, and it is not surprising that some continued objections should have been made this evening. I never cease to be amazed at your Lordships' fertility of imagination. A number of questions have been asked in this debate. The noble Lord, Lord Tordoff, asked, "What happens in a fog?" My noble friend Lord Brabazon of Tara took us from Mongolia, to Russia, to Kathmandu, and wondered 1100 what happens if one goes to Italy and comes back to London when one really wanted to go from Heathrow to New York. It has all been fairly complicated.
We need to get down to a few basic realities about this clause. I accept that it is not liked. If I may say so, it is not surprising that my noble friend Lord King, with the astonishing position that he holds and has held with a very famous airline, takes exception to it, but I appreciated very much the way in which he put his objections so gently.
The fact is that this clause allows transit visas for certain countries. That is the first thing. It applies only to six countries in certain circumstances: Iran, Lebanon, Libya, Somalia, Syria and Turkey. Where people come from those countries and, for example, arrive at Heathrow and depart from Gatwick, they will have to have a transit visa. People from only two other countries have to have such a visa if they are going to enter the UK and, say, remain airside in Heathrow. Those two countries are Iraq and Sri Lanka. Those provisions are not applied to be beastly, difficult or bureaucratic. It is simply either that national security or the need to check on asylum seekers requires it. These countries are considered carefully. We remove countries from that requirement as soon as possible and add them only when necessary. The first point to realise, therefore, is that everyone does not have to have these transit visas. The requirement applies to only six and to two countries rigidly.
My noble friend Lord King asked a number of questions, such as, "Would the number of countries in which transit visas are required be kept to a minimum?" I can assure him that they will be. He also asked whether the requirements will be time-limited and kept under review. Alterations to the list of countries for which we require transit visas takes place by the parliamentary negative resolution procedure. The number of those countries will be reduced as soon as possible. If they have to be increased, they will be. It would not be right to clutter up - if I can so describe it -the organisation by having the provisions time-limited and therefore referred to Parliament every six months. The correct thing to do is to remove these procedures as and when necessary.
My noble friend asked whether we would abolish the requirement to have transit visas for nationals of the six countries that I mentioned. I have already explained that it is necessary at the moment. I assure him that when the requirement can be relaxed, it will be. He asked whether there would be more co-operation between the Home Office and the Foreign and Commonwealth Office. There is all manner of co-operation between them, and I can assure him that that co-operation will continue.
My noble friend referred to Turkey and said that it was a large place. He said that people would not come through London, but would go through France. France, too, has transit visa requirements. It has them for more countries than we do. France applies transit visa requirements to Albania, Angola, Bangladesh, Ethiopia, Sri Lanka, Haiti, Ghana, Nigeria, Pakistan, Somalia and Zaire. We are not alone in requiring transit visas. Holland requires transit visas from 1101 nationals of 21 countries, including Iraq, Iran, Sri Lanka, the Lebanon, Somalia, Syria, Turkey, Nigeria and Afghanistan.
I return to the point that the reason transit visas are required is that they are necessary for security purposes and to check on asylum seekers.
My noble friend Lady Gardner of Parkes asked whether I was correct when I said that people could be asked if they had a transit visa when they were airside. If they come from the two countries I have mentioned (Iraq and Sri Lanka) they will be obliged to have a transit visa airside. My noble friend also referred to the noble Lord, Lord Tordoff, who asked what happens if there is a fog. Under the new rules, if someone comes from Sri Lanka to go to Manchester and is diverted to Liverpool because of fog, the carrier would not be charged. Under the old rules, it would be.
My noble friend Lord Trefgarne asked why it was necessary to have the regulations. He wanted to know whether there was a mischief or whether it was just a perceived mischief. It is because there is a mischief that it is necessary to have them.
I come then to my noble friend Lord Brabazon. He made a speech which the noble Lord, Lord Tordoff, suggested was a courageous one. I thought that it was an inconvenient speech. It was extraordinary, because my noble friend put forward an argument for not having transit visas in this country, but he gave his experience of having gone to Russia and Mongolia. He was so inefficient that he did not have the correct visas. I must agree that that was courageous. Even if it was not my noble friend's fault, but that of his private secretary, it was not generous of him to hoist the fault onto his private secretary. I can see that my noble friend had a problem, but should he have come here from one of the countries I mentioned, and have required a transit visa, it would have been up to him to discover the requirements. My noble friend will realise that it is important that when travelling to other countries people find out what the regulations are.
In conclusion, I hope that the Committee will agree to the inclusion of the clause. It is important. It is not included for fun. It is done for the good reason that people move around the world, and it has been found that they do so in such ways as to try to overcome different countries' immigration rules. We have to protect this country's Immigration Rules, and that is why it is important to have the clause.
§ Lord Tordoff
Before the noble Earl sits down perhaps I may ask for clarification. He spoke about Schiphol and about Paris. Are those places subject to carriers' liability legislation?
I find it difficult enough to know what laws we have in this country. I have not the slightest idea what laws other countries have.
§ Lord Brougham and Vaux
Will my noble friend reply to my noble friend Lord Brabazon about the 1102 fines being increased from what they were to what they are now, because obviously the system did not work in the first place?
I apologise because my noble friend has asked that question twice. Either my capacity for hearing is going or my noble friend's capacity for mumbling is greater as I did not understand the question. I should appreciate it if he would repeat the question.
§ Lord Brougham and Vaux
My noble friend Lord Brabazon suggested that the penalties were increased because the original Act was not working. If that is the case why are we carrying on?
