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Lord McIntosh of Haringey: My Lords, the Minister can hardly describe as a wrecking amendment something which has been introduced as a probing amendment. We were seeking information and clarification from the Government. Although we do not like the clarification that we have been given, certainly we have been given clarification. It is now apparent that under Clauses 2 and 3 the appeal is no longer a substantive appeal on the immigration application. The Minister now tells us that it is an appeal on the issue of whether or not the third country is safe. The whole thrust of Clauses 2 and 3, which provide for the removal of asylum claimants to safe third countries, is very different from that which had been quite widely supposed.

Baroness Blatch: My Lords, I am surprised that the noble Lord did not realise that that was what Clause 3 was about. The noble Lord has been reading Clause 3 since the outset of the debates on this Bill. Clause 3 has only ever been concerned with appeals against the measures in Clause 2.

Lord McIntosh of Haringey: My Lords, it is true that Clause 3 is very limited in the scope of the appeal. But Clause 3 must be read together with Clause 2. We

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have to consider the apparent fact that Clause 2 is not intended to be a way of speeding up procedures or providing a more economical way of dealing with asylum applications. It is a way of sweeping asylum applications under the carpet in such a way that they can never be brought out again. I read Clause 3 exactly as the Minister said. But I take this opportunity--and I move this amendment deliberately--to bring into the open the severe limitations on the appeal procedure which is provided for in Clause 3. There is no confusion in our minds or any difference of understanding. We want to ensure that Hansard recognises the position.

The Minister went on to say that there were a number of ways in which an appellant from a third country could be represented and take part vicariously in the appeal procedure. She spoke about friends and relatives in this country and the availability of legal advice. But the experience of all appeal tribunals of this kind, not just in the immigration and asylum field but throughout the scope of tribunal procedure, is that where the appellant is not able to take personal part in the proceedings he is likely to fare worse than if he is able to be present. Even if the appeal under Clause 3 is as limited as it appears to be, it still ought to be a fair appeal and one in which the appellant has a reasonable chance of success. An appeal in absence does not give a reasonable chance of success.

I do not regret moving this amendment, despite the necessary qualifications which would have to be made if it were to be agreed. It is right to point out that Clause 3 provides very much less protection against the activities provided for under that clause than might otherwise be supposed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Dubs moved Amendment No. 33:

Page 4, line 23, at end insert--
("( ) For the avoidance of doubt, directions under section 19(3) of the 1971 Act may include directions--
(a) that an entry clearance be issued notwithstanding that any requirement of the immigration rules has not been met;
(b) that a laissez passer or other travel document be issued;
(c) that the return to the United Kingdom of the appellant and any family members removed as his dependants be arranged and that the Secretary of State bear the cost thereof if there is evidence that the appellant would be unable to pay the cost himself;
(d) that no further certificate under section 2 be issued in respect of the appellant or any dependant of his; and
(e) that the Secretary of State uses his best endeavours to locate an asylum seeker who has won an appeal under this section in order that he be invited to return to the United Kingdom.").

The noble Lord said: My Lords, perhaps I may emphasise that this is a probing amendment. As I recall, it was not debated in Committee. In that sense, we are seeking the Minister's response to issues which were not discussed in this House at earlier stages of the Bill.

I appreciate that because it is an amendment to Clause 3 it may be narrower in its relevance than it would be if it applied to all appeals. To that extent I appreciate that I am after wider comments from the

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Minister than those merely in relation to Clause 3. The point at issue is that when an adjudicator allows an appeal, he can normally give directions to give effect to that decision. That, I believe, stems from the 1971 Act. Those directions can be given only to the Secretary of State or his officials.

What is not clear, and where I am seeking clarification from the Minister, is as to what powers the adjudicator has where an appeal against a decision to remove succeeds after the removal of the individual; that is to say, what powers does an adjudicator have to recommend that help be given to the successful appellant to be able to return to this country, the appellant having been removed before the result of the appeal? It may be a matter of documents or entry clearance, but it may also be a matter of compensating the appellant so that the appellant can make the journey back to this country in circumstances where he would not normally be able to afford to do so.

There is a range of circumstances where the adjudicator might be able to give directions so that action is taken to help the appellant, as indicated in the points in the amendment. I repeat, it is a probing amendment to see what is the Government's response, and whether the thrust of the amendment is clear. I beg to move.

Baroness Williams of Crosby: My Lords, I commend the efforts of the noble Lords, Lord McIntosh and Lord Dubs, to find out just what is the meaning of the right of appeal under Clause 3. With Amendment No. 33 what they are clearly trying to do is to establish whether, if someone has a successful appeal from the third country to which they have been sent, the consequences of that appeal will be recognised by the UK.

