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Lord Cope of Berkeley moved Amendment No. 9:

Page 3, leave out lines 32 to 37.

The noble Lord said: This is, essentially, a probing amendment. It deals with Clause 3 of the Bill which inserts a new Section 3C into the 197l Act. The new

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section relates to someone who has had limited leave to enter or remain in the United Kingdom but who, before his permission expires, applies for it to be varied--presumably by having it extended, as is the case in the vast majority of cases. However, at the time the date is reached no decision has been taken on the application. This is, of course, by no means an unusual circumstance. Many people wait for a long time to obtain a decision from the Home Office. We all wish that did not happen but it does.

My amendment seeks to delete the proposed new Section 3C(3) and (4). These proposed new subsections contain extremely complicated wording. I am not at all sure what the intention of those proposed new subsections is. Is it intended that someone should not be able to seek leave to remain on a different basis, even if his or her circumstances have changed during the period of their permitted residence here? If that is the case, that seems unduly hard as people's circumstances change, particularly over the period of a year or two and they ought to be able to make an application on a different basis if their circumstances change. Further, it is suggested that the measure seeks to ensure that any new application made during the waiting period would not, if refused, attract a right of appeal. I believe that at least in some circumstances a right of appeal would be entirely justified.

The proposed new subsection (4) states that,

    "the variation of an application mentioned in subsection (1)",

is still permitted. I find it difficult to ascertain the difference between a new application and a variation of an application. If a person's circumstances have changed presumably it is only a question of how the application is drafted that determines whether it is a wholly new application on a different basis as opposed to a variation; for example, if it contains details of a subsequent marriage, or children or other change of circumstance other than the mere passage of time. Yet a great deal seems to hinge on the distinction between a new application or a variation of an existing one. As I hope I have made apparent, what I seek is an explanation of what these two proposed new subsections seek to achieve. That will enable us to consider whether we should support them.

These are complicated legal points but they are underpinned by extremely practical consequences for the individuals concerned. They are not just niceties to be discussed in Parliament or in a court of law. They have real effects on the ground in terms of the effects of this legislation and how it is understood by advisers, or by individuals whose whole lives can hinge on decisions that are made under the provisions of these proposed new subsections. I beg to move.

Lord Alton of Liverpool: I support the remarks of the noble Lord, Lord Cope of Berkeley. I seek further clarification on this matter. I believe it would be helpful to all of us if the Minister could mention the number of people who are already seeking continuation of leave pending a decision. That would help us to put the importance of this clause into perspective. In the course of, for example, a year, how many people would normally seek this kind of provision?

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The Minister will know that not only do individuals' circumstances change, but there are changes in the countries which people have left. The deteriorating political circumstances and human rights situations in those countries may well render it unsafe for people to return to those countries even though they may have been relatively safe when asylum in the United Kingdom was first sought. When considering the applications we are discussing, do the Minister and his officials take into account extenuating personal circumstances? If someone's health has radically deteriorated or if family or other pressures have been placed on a person, would those circumstances be taken into account before arriving at a conclusion?

Lord Avebury: I experience the same difficulties as the noble Lord, Lord Cope, in understanding the purport of the clause. I hope that the Minister will explain why the period allowed under rules made under paragraph 3 to Schedule 4 for bringing an appeal is relevant to the case we are discussing. The time during which a person who has limited leave to enter or remain and is to be treated as continuing to have that liberty to leave or remain seems to be a fixed period that could be embodied in this proposed new section rather than dealt with by reference to Schedule 4 to the Bill which covers a completely different point.

What happens when the period that is mentioned expires? Can the Minister give the Committee some idea of what the length of time during which the leave to remain continues is likely to be because one cannot tell that from the wording as it stands? What happens when that comes to an end? Let us suppose that a person enters the country for a period of six months as a visitor and at the end of the fifth month he applies to have that period extended. That is a perfectly normal procedure. One can have a six-month visit extended to 12 months. At the end of five months the person asks for an extension of six months. However, by the end of the first period of his leave to remain the Home Office has not yet replied and therefore his leave to remain is treated as continuing for the period that is mentioned in the proposed new Section 3C(2).

Let us say for the sake of argument that a period of two months is allowed for the appeal under Schedule 4. After seven months the person may still not have had a reply from Lunar House--that is the normal state of affairs as staff there do not reply within two months to any kind of an application and they will probably have lost the file anyway--and his leave is no longer treated as continuing. Presumably it expires and therefore from the end of the seventh month his presence is illegal, notwithstanding the fact that he lodged the application for an extension of stay and he wishes to remain here for 12 months. What does such a person do in those circumstances?

Lord Dholakia: The two proposed new subsections that we are discussing have given rise to much confusion. As I understand the position, if one is

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admitted to this country with a limit on one's stay, one cannot apply to vary that decision. However, if a decision has not been taken in relation to a person's application, I believe that he has the opportunity to apply for a variation of his leave. Am I right in my understanding of the position?

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): I am grateful for the opportunity to try to explain the clause. The points that have been made merit an explanation. If someone has a limited leave to enter and he applies to vary that leave before his leave expires but his case is not dealt with before the leave expires, the proposed new Section 3C(2) ensures that he is treated as being lawfully in the country until the application is determined and he is given the chance to appeal. Therefore his lawful leave is extended until the time for appealing expires. So it is not just until the resolution of stage one, but also to give him an opportunity to appeal.

We do not want that system to be abused, so subsection (3) prevents people, after their first application has been refused, from putting in another application; thereby once again triggering subsection (2); thereby extending the time and starting the whole process again; thereby permitting an applicant to, in effect, stay for ever in this country simply by putting in new applications in the period between the rejection of the first application and the time for appeal expiring.

However, as noble Lords have pointed out, what if circumstances change? What then is the position? That is dealt with by subsection (4). Nothing in subsection (3) prevents the variation of an application made under subsection (1). If circumstances change, that can be reflected in an amendment to the application made by the applicant. The noble Lords, Lord Cope of Berkeley, Lord Avebury and Lord Alton of Liverpool, asked about that.

That scheme ensures that a person can stay while his case is properly heard and gives the right of the appeal; it also ensures that changes of circumstances can be taken into account; and it ensures that the situation is not abused by people making multiple applications simply to take advantage of the fact that as long as an application is made before leave is expired, or it has been extended because an application is being made, the time is simply pushed forward and forward.

The clause effectively incorporates the Immigration (Variation of Leave) Order 1976 into the body of its parent Act. It goes slightly further. While the order likewise prevents a person from remaining indefinitely by virtue of a series of applications, it allows concurrent applications on different bases to attract separate rights of appeal. This Bill allows only one appeal, thereby preventing multiple applications and multiple appeals.

I hope that I have explained the issue clearly enough. I think it meets all the objections that have been made.

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5 p.m.

Lord Alton of Liverpool: I asked in my earlier intervention whether the Minister could give the Committee an estimate of the number of people who seek variations in the course of an average year so that we can get some idea of the scale of the problem.

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