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Lord McIntosh of Haringey: Does the amendment say that? Does Section 5 of the Immigration Act 1988 say that?
Baroness Blatch: The noble Lord knows that there have been two newly created offences. One is coming in by deception and one is staying by deception. We say that anybody who is an offender under this new Bill shall be treated equally. Therefore, these amendments bring that new offence into line.
Earl Russell: The noble Baroness knows that I think that her position is in contravention of Article 31 of the UN Convention on Refugees. She knows that I am of another opinion. The international court will be the judge between us.
Baroness Blatch: May I ask the noble Earl what is in contravention? If somebody seeks leave to enter this country and remain by deception, how does that fall foul of that particular section of the convention?
Earl Russell: That section specifically states that it shall be lawful to enter for the purpose of claiming asylum and it shall not be an offence to have done so by deception. It says that people may enter and "then" without delay claim asylum.
We have been through this argument many times. It will have to go to court. The Home Office has not done well on court cases. We shall see.
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [Short title, interpretation, commencement and extent]:
[Amendment No. 128 had been withdrawn from the Marshalled List.]
The Deputy Chairman of Committees (Lord McColl of Dulwich): If Amendment No. 129 is agreed to, I cannot call Amendments Nos. 130 and 130A.
[Amendments Nos. 129 and 130 not moved.]
Earl Russell moved Amendment No. 130A:
The noble Earl said: On behalf of my noble friend Lord Lester of Herne Hill, who is unable to be present for reasons beyond his control, I rise to move this amendment for the purposes of asking a question. I understand that since the word "immigrant" is to be replaced, we will need to redraft the clause. It seems foolish therefore to divide on an amendment to amend it now.
I wish to ask about the words at the end of the clause,
Baroness Blatch: Amendment No. 130A would have the effect of limiting the application of Clauses 8, 9 and 10 to people who require leave to enter or remain in this country and to whom such leave has not been granted. In effect, those clauses would bite only on people who are granted temporary admission from a port or who are in breach of our immigration laws by entering illegally or staying beyond their leave. While we welcome the implicit acceptance that employers should not be permitted to employ such persons and that such persons should not have access to housing and child benefit, the amendment would limit the scope of the relevant clauses too narrowly.
For example, it would be an offence for an employer to employ an illegal entrant or overstayer, but it would not be an offence to employ a person who had been admitted as a visitor on condition that he would not engage in employment. But surely a person who gives such an undertaking and then breaches it is just as culpable. If we cannot use Clause 8 to strengthen the enforcement of employment restrictions, then much of its value will be lost.
Similarly, the amendment would mean that the restrictions on access to council housing and entitlement under the homelessness legislation could not be applied to people who had been admitted, for example as visitors, on the basis that they will maintain and accommodate themselves without recourse to public funds. That, too, is unacceptable, just as it is unacceptable that such people should retain entitlement to child benefit.
I am surprised that the noble Earl should seek to advance an amendment which would enable people with impunity to gain access to employment, housing and benefit in breach of undertakings given on admission.
In response to the noble Earl's question, I am advised that the provision deals with people who are here illegally, without leave.
Earl Russell: We are having a dialogue of the deaf. In the way of justice, none of us should see salvation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 131 to 133 not moved.]
Schedule 1 [Amendments of the 1971 Act]:
Baroness Blatch moved Amendment No. 133ZA:
On Question, amendment agreed to.
[Amendment No. 133A not moved.]
Baroness Blatch moved Amendment No. 133AA:
The noble Baroness said: This is a minor technical and transitional amendment which is consequent to the measure in paragraph 1(1) of Schedule 1 to the Bill which will allow a condition requiring a person to maintain and accommodate himself and any dependants without recourse to public funds to be attached to the grant of leave to that person.
This amendment is concerned with those people who already have leave in the United Kingdom which is not subject to the condition referred to above in anything other than an understanding of their entry into the country. If the condition requiring non-recourse to public funds was attached to subsequent grants of leave to such people, they would receive a right of appeal against the variation of the conditions attached to their leave. These appeals would be of little value and would create additional, nugatory work for the already overstretched appellate authorities. The amendment would remove the right of appeal if it was available solely on the ground that a condition requiring non-recourse to public funds had been added to the leave of a person who had been granted leave previously without such a condition.
It is not our intention to impose any new requirements on foreign nationals. It has long been a requirement of the Immigration Rules that certain categories of people such as students, visitors and the dependants of people settled here should be able to maintain and accommodate themselves without recourse to public funds. The Bill provides a power to make this requirement a condition of leave to enter or remain, and for such a condition to be placed, where appropriate, in a person's passport. The Government are not seeking to impose any requirements other than those already contained in the Immigration Rules and there would be nothing to be gained by preserving a right of appeal in such cases.