We have already discovered that the likelihood of people being able to pursue an appeal from another country will be difficult, because they will not have the kind of help that the Minister described a few moments ago in her response to the noble Lord, Lord McIntosh. We now have what we might call the minimal position of what happens if the appeal is successful and whether it can be made real. It would be helpful to know whether, if an appeal is successful, the necessary material and other steps can be taken to ensure that that appeal becomes not just a legal victory but a real victory in terms of the person concerned being permitted to return to this country, and to live here according to the terms of the adjudicator's decision.

Baroness Blatch: My Lords, Amendment No. 33 purports to clarify the directions an adjudicator could issue in the event of a successful appeal, but it strays into territory which is not properly the subject of an adjudicator's directions. The noble Lord, Lord Dubs, said that he would like to know whether the adjudicator has powers to recommend. I can give him an absolute assurance that he does have powers to recommend, but what he does not have are powers to direct, which of course is the subject of the amendment.

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Section 19 of the Immigration Act 1971 provides that if an adjudicator allows an appeal, he:

    "shall give such directions for giving effect to the determination as he thinks requisite, and may also make recommendations with respect to any other action which [he] considers should be taken in the case."
For the purposes of this debate the distinction between directions and recommendations is important. The Secretary of State is required to comply with directions, but he is not bound by an adjudicator's recommendations. Directions should be confined to measures which are necessary to give effect to the decision to allow the appeal. Any steps which the adjudicator thinks are desirable in a particular case, but which are not essential to give effect to his decision, are properly dealt with by means of a recommendation.

Amendment No. 33 seeks to blur this distinction. It would give an adjudicator the power to make directions which go well beyond what is required to give effect to the decision to allow an appeal. The Government cannot therefore accept the amendment. We are, however, partly sympathetic to the thinking behind it. I shall run through each of the matters dealt with by Amendment No. 33 in order.

I appreciate the intention behind limb (a) of the amendment. If the successful appellant was a national of a country for which a visa requirement was in force, a carrier would be liable to a penalty under carriers' liability legislation if it brought the applicant to the United Kingdom without some form of waiver. We have made it absolutely clear that successful appellants will be allowed to return and if necessary a visa waiver would be issued. The adjudicator could require this under Section 19. In practice, it will often be possible for the applicant to return to the United Kingdom without such assistance; for example, if he is a visa national. I am sure that that will come as a relief to my noble friend, who is no longer in his seat.

However, it would not be appropriate to issue an entry clearance to a successful appellant, as the amendment envisages. The holder of an entry clearance would normally be granted leave to enter, but a successful appellant who returned to the United Kingdom would not be granted leave to enter unless he qualified under the immigration rules. We would expect him to lodge a fresh asylum claim at the port of entry when he arrived there. He would normally then be granted temporary admission while his asylum claim was considered.

The second limb of the amendment is concerned with the issue of travel documents to a successful appellant. As I have just indicated, we will issue a travel document where necessary and the adjudicator will have powers to issue a direction to this effect.

Paragraph (c) of the amendment provides for a direction requiring the Secretary of State to arrange the successful appellant's passage back to the United Kingdom and to bear the costs. In the great majority of cases, it should be possible for the individual concerned to make his own way back to the United Kingdom. We accept that there might be wholly exceptional cases where an adjudicator believed that a successful appellant had no funds and no means of

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returning to the United Kingdom. If so, the adjudicator could direct the Secretary of State under Section 19 of the 1971 Act to make the necessary arrangements, including the financial arrangements, which were required to give full effect to his decision to allow the appeal. No further legislative provision is required to clarify the point.

I cannot, however, accept that it would ever be appropriate for an adjudicator to direct that no further certificate under Section 2 should be issued in respect of a particular appellant. The adjudicator would not be able to give such a direction under the Bill as drafted and we do not favour an amendment to enable him to do so. The fact that an adjudicator has found a particular country to be unsafe for the applicant has no bearing on whether there is a different safe third country to which that applicant could be sent.

For example, an adjudicator might find that Italy was not safe for a particular applicant. The appellant would be allowed to return to the United Kingdom. This would give full effect to the adjudicator's determination. It is then for the Secretary of State to decide how to deal with the applicant's asylum claim. And it might then become apparent that the applicant was clearly admissible in the Netherlands, for instance, because he had a valid residence permit. In these circumstances, it might well be appropriate to issue a further certificate under Section 2.

The final limb of the amendment would state that an adjudicator could properly direct the Secretary of State to use his best endeavours to find the successful appellant and invite him to return to the United Kingdom. I cannot accept that such steps would be either necessary or practicable in order to give effect to an allowed appeal. The onus must be on the successful appellant to keep in touch with the authorities in this country. It would be extraordinary and unprecedented to impose such an open-ended and unacceptable obligation on the Secretary of State. It has always been the position in immigration cases that the onus is on the successful applicant to take advantage of the decision or determination in his favour.

I know that the noble Lord is not intending to press this matter and that it was for the purpose of clarification. I hope that my response has been helpful in that respect.

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