§ Lord Tordoff
I am sorry to return to the question of Schiphol and Paris, but the noble Earl rested his case for the clause on the fact that other countries did the same thing and that other countries had to have transit visas. We understand that. However, the debate is not about transit visas but about carriers' liability. Are we talking about equality between ourselves, the Dutch and the French? The noble Earl seeks to defend the position by saying that the French and the Dutch do the same thing because they have visas. I suggest that perhaps they do not have carriers' liability legislation.
I was not resting my argument on the fact that because others do it we should also do so. I said that we find it necessary to have the provision in this country and that other countries have it, too. That is important because it shows that we are not isolated and that other countries take great care about protecting themselves. The noble Lord, Lord Tordoff, asked whether France has carriers' liability legislation. I now recollect from some vague recess at the back of my mind that France does have such legislation and, oddly enough, that the Dutch will also introduce it. I am sorry that I had forgotten.
Clause 12 agreed to.
Lord Brightman moved Amendment No. 64:
After Clause 12, insert the following new clause:
§ ("Supervision of welfare of young persons who seek asylum
§ .—(1) The Secretary of State shall by order provide for the establishment of a panel of advisers for the purpose of supervising in accordance with the provisions of this section the welfare of a child who has arrived in the United Kingdom unaccompanied by an adult person capable of being responsible for him.
§ (2) The members of such a panel shall be appointed from time to time in accordance with the provisions of Schedule (Supervision of welfare of young asylum-seekers) to this Act and shall have the functions therein described.
§ (3) A member of such panel is referred to in this section as a young asylum-seeker's adviser.
§ (4) Where a child unaccompanied by such an adult person arrives in the United Kingdom and is, or appears to an immigration officer to be, under the age of 18 years and such child has made or may reasonably be considered as desiring to make a claim for asylum the immigration officer shall cause the child to be forthwith referred to an appropriate young asylum-seeker's adviser for the purpose of carrying out the functions described in Schedule (Supervision of welfare of young asylum-seekers) to this Act.").1103
§ The noble and learned Lord said: The amendment, which is grouped with Amendment No. 107, is designed to provide advisory assistance, and advisory assistance only, for young children who arrive here unaccompanied as refugees from war-torn countries; that is to say, entirely on their own. The amendments do not seek in any way to alter immigration laws or Immigration Rules.
§ I shall first outline the problem and then deal with the suggested way of coping with it. About 120 unaccompanied child refugees arrive in this country every year, usually at Heathrow, from such places as Eritrea, Somalia, Zaire and now Bosnia. They come from places ravaged by war and internal strife. They are sent away from their homeland by parents, relatives or friends in the hope that they may reach a place of safety.
§ Their background is one of fear. Some are mentally scarred by seeing people shot and their homes destroyed. Some have seen their parents taken into custody. All, being unaccompanied, are on arrival fearful and friendless, exhausted by their journey and suffering from shock at being separated from family and home. Their need is for someone at the point of arrival who speaks their language, is familiar with their culture and background, and can be their friend and adviser until their future is decided according to the laws of this country.
§ The question is how can this problem be met without impinging on immigration law, without burdening the immigration service, and without occasioning significant expense. The solution offered by this amendment is that the Secretary of State is to set up a panel whose function it will be to supervise the welfare of a child who arrives in this country unaccompanied by an adult. The Secretary of State has no other duty. The panel is to consist of persons who are able, or can make contact with persons who are able, to converse in the several languages likely to be spoken by these children, who are familiar with their habits and customs, have knowledge of childcare legislation and immigration procedure.
§ Under the amendment, on arrival of an unaccompanied child refugee at the point of entry, it will be the duty of the immigration officer to contact an appropriate member of the panel. The immigration officer has no other duty imposed upon him. It will be the function of the panel member concerned to safeguard the child's welfare in all matters relating to immigration, accommodation, health, and education. In other words, to steer the child helpfully through the intricacies of our legal and welfare procedures, of which the child is obviously totally ignorant. A panel member is called in the amendment "a young asylum seeker's adviser" and that description exactly fits the panel member's job.
§ The Refugee Council, which is funded I believe by the Government, tells me that there will be no difficulty in finding suitable persons to act as panel members—that is, as young asylum seeker's advisers. I am aware that the effect of the Children Act is to ensure that a local authority will be responsible for the welfare of an unaccompanied child refugee. But social services departments of local authorities simply do not 1104 have the interpretation facilities or expertise to cope with children who arrive on their own as refugees from these countries.
§ The amendments in my name on the Marshalled List have been approved by all local authority organisations and children's organisations that I have approached. They have been approved by the Association of Metropolitan Authorities, the Association of London Authorities, the London Boroughs Association, the Association of Directors of Social Services, the Refugee Council, the Children's Legal Centre, the British Association of Social Workers, the Save the Children Fund, the Children's Society, the British Agencies for Adoption and Fostering, Barnardos and also the Law Society.
§ I appreciate that in these days expense and value for money are considered to be of prime importance. The Refugee Council, in collaboration with the Children's Legal Centre, has costed this scheme. Its estimate of the annual cost is between £60,000 and £64,000 per year. I submit that that is a modest financial burden and that on a humanitarian basis, the scheme represents good value for money. The cost to a local authority of taking a child into care is variously estimated at £25,000 to £40,000 per year. The scheme which I propose will add only a modest £500 or so to that figure in respect of an unaccompanied child.
§ The object of the scheme which I invite the Committee to consider is simply to steer an unaccompanied child refugee on arrival into the hands of a person who can talk to the child in that child's own language, who is familiar with his background and culture and can befriend and advise the child until his future can be decided. I beg to move.
§ 11.30 p.m.
§ Lord Bonham-Carter
I support the amendment moved by the noble and learned Lord, Lord Brightman. As we return to the central issues of the Bill—the problem of refugees and in particular, the problems of asylum-seeking children—I notice that the Benches opposite have emptied. It is difficult not to comment on that fact.
