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Lord Clinton-Davis: I have cited other instances. Where does my noble and learned friend draw a distinction between the cases that I cited specifically, where there is no such requirement--I refer to the Inland Revenue, the Child Support Agency and the DSS--and this one?

Lord Falconer of Thoroton: The noble Lord has skilfully changed his question at this point from, "Do other cases exist?" to, "Why in this case and not in others?" In this case, people are exercising their right of appeal to be allowed into this country. One should be

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entitled to challenge the executive action. If one wins, one gets one's fees refunded; if one does not win, why should the state rather than oneself pay for the wrongful challenge?

The definition of family visitors has also been raised. As the noble Lord, Lord Dholakia, rightly pointed out, that is to be prescribed. It would be counter-productive to provide a definition in the Bill. The fact that the definition is not included in the Bill is useful because it will ensure that any definition may be modified easily in the future. Such a definition is likely to include persons related by blood, marriage, relevant adoption process or long-term heterosexual common law or homosexual relationships. I hope that that helps the noble Lord in relation to what is likely to happen. I invite the noble Lord to withdraw his amendment.

11.30 p.m.

Lord Clinton-Davis: I am afraid that I am a little unpersuaded by my noble and learned friend the Minister, because, as I said in my short remarks, the examples that I cited were relevant. Those bodies also make administrative decisions, so why should a disparity be drawn between this example and those that I mentioned--the Department of Social Security, the Inland Revenue, the Child Support Agency and many others--which have no requirement for pre-payment of fees? I worry that that requirement will be a complete bar to the exercise of this right.

Lord Dholakia: I am grateful to the Minister for the explanation he has given. The problem arises if one does not clearly state what "family visitor" means. I am grateful that the Secretary of State would interpret it as liberally as possible, but the Minister probably knows of previous Home Secretaries who gave the term a limited meaning. In the hands of some of those Home Secretaries, a definition could be counter-productive.

I shall read the report of the debate in Hansard tomorrow and, if I am not satisfied, I may raise the subject again on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 111B not moved.]

Clause 50 agreed to.

Clauses 51 and 52 agreed to.

Clause 53 [Deportation orders]:

Lord Falconer of Thoroton moved Amendment No. 111C:

Page 36, line 5, after ("Act") insert ("as a result of his liability to deportation under section 3(5) of that Act").

On Question, amendment agreed to.

Clause 53, as amended, agreed to.

Clause 54 agreed to.

Clause 55 [Acts made unlawful by section 6(1) of the Human Rights Act 1998]:

[Amendment No. 112 not moved.]

Clause 55 agreed to.

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Clause 56 [Validity of directions for removal]:

Lord Dholakia moved Amendment No. 112A:

Page 37, line 38, leave out subsection (2) and insert--
("(2) A person may appeal to an adjudicator against the directions--
(a) if subsection (1)(a) or (1)(c) applies to him, on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given; or
(b) if subsection (1)(b) applies to him, on any of the grounds put forward by him pursuant to section 66, provided that he has not already exercised any right of appeal which he may have had under this or any other section in Part IV.").

The noble Lord said: There are some welcome provisions in the Bill that establish rights of appeal for certain categories of people, but equally, other provisions are, to an extent, detrimental. The purposes of the amendment are, first, to allow those who are being removed for a breach of conditions, usually overstaying, to appeal to an adjudicator on the basis that the full circumstances of the case be considered and to ensure that the Secretary of State has exercised his discretion properly and acted in accordance with the law.

The second purpose is to bring the appellants into the one-stop appeals procedure but to ensure that they have only one opportunity to appeal, and to allow them to exercise that right within the United Kingdom. It would also give the appellate authority the jurisdiction to consider such appeals. It would retain the distinction between illegal entrants and those who breach the conditions of their stay, and would retain the speedy removal of those who have no entitlement to remain or who enter using deception.

The amendment would also provide a framework within with such appeals could be decided and would give clear guidelines on the factors to be considered in such appeals and on how discretion should be exercised. It would also avoid applicants arbitrarily raising spurious and ill founded rights under the Human Rights Act 1998 or asylum legislation, but would allow them an opportunity to demonstrate other strong compassionate reasons militating against their removal.