In conclusion, it is worth emphasising that this is essentially a transitional measure. In future, when leave to enter is granted, a condition requiring maintenance and accommodation without recourse to public funds can be attached formally to the grant of leave. The same condition can be attached to any subsequent variation of that leave, and there will be no question of an appeal right in these circumstances. The amendment simply avoids the prospect of a considerable amount of unproductive work altering the conditions of people who are already here. I beg to move.
On Question, amendment agreed to.
[Amendment No. 133B not moved.]
Lord Dubs moved Amendment No. 134:
The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 137A, which is consequential upon it. There is a fundamental point of principle here. In this country we do not deprive individuals of their liberty unless there is due process of law. Except for those unfortunate individuals who are detained under Immigration Act provisions I can think of no circumstance in which, on the decision of an official, people can be locked up and denied their liberty without any judicial process. I cannot believe that this point is properly understood; otherwise I do not believe the Government would have persisted with this policy. It is in breach, so far as I know, of every international human rights convention. As a country which has always prided itself on the rights of individuals and a proper sense of justice, how can we allow people to be deprived of their liberty without any judicial safeguards?
Under the Prevention of Terrorism Act individuals can be detained for not longer than seven days without the Home Secretary giving his assent. Under the Police and Criminal Evidence Act a person may not be detained for more than 36 hours before being charged, at which point a court has to say that detention may continue, and never more than 96 hours in any case, with a second provision at 72 hours. Yet here we have people against whom there is no criminal charge, people who are in every sense innocent, who can be detained indefinitely under the present provisions. That is surely wrong in principle.
The amendment is very modest indeed. All it says is that when an individual is detained under Immigration Act provisions, after seven days an immigration adjudicator should give his or her agreement for that detention to continue. That is all. It is surely a minimal safeguard against an abuse of power. I am not saying that Home Office officials abuse their powers deliberately, but sometimes mistakes happen. An individual person detained has no proper recourse. It can
The United Nations High Commissioner for Refugees has issued some guidelines on the detention of asylum seekers. There are three procedural safeguards. The first is that the detained person shall have the right to be informed of the reasons for detention. That is reasonable and it probably happens in most cases. The third is the right to contact the local UNHCR office. I am not sure whether that happens, but it would not be difficult to arrange. It is the second procedural safeguard which is the key. It refers to,
I have visited Campsfield House which is one of the places where asylum seekers are detained. Being there is a depressing experience, as is talking to the people there--sometimes through an interpreter. Having reached what they thought was a free country, they are utterly bewildered at being detained without any knowledge of what has happened to them and whether they have any chance of being released. It is a deeply depressing experience. I think that it is a blight on this country that we lock up innocent people at Campsfield House and other such centres.
This is a modest amendment. Frankly, if it were earlier in the evening I suspect that the Committee would support it, but perhaps the Committee will not be minded to do that at this hour. I beg to move.
Page 8, line 6, leave out from ("Kingdom") to end of line 7 and insert ("and for whom such leave has not been given").
"'immigrant' means a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)".
Why are the words,
"whether or not such leave has been given",
necessary? What is the objection to people to whom leave has been given? I do not understand this and never have. I beg to move.
Page 9, line 19, at end insert--
("( ) In subsection (1) of section 5 of the Immigration Act 1988 (restricted right of appeal against deportation), after paragraph (a) there shall be inserted the following paragraph--
"(aa) by virtue of section 3(5)(aa) of that Act (leave obtained by deception); or".").
Page 9, leave out line 26 and insert--
(".--(1) After subsection (2) of section 14 of the 1971 Act (appeals against conditions), there shall be inserted the following subsection--
"(2ZA) A person shall not be entitled to appeal under subsection (1) above against--
(a) a variation of his leave which adds such a condition as is mentioned in section 3(1)(c)(ii) above; or
(b) a refusal to vary his leave by revoking such a condition."
(2) In subsection (2B) of that section, for").
9.30 p.m.
Page 10, line 22, at end insert--
("Powers of detention
6A. In sub-paragraph (1) of paragraph 16 of Schedule 1 of the 1971 Act (detention pending examination), after the words "refuse him leave to enter" there shall be added the words "for a period of seven days".").
"the right to challenge the lawfulness of the deprivation of liberty promptly before a competent, independent and impartial authority, where the individual may present his arguments either personally or through a representative".
The amendment seeks to do precisely that and no more. It seeks to provide one hearing before a special adjudicator to decide whether or not the detention should continue.
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