The noble Earl, Lord Ferrers, said earlier that he was not surprised that no difference is made in the Bill between children and adults. I hope that the amendment moved by the noble and learned Lord, Lord Brightman, has convinced him that that view is hardly justified. It seems to me that the need for the amendment is self-evident. I should have thought that it was hardly necessary to argue the case for it. Since it is an amendment which the Government have not accepted, we must try to persuade them of the need for it.
The central point of the amendment is that the needs of children are different from those of adults. To deny that flies in the face of the assumptions and intentions which lie behind the Children Act, the UN convention and the guidelines set by the United Nations High Commissioner for Refugees.
Earlier in the debate, when we were talking about appeals, the noble Earl, Lord Ferrers, pointed out that this country is unique in having an appeals procedure 1105 on questions of entry and that, therefore, the fact that other countries do not have such a procedure is some kind of argument for our not having it.
As regards the treatment of children and child asylum seekers, this country's law is not as good as those of some other countries; for example, Austria, Denmark, Norway and the Netherlands. All those countries make special arrangements for the reception of children. At present there is no one present when an unaccompanied child arrives at a point of entry and is interviewed by an immigration officer. I know that the Government are considering that matter and we hope to hear where their considerations have led them. No one is present except the immigration officer, and that officer is not trained in how to interview children. It seems to me that the need for an independent adviser with the skills described by the noble and learned Lord is self-evident.
I hope that the noble Earl will be able to tell us how this need is to be met. But it is not only on arrival that such an adviser is needed: one is needed also to deal with what a child is meant to do under this Bill, to provide prompt and full disclosure. That is regarded as essential. Somebody must tell the child this and advise him how to do it. He also needs to know, if asylum has been refused, how to make an appeal within two days.
After asylum is granted, who is going to look after the child and see to his welfare? Who is responsible for seeing that the child's interests are truly, in the words of the convention, the primary consideration? They certainly do not appear to be the primary consideration under this Bill. It is to fill this yawning gap in the Bill that this amendment has been proposed, and I hope that the Government will be able to give a positive response.
§ The Lord Bishop of Ripon
I too should like to support the amendment put forward by the noble and learned Lord, Lord Brightman. In doing so I should like to underline one point which has been mentioned frequently during our discussion on this Bill: that is the state of those who arrive in this country seeking asylum. This is particularly true of children: they may well have been subject to torture, imprisonment and harassment, or they may have been threatened with torture or even death in order to extract information from their parents. When parents are imprisoned, dead or missing, the children must flee.
All these circumstances will obviously lead children to be particularly traumatised and affected by the events that they have experienced. They arrive in this country and are then put in the situation of being interviewed by immigration officers when clearly they are in no state to conduct their own case. Were they adult, they would hardly be in a state to do so, but for children that cannot be so. They will most likely be exhausted and confused, not knowing exactly what is going on, perhaps fearful of officials and distrustful of interpreters. For these reasons, an adviser, an advocate would seem to be entirely necessary in order to give children the kind of support they must have if the presentation of their case as an asylum seeker is to be properly made.
1106 The noble Lord, Lord Bonham-Carter, has pointed out the necessity also for help at a later stage, when they begin to seek what is necessary from the social services. However, I am particularly concerned about the need at the moment of arrival and the necessity for someone who can help children to produce a proper case for asylum when they first come, frequently escaping from fearful circumstances.
§ Baroness Faithfull
I too rise to support the noble and learned Lord, Lord Brightman. After Second Reading, I wrote to my noble friend the Minister and asked him on what basis he and Her Majesty's Government based the refusal to appoint advisers, who would be supervised and perhaps appointed by the Refugee Council through the Home Office. I do thank my noble friend the Minister, who has written me a most generous and long letter, explaining the reasons.
What is really strange about this letter is that practically everything the noble and learned Lord has asked for my noble friend agrees with. He writes:Our opposition to Lord Brightman's amendment is certainly not based on any lack of concern for the welfare of unaccompanied children and their proper treatment within the asylum system.He goes on to indicate that the matter is being discussed with immigration officers and with the social services. He also writes that money may be made available to the British Refugee Council.
In effect, the noble Earl has granted everything that the noble and learned Lord, Lord Brightman, asked for. However, there is one problem. Under the Children Act 1989 it is the duty of the local authority to accept into care a child who has no relatives or friends. If the noble Earl is able to put into effect what he said in his generous letter to me, why cannot that be incorporated into the Bill and made a statutory duty?
I expect that my noble friend will argue that that would cause confusion between the social services and the advisory service. I have had to deal with immigrant children and take them into care. I cannot say how dreadful one feels when one is presented with a child by immigration officers and one is unable to communicate with it; one cannot ask the child what it wants to eat or drink or what clothes it wears. One takes the child to a children's home, and the matron does not know what to do with the child or what the child wants. Therefore, it is essential to have an adviser who can interpret the child's needs.
In many cases the help of a volunteer is invoked. At no time has there been a conflict of interest between the volunteers and the staff of the social services departments. I am afraid that if the amendments are not incorporated in the Bill, some social services departments or social workers will not fulfil their duty of contacting somebody who can help a child and help the local authority to understand the needs of the child.
In many court cases a guardian ad litem is appointed, and there are rarely difficulties between the guardian ad litem and the social services department.
I support the amendment, particularly as my noble friend the Minister seems to agree with everything the 1107 noble and learned Lord, Lord Brightman, said. I believe that it is important that it is written into the Bill and becomes a statutory duty. The advisers would not remove from the social services departments their duties under the Children Act 1989. I believe that it is possible to have a good relationship which would help every child who comes to this country unaccompanied.