Amendments Nos. 112B, 118A and 120A are grouped with this amendment. The distinction in the Bill between those who are in the United Kingdom lawfully and those who overstay or break the conditions of their stay is fundamentally misconceived. The blanket denial of a right of appeal to the latter group, without any opportunity for a review of their circumstances, including their reasons for overstaying, can only lead to the greatest hardship. They often have stronger ties to the United Kingdom than those who have been here lawfully but only for a short while who automatically have a review of their circumstances under the one-stop appeal procedure in Clause 55, as do illegal entrants who raise appeals under Clause 47 or Clause 51.

Overstayers would be brought under the one-stop procedure, giving them an opportunity to air all the compassionate factors in their case, rather than just the asylum and human right issues, which they can raise separately under Clauses 47 or 51. Those would combine all the issues in a single one-stop appeal before removal from the United Kingdom and would prevent

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multiple appeals by them under Clauses 47 or 51. They would not be able to appeal again if they had already had a one-stop appeal.

The deportation appeals under the current regime do not unduly clog the system. Evidence to the Special Standing Committee from the chief adjudicator reinforced the unanimous view of practitioners that any benefit in terms of reducing the backlog would be negligible compared with the harm caused to unwitting overstayers who may have strong compassionate reasons for wishing to stay in the United Kingdom. I beg to move.

Lord Falconer of Thoroton: I am grateful to the noble Lord, Lord Dholakia, for his explanation of the purpose of these amendments. I understand his general position although I cannot agree with it. Perhaps I may repeat the Government's position in relation to overstayers which is different from that held by the noble Lord.

People who overstay their leave to enter or remain are here without authority, as an illegal entrant is here without authority. An illegal entrant does not obtain leave to enter. An overstayer obtains leave but fails to abide by its conditions. We see no reason why illegal entrants and overstayers should be treated differently, which is the result of the amendment in the name of the noble Lord, Lord Dholakia.

Clause 8 in its present form does not mean that people will be removed automatically. As my noble friend Lord Williams said earlier, we shall consider the circumstances of an individual before removal under Clause 8, as we do now for deportation and as we do before removing illegal entrants.

It follows from that general position that the Government also consider that the existing rights of appeal relating to deportation should not, in part or in whole, be preserved and applied to the new procedures in the Bill. But as the Home Secretary has said on many occasions, we are wholly committed to meeting our international commitments to refugees and the protection of human rights. People claiming asylum or that a decision made under the immigration Acts breached their human rights will have an in-country right of appeal under Clauses 59 or 55 even if they made their claim when they were an overstayer or illegal entrant.

I turn specifically to the amendments in the name of the noble Lord, Lord Dholakia. Amendment No. 112A would provide a right of appeal to a person subject to removal under Clause 8 who is not an illegal entrant or a crew member. It is, I believe, specifically targeted to benefit overstayers. Amendment No. 112B would ensure that the right of appeal against removal would be an in-country right of appeal along with the in-country right of appeal that Clause 56 already provides for in accordance with Clauses 55 and 59(5)--human rights and asylum claims.

Amendments Nos. 118A and 120A would apply the one-stop procedure to the right of appeal provided for

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by the first two amendments. Taken together, the amendments undermine the purpose of Clause 8 and the principle to which the Government are committed that only persons who apply to remain while they are legally present should have an in-country right of appeal against an adverse decision, the only exception being asylum and human rights claims.

The amendments also undermine the purpose of Clause 7 which the Government introduced into the Bill after listening to the strongly-held views of persons inside and outside Parliament. That is because existing overstayers would have no incentive to come forward under the regularisation period provided in Clause 7 if, by means of these amendments, a right of appeal was otherwise indefinitely preserved.

I believe that the amendments are also based on a misunderstanding of the present appeal rights relating to deportation and the way that administrative removal under Clause 8 will operate in comparison to the deportation process. In the light of the assurances I have given that people will not be removed under Clause 8 unless all the circumstances of their individual case have been considered--the undertaking made in another place and which I repeat here today--and that the immigration rules will include a requirement to that effect, I hope that the noble Lord will agree to withdraw the amendment.

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