§ Lord McIntosh of Haringey
The amendment has been very ably moved and supported. I wish only to make two very quick points in addition to what has already been said.
First, it may be argued that there would be a conflict of interest or overlapping of concerns between the panel of advisers proposed by the new clause and schedule and the work of the social services department. The noble Baroness, Lady Faithfull, partially answered that point when she pointed out that the guardian ad litem system, which was established in 1975 and enhanced by the Children Act 1989, works well. There is a general understanding between the courts and social services departments that there are skills of representation of children which are not appropriate for social services departments and the two are distinct and can be kept distinct.
My second point concerns the possible suggestion that there is a conflict between the proposed panel and the work of the Refugee Legal Centre. I appreciate that the Refugee Legal Centre is still only in posse rather than active as the government agency responsible for receiving refugees. However, I suggest that the care of unaccompanied children arriving as refugees is a specialist activity. It might not be appropriate for all members, or even a satisfactory range of members, of the Refugee Legal Centre to have that skill. There is a distinction between the care and representation of children and the specifically legal representation which is the responsibility of the Refugee Legal Centre.
I should not wish it to be considered that the amendments are defective because of any potential conflict either with social services departments or with the Refugee Legal Centre.
§ 11.45 p.m.
§ Lord Finsberg
At an earlier stage I expressed some anxiety about the problems of young asylum seekers. I have therefore listened to the speeches with great interest. They seem well intentioned and warm hearted. But the proposals, especially some of the ideas of the noble and learned Lord, Lord Brightman, need analysing.
The proposed new clause provides that where a child makes a claim for asylum, the immigration officer,shall cause the child to be forthwith referred to an appropriate young asylum-seeker's adviser".The noble and learned Lord stated that it was not possible for the immigration officer to be knowledgable about all the matters that might arise. However, if one considers the proposed schedule with the proposed new clause, people are called upon to be able to converse in several languages, to be, 1108familiar with the habits and customs of the territories … to have knowledge of child-care legislation and immigration procedures",and all that for £64,000 a year. With the greatest respect, I find that impossible to accept.
That does not mean that I do not believe provision should be made. I am saying that I do not believe that the proposed new clause and schedule constitute the right method. There would be delay and there would be brought into being a body of people unable to give the advice that is required. In addition, after the child has been admitted, the advisers are meant to do the work of children's officers and social services departments, as my noble friend Lady Faithfull said. With my knowledge of such problems, I do not believe that that is the right way to proceed. I wish to make it clear that I am still anxious about the welfare of young asylum seekers. I do not believe that they would be helped by taking the route suggested.
§ Baroness Faithfull
Perhaps I may follow up the speech of my noble friend. It is true that the social services departments bear the financial responsibility for looking after and making arrangements for the child. The advisers would advise the social services departments which part of the branch of their service would best be suited to the child. They may recommend a foster home with people of the country of origin of that child. It is only an advisory service. The main financial responsibility is borne by the social services departments in the area of the airport.
§ Lord Finsberg
The local social services department knows more about the specialised needs than advisers drawn from the panel who may come from anywhere. I am desperately uneasy that although the provision sounds wonderful it will not work.
§ Baroness Faithfull
I am sorry to follow that point up again. However, I speak as an ex-director of social services. I had no one on my staff who could speak the languages required. When immigrants came into my area I had to seek out someone in order to interpret what the child needed and wanted. It gave great comfort to the child and helped me to give the good service which the child deserved.
§ Lord Finsberg
I promise that I shall not rise again after making this point. All I can say is that, having led Camden Council which is fairly well known for its massive problems with children and welfare issues, I should have thought that if there was not someone on the staff of the social services director who could cope with the majority of the languages I would look for a new director of social services.
I support with all the strength I can the amendment of the noble and learned Lord, Lord Brightman. I do so in the light of my own experience in Uganda and elsewhere, when I came across a number of unaccompanied refugee children. When they came to London, they suffered in the ways that have been described. I was asked at one stage to put up two of them, which caused me great anxiety. They had not been properly educated, they came from backgrounds of terror and torture, and they were suffering physically and mentally in many ways.
1109 I feel strongly that carers such as the noble and learned Lord described can do excellent work. I wish to make one recommendation which may be new to some Members of the Committee. It is that if the scheme is approved, the example of the Ockenden Venture in Surrey should be studied. I have seen children who have come to Ockenden from Uganda, Thailand, Ethiopia and elsewhere in an appalling state. Some of them were unable to speak even their own language. In a very short time, thanks to the care, guidance and help of specially trained officers, they were rushing around playing with cars and even speaking. I feel that officers trained in that way could achieve a great deal.
§ Lord Hylton
I welcome and support the amendment and the schedule so clearly moved by the noble and learned Lord, Lord Brightman. I do not think that the amendment goes quite far enough, because we have been told by the noble Baroness, Lady Faithfull, that the cost of child care falls on the social services department of the local authority where the child arrives. In the majority of cases that is either Heathrow or Gatwick, or in a few cases Stansted. That seems to me to be a totally unfair burden which has to fall on those local authorities who may be ratecapped or at the top ceiling of their permitted expenditure. I feel that it should be a national responsibility. If the Minister can say that the Government will consider the suggestion of a 100 per cent. grant for the purpose I should be extremely encouraged and satisfied.
I am not at all surprised that the noble Lord, Lord Hylton, would be encouraged and satisfied if I could give such an undertaking. However, I do not think that I can. I agree with my noble friend Lord Finsberg who said that this is a well intentioned amendment; indeed the whole debate has been well intentioned and enlightened.
I am bound to say that when I first saw the amendment of the noble and learned Lord, I too felt attracted to it. Indeed, his speech was such as to make one feel very attracted to it. I agree with my noble friend Lord Finsberg that it has to be analysed a little. What the noble and learned Lord said sounds so simple and so convincing. He said that all we want is to be able to steer an unaccompanied child through the port or airport on its arrival before its future can be decided. I do not believe that there is any difference between us on that point. We all want to see that children are properly protected and looked after. Children come in very difficult circumstances, as my noble friend Lady Faithfull said. Sometimes they cannot speak, one cannot ask them what food they want, and so on. It is not a situation that I have experienced but my noble friend has and obviously it is very distressing.
However, one must remember that there are provisions under the Children Act. They apply to children who arrive here seeking asylum, as they do to other children who are already in the country. An important point is that the responsibility for the welfare of the children lies quite firmly and legally with the local authorities, irrespective of who the child is or 1110 from where it comes. I can understand the desire of the noble and learned Lord, Lord Brightman, to help children. It is a desire which we all share. But I wonder whether to create another body or agency which had care responsibilities toward child asylum seekers would not in fact muddle the local authority's role. The local authorities are, after all, best placed in the absence of a parent, relative or other guardian to tend to the welfare needs of the children in terms of personnel, experience, facilities and resources. The Children Act specifically gave to the local authorities those duties and responsibilities of looking after children in need.
My noble friend Lady Faithfull said she thought that I would say there is a difficulty in an overlap of responsibilities. She thought correctly. She said that she did not think there would be an overlap, but I agree with my noble friend Lord Finsberg. I believe that there would be difficulties. I believe there would be difficulties if we have two bodies, both having responsibilities for the children.
There are, I think, two issues which are sometimes confused with this priority of care and welfare. The first is the question of the knowledge and experience of the asylum process. I accept that local authority staff may not be familiar with the procedures or the best way in which to put in train or pursue an asylum application. But other expert sources of advice are available. To start with, one could approach the asylum division itself; and the Refugees Legal Centre is specifically funded to provide an advice and representation service for any asylum seeker. Staff are specialists in the asylum procedures and in preparing and presenting cases. I understand that they have a team of counsellors who are designated specifically to deal with vulnerable applicants, and that includes children.
The second point to which the noble and learned Lord referred, as did the right reverend Prelate, is that children who come as asylum seekers often arrive from another country and have particular needs in relation to trauma and general feelings of isolation from their own culture. They were both right to stress that point. Those children obviously have very special needs. Therefore it could be said that there is a perceived need for a "friend" to whom they can attach themselves, to whom they can relate and who will understand their feelings.
That kind of proposition has great attraction; but I am not sure that legislation can achieve that. I think it would be difficult, in practical terms, to create a body of professional people who are experts in child psychology, or specialists in refugee issues, familiar with a range of different languages and cultures. Even if we were able to create such a body, I am not sure that it would necessarily achieve some of the results which are intended.
We have heard examples quoted from time to time of welfare officers arriving at a port to collect a child only to realise that they could not converse with it. We have heard how children are suspicious and frightened of all adults, particularly officials. I can understand that. I am not sure that we could guarantee that a child would immediately take to any special advocate 1111 allocated to him or her. I do not deny that those matters pose problems. I am sure that we ought to be able to overcome them. Taking on the care of a child cuts across whole areas of responsibility other than just those which may be immediately identified—matters such as their general health, education, training and social needs.
The number of unaccompanied children arriving at airports for asylum is not large. What the noble and learned Lord proposes incorporates a great deal of humanity and understanding, and I have a great deal of sympathy for it. However, I doubt that in practice it would work properly. I shall certainly be prepared to look further and see whether there are any ways in which we can meet with the general consensus expressed. But I doubt that we shall be able to go the whole hog anticipated by the noble and learned Lord.
§ Baroness Faithfull
Before my noble friend sits down perhaps I can say that I had a long discussion with the Director of Social Services for Hillingdon, which is the area dealing with London Airport. The director said that she and all her staff would welcome the scheme; that it would help them enormously besides helping the children and that they did not believe it would cause conflict.
§ Lord Brightman
I am most grateful for the lukewarm welcome which the amendment received from the noble Earl. I shall clearly consider the criticisms made and, if appropriate, perhaps the matter can come back at Report stage. In the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 12 midnight
Lord Tordoff moved Amendment No. 65:
After Clause 12, insert the following new clause:
§ ("Definition of offence under 1987 Act
§ . A person shall be guilty of an offence punishable on summary conviction by a fine of not more than level 5 on the standard scale or by imprisonment for not more than six months, or by both, in any of the following cases—
- (a) he shall either by himself or in conjunction with any other person or persons prevent, hinder or delay any traveller claiming asylum from being lawfully examined by an immigration officer,
- (b) if being an immigration officer he shall conduct the examination either without authority or in such a manner as to render that examination unlawful, or
- (c) if as owner or agent of a ship or aircraft he shall procure, assist or permit any employee, servant, agent or any other person to commit an offence under paragraph (a) above.").
§ The noble Lord said: I suppose I ought to begin by saying "Good morning"! Yesterday has become today or today has become tomorrow, I am not quite sure which at this moment.
§ Amendment No. 65 seeks to create a new offence aimed at preventing people from hindering or delaying any traveller claiming asylum from being lawfully examined by an immigration officer, and various other provisions. I shall speak to the amendment as briefly as I can because it is late, but I should like to ask the Minister a number of questions.
§ It is accepted that over the past years there have been a number of serious allegations that asylum 1112 seekers have been denied access to the asylum process after arriving at UK ports. Indeed, in January and June 1990, after initially denying any improper conduct by immigration officials, the Home Office conceded that in 23 cases of expulsion of Kurds from Turkey who attempted to apply for asylum in the UK in May and June of 1989, immigration officials had acted illegally in expelling the individuals concerned without referring the asylum applications to the Home Office asylum division. Indeed, the other evening I pointed out to the noble Earl that it actually cost the Home Office a certain amount of money to put right some of those matters.
§ However, the prevention of access to the asylum process has not been limited only to immigration officers. Amnesty International reported a number of worrying instances where asylum seekers have been prevented from applying for asylum by airline officials in the UK. I could detail a long list of harrowing situations that have occurred, but do not intend to spend too much time doing so. For example, in September 1990 at Heathrow two young Eritreans were allegedly dragged back on to a Kenyan Airways' aircraft without any consideration of their asylum claims, one of them being a former political prisoner in Ethiopia who had suffered torture while in prison.
§ Understandably, the Government have refused to accept responsibility for those incidents. But in each case it is apparent that members of the airline staff acted as they did to avoid incurring liability under the carriers' liability Act. It is perfectly understandable, if reprehensible, that they should do so. As we said earlier, it costs the airlines a lot of money.
§ The amendment proposes that if any person, be he an immigration officer, an airline official, official interpreter or anyone else, prevents an asylum seeker from making a claim for asylum, he should be guilty of an offence. The details of what the cost of the offence should be are contained in the amendment. It is interesting that this is comparable with the fine imposed on the carriers under the Immigration (Carriers' Liability) Act.
A shortened version of the amendment was introduced during the Committee stage in another place. I understand that the Minister of State, Mr. Peter Lloyd, acknowledged that there had been cases of people who had arrived in this country intending to claim political asylum and who had been forcibly prevented from leaving the aeroplane and approaching immigration control. During the debate he said:
The Government have always made it clear that such behaviour is unacceptable. No individual who has arrived here should be restrained in that way".
I say straight away that I accept that that is the Government's position and I am not criticising the Government in any way because of that. But I understand that the amendment was withdrawn because the Minister wished to consider a widening of the original amendment as that referred specifically to asylum seekers. His comment at the time was:
I would rather that it did not hinge on asylum seekers but dealt with the forcible restraint of anyone who has been brought to Britain from doing anything legitimate, such as leaving a 'plane in appropriate circumstances, irrespective of whether that person wishes to claim asylum".
I should like to know from the noble Earl, Lord Ferrers, whether anything has happened; if so, what; and if not, why not? I beg to move.
I understand the noble Lord's concern that anyone who comes to the United Kingdom and wishes to claim asylum should have an opportunity of doing so. There is no question about that. I am aware that there have been allegations that in some cases passengers have been prevented from disembarking or from approaching the immigration control. I can assure the Committee that the Government would not condone such behaviour.
Immigration officers have clear instructions that a person who claims asylum while on United Kingdom soil must have his application referred to the asylum division of the Home Office. Having said that, I very much doubt whether the creation of a new criminal offence would be an appropriate response to that. As the noble Lord said, it is totally unacceptable that airlines should seek physically to prevent a passenger from approaching the immigration control. Indeed, if they were to do that, it would be an offence. Our disapproval of such actions was, as he quite rightly said, made clear by my honourable friend the Minister of State in another place. I reiterate it today. Once the passenger has arrived in the United Kingdom it is too late for the airline to ask itself whether it should have carried him.
The noble Lord asked whether anything had happened about this. If I may, I should like to consider what the noble Lord has said and let him know if there are any further actions which we can take with regard to this. The Government continue to make clear to carriers that this kind of behaviour is unacceptable. I hope that we will not see any more of it.
§ Lord Tordoff
I am grateful to the noble Earl for that, but I think he will understand that good wishes are not necessarily enough in a case like this. I hope that he can pursue it further. As I understand it, an undertaking was given in another place. I well understand that the amendment is probably imperfect. It is not in my nature, as I am sure he will recognise, to go around creating new offences or new penalties, but, to be quite serious, it is obviously something which we all agree should not happen. The question is how to find the appropriate sanction to ensure that it does not happen again. With the assurance that he has given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Tordoff moved Amendment No. 66:
After Clause 12, insert the following new clause:
§ ("Monthly report to Parliament
§ . Within one calendar month of the coming into force of this Act the Secretary of State shall report every calendar month to both Houses of Parliament the following matters relating to the Immigration (Carriers' Liability) Act 1987—
- (a) the number of fines levied during each period together with the cumulative totals,
- (b) a record identifying the airlines or carriers and the amount of fines which have been levied against each of them,
- (c) the total number of passengers arriving in the United Kingdom in respect of which fines could have been levied,
- (d) the total sum actually recovered in respect of the levies, and
- (e) the number of fines which are being disputed by the carriers.").
§ The noble Lord said: This amendment takes us back to the carriers' liability Act. It was referred to peripherally by the noble Lord, Lord Mountevans, earlier. It is a question of having a certain degree of transparency in letting people know who is cheating on the Act and who is not. I believe that British Airways, for instance, acknowledges that it has had to pay a great deal of money under the Act. Shipping companies in this country have had to do the same. They have been quite open about it. They recognise that from time to time they make mistakes and they have paid up.
§ Unfortunately, that is not true of other carriers coming into this country. The matter of non-payment arose in the other place in a Select Committee in the last Parliament under the chairmanship of Sir John Wheeler MP. In a study of the workings of the immigration department, evidence was given that several million pounds was outstanding in carriers' liability Act penalties. The report mentioned, almost in passing, that the Home Office really ought to do something about it and demand the money or get Her Majesty's Government to withdraw landing rights in the United Kingdom.
§ I believe that the noble Lord, Lord Mountevans, said that action had been taken against one or two European airlines who were far from being the most serious offenders. I gather that the most serious offenders are Nigerian Airways and Aeroflot, if I dare mention those names. Nothing seems to be done about them. If the Act is to be applied, then people should know who is offending against it just as some years ago we found that certain high commissions and embassies in London were failing to pay their parking fines.
§ I do not believe that we should be coy about the matter. The purpose of the amendment is to try to smoke out the problem and to make sure that there is some kind of report to Parliament to identify those people who are not paying the fines which they have been charged under the Act. I beg to move.
The immigration service does collect statistics on the lines envisaged in the amendment moved by the noble Lord, Lord Tordoff. Indeed the Government are frequently asked for such information in parliamentary Questions and so forth and the Committee knows that, with one exception, I am always happy to supply it. I am not at all sure that monthly reports to Parliament would serve any useful purpose. That seems to me a somewhat excessive line to take. But I would not seek to dull the appetite of those Members of the Committee who thrive on statistics. It may be that adoption of the amendment would serve no purpose other than to provide your Lordships with a continuing stream of numbers and statistics.
The exception which I mentioned is that some carriers regard the information as being of commercial 1115 importance. They do not wish to have their carriers' liability debts laid out for scrutiny, including scrutiny by their competitors. We have so far respected that wish. I reaffirm my willingness to provide such information as is available to any noble Lord who seeks it. I do not believe that the amendment is necessary to achieve that.
§ Lord Tordoff
I must admit that my appetite is somewhat dulled at this time of the evening. I am not sure that commercial considerations are sufficient for people to hide behind. However bad the law, these people are breaking it. In most cases where people break the law and are fined, that becomes public knowledge. I do not see why that should not be the case as regards carriers' liability. I do not propose to press the amendment at this time of night, although it might be amusing to do so. I thank the noble Earl for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 12.15 a.m.
Lord Bonham-Carter moved Amendment No. 67:
After Clause 12, insert the following new clause:
§ ("Duty of Secretary of State
§ . In the determination of applications for asylum by children under the age of 18, the Secretary of State shall—
- (a) ensure that a child is fully informed, in a manner appropriate to his age, of the nature of an asylum application and is provided with sufficient opportunity to describe his reasons for the application;
- (b) ensure an independent assessment is made of the child's ability to articulate a 'well-founded fear of persecution'; and such assessment should be undertaken by a childcare specialist with knowledge of refugee matters;
- (c) ensure full consideration is given to objective factors including
- (i) the circumstances of the child's parents and other family members in the country of origin or elsewhere,
- (ii) the characteristics of the child's ethnic, national, religious or other social group in the country of origin,
- (iii) the general conditions prevailing in the country of origin, and
- (iv) specific forms of persecution directed at children in the country of origin;
- (d) apply liberally in the case of a child the general principal that the benefit of the doubt should be given to an asylum applicant.").
The noble Lord said: The purpose of this new clause is to ensure that special procedures and criteria are put in place for the determination of asylum applications by children. I return to the theme which we have raised again and again in this debate—that children have special needs which need to be met. As was the case with Amendment No. 64, it seems almost self-evident that what the amendment demands should be conceded. I quote from the Children's Legal Centre:
In all countries children share to some extent a common legal status and are treated as a distinct social group in matters of law, policy and social customs",
but not in this Bill. I quote again from the Children's Legal Centre:
It is recognised in many areas of law and policy that children must be afforded special consideration",
but not in this Bill.
I quote from the United Nations Convention on the Rights of the Child:
the child, by reasons of his physical and mental immaturity, needs special safeguards and care",
but that is not recognised in this Bill.
§ My amendment seeks to meet the requirements which are set forth in those quotations and to fill the gap in the Bill to which I have referred previously and which I find unreasonable and indefensible in determining applications for asylum by children. It also intends to emphasise that, in the case of a child, the general principle that benefit of doubt should be given to an asylum applicant is particularly strong. It re-emphasises the need, which the noble and learned Lord, Lord Brightman, mentioned earlier, for special care to be taken in the case of children, and for the need for people with special skills in child care and child interviewing to be involved throughout. It re-emphasises also that people should know the language and the cultural and family background of the child in question. All those are humanitarian needs which are undeniable. Although the noble Earl willed the ends in his response to the amendment moved by the noble and learned Lord, Lord Brightman, he steadfastly refused to will the means. I hope that, in this case, if he will not will my means, he will provide some means of his own. I beg to move.
§ Lord Finsberg
I imagine that we could have an interesting debate on this new clause, but it seems to be covered by the closing remarks of my noble friend when he acknowledged, in response to the debate started by the noble and learned Lord, Lord Brightman, that there was concern on all sides and that he would look at the general question of the problem of children. This falls into that category and, for that reason, I do not propose to weary the Committee any more except to assume that my noble friend will include this concept in the examination that he is to undertake.
In our earlier Committee discussions I said that I did not think it appropriate to include on the face of primary legislation procedural matters of the sort listed by the noble Lord in his amendment. I assume that the new clause is intended primarily to apply to unaccompanied child asylum seekers who arrive here, but the phrasing of the proposals means that they would apply to all asylum-seeking children, even where they arrive as part of a family group. Subsection (a) would therefore oblige officials to notify the procedures separately for a child whose parents have claimed asylum. I do not think that that is either desirable in terms of the effect on the child and the resources involved or necessary—indeed, it may not even have been intended.
Some of the points raised have been mentioned in previous debates; but it may be helpful if I briefly outline our policy and practices. All immigration officers and Asylum Division staff exercise particular care when dealing with applications involving children. It is important in assessing any asylum claim that a meaningful dialogue is established and that both parties understand as fully as possible the meaning and intention of the other. Asylum Division staff have regard to any implied fear of return or 1117 persecution as well as to any clearly stated claim, and are well versed in exploring different avenues within a claim.
An assessment of so called "objective factors" (paragraph (c)) is carried out in relation to every claim for asylum. In cases involving children, particular care is paid to the whereabouts of other family members since the possible removal of a child cannot be contemplated without ensuring that suitable reception arrangements have been made.
Whenever there is a doubt in a borderline case, the benefit of that doubt is always given to the asylum seeker. I think it would be somewhat dangerous to build in the guarantee advocated in paragraph (d) that the benefit of any such doubt should be applied "liberally" to children. Given the high proportion of asylum seekers who dispose of identification documents, and the problems we have already discussed of determining age on a visual basis, I fear that such a generous statement of intent might encourage further misuse of the procedures.
I hope that I have given the noble Lord, Lord Bonham-Carter, what he wants. He said that if he could not provide the means, perhaps I would. My noble friend Lord Finsberg was right when he pointed out that I have undertaken to consider what guidance might be included in the rules relating to applications from children. I shall reflect upon the points that have been raised in the debate regarding that matter.
§ Baroness Seear
I do not want to prolong the debate; but the Minister told us that the things requested in the amendment are being done. How can they be done if the child does not understand English and the people with whom he is dealing do not understand his language? None of those things is possible unless one can talk to someone. If one does not know the language, one cannot talk to the child.
§ Lord Bonham-Carter
The Minister cannot possibly believe that I would think his reply satisfactory or gave me what I wanted. He expressed a number of admirable sentiments rather in the manner of how he criticised some of our earlier amendments. The sentiments were admirable, but the means whereby they could be made to mean something were sadly lacking.
As I understand it, the Minister was saying that the amendment applied primarily to an unaccompanied child. I should be happy if his answers dealt primarily with the unaccompanied child. Secondly, he said that immigration officers deal with children with the utmost care; but, as I understand it, they receive no training in this delicate and highly professional task. I should be happier if he said that although he could not provide X, Y or Z, he would see that immigration officers were trained in the task, even if the number of children involved is small. The fact that the numbers are small makes it all the easier to deal with the problem because the cost is so little.
1118 I cannot believe that the Minister was serious when he talked about children destroying their documents; but if he was, that is a fantastic notion. Perhaps he was. Do I understand him to say that what we hope to achieve by the amendment will be incorporated in the rules? If so, will we be told how those rules will be framed? Perhaps I can ask the Minister that question before I sit down.
I said that I would take into account what the Committee has said in this debate and see how parts of those sentiments could be reflected in the rules. I cannot go much further than that.
§ Lord Bonham-Carter
I do not propose to press the amendment at this time but I shall read what the Minister said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Clause 14 Commencement:
Lord McIntosh of Haringey moved Amendment No. 68:
Page 9, line 31, at end insert ("save that section 7 shall not come into force before sections 8 and 9.").
The noble Lord said: It is not usual for amendments to be moved to commencement clauses of Bills but this is a rather unusual commencement clause. It embodies the principle that the Secretary of State shall do what he wants. Subsection (1) states that the Bill:
shall not come into force until such day as the Secretary of State may by order appoint, and different days may be appointed for different provisions or for different purposes".
Subsection (3) spells out in detail, which I should not have thought necessary having been given the generality of subsection (1), the fact that the Secretary of State:
may appoint different days in relation to different descriptions of asylum-seekers".
The only exception to the almost absolute power which the Secretary of State has is that different days may not be determined by reference to race, colour or religion, and we must be grateful for that.
§ This is an unusually open commencement clause and it gives the Secretary of State virtually unlimited powers. There is one particular power which the amendment seeks to remove. It is the power to bring in Clause 7, which covers the curtailment of leave to enter or remain, before Clauses 8 or 9, which cover appeals to the special adjudicator and appeals from the Immigration Appeal Tribunal.
§ We have spent many hours debating the clauses and I shall not go over the issues again. Clause 7 is a highly restrictive clause which the Government would have had even more difficulty defending had it not been for the presence of the appeals procedures provided in Clauses 8 and 9. It would be contrary to the common sense as well as to the thrust of the debate on those clauses if the curtailment were introduced without the protection provided by the subsequent clauses. I beg to move.
I can assure the noble Lord, Lord McIntosh, that we have no intention of introducing an order to bring Clause 7 of the Bill into force before the 1119 provisions of Clauses 8 and 9 come into effect. But I do not believe that it is necessary to place that provision on the face of the Bill.
Our purpose in bringing forward the package of appeals provisions is to streamline and accelerate the existing system. There would be no advantage in bringing Clause 7 into effect before Clause 8 since to do so would mean that, although a person whose leave was curtailed would not have a right of appeal under Section 14 of the Immigration Act against the curtailment, he could only he removed following an appeal under Section 15 against a deportation decision. That would not be subject to the procedures and time-limits provided by the rules to be made for appeals under Clause 8. Clauses 7, 8 and 9 form part of a package and it is our intention to bring them into effect together.
The precise timing of the various orders has yet to be decided. It will be necessary, for example, to consult with my noble and learned friend the Lord Chancellor on when the relevant courts will be in a position to implement the new procedures.
§ Lord McIntosh of Haringey
I accept the Minister's assurance and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 69 and 70 not moved.]
Clause 14 agreed to.
[Amendments Nos. 71 to 106 had already been disposed of.]
Remaining clauses and schedule agreed to.
Lord Brightman had given notice of his intention to move Amendment No. 107:
After Schedule 2, insert the following new schedule: