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Lord Alton of Liverpool: My Lords, while supporting the points made by the noble Baroness, Lady Williams, and the noble Lord, Lord Avebury, perhaps I may reiterate the point about natural justice. It would be peculiar indeed in this country if someone were charged with a felony before the investigation had been completed. That is the analogy one can draw with the procedure placed before your Lordships' House.

I want to ask the Minister a direct question about the practical effect on someone against whom a removal notice has been served, but who before a decision is reached, decides to return to his country of origin. What will happen if on another occasion he applies to come to this country, or to go to any other country, and is asked, “Has a removal notice ever been lodged against you?"?

Surely, in those circumstances he will have to give the truthful answer, “Yes, it has.". Can the Minister say whether that will lead to a prejudicial decision being taken against a subsequent visit being able to be made either to the United Kingdom or to any other country?

Lord Cope of Berkeley: My Lords, I have considerable sympathy with what the Government are trying to achieve by inserting the new clause. However, it might be helpful if it were a little closer to the Explanatory Notes which were sent to some of us, and was modified so as to make clear that the notice will not be served on the individual concerned except at the same time as, or later than, the notice of the determination of his application for asylum. I believe that in that way we shall overcome all the difficulties that have been expressed during this short debate.

There is no such amendment on the Marshalled List, but no doubt there could be at a later stage.

Lord Williams of Mostyn: My Lords, I shall give careful attention to what the noble Lord, Lord Cope, has said. I cannot give an undertaking, but I shall think about it with some care.

I turn to the problems raised by the noble Baroness, Lady Williams. I understand her concern, but, taking her amendments together, we could never remove anyone who had claimed asylum on arrival or any illegal entrant who had claimed asylum, whether or not that application was refused. The reason, which I tried to indicate clearly, is that removal directions cannot be set until the appeal has been completed. However, the appeal cannot even begin until the removal directions are set. That is the difficulty with Amendments Nos. 14A, 14B and 14C.

Under Section 6, we cannot set removal directions until the applicant has been notified of the outcome of his application. Section 6 does not state “until the claim has been decided". That is why decisions cannot be served at the same time and the wording I am

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requesting would allow removal directions to be set before the applicant has been notified. We shall in every case consider whether the subject is a refugee. If the subject is a refugee, we shall not set removal directions. We do not propose to set removal directions until the asylum case has been considered, but at the moment we cannot do that until the asylum seeker has been told.

The noble Lord, Lord Alton of Liverpool, asked a particular question. If someone is being granted leave to remain as a refugee, he is allowed to stay. Therefore, he will not be abroad seeking to come here and I suggest that in those circumstances the noble Lord's question does not arise.

Lord Alton of Liverpool: My Lords, I am grateful to the Minister for giving way. With respect, that was not the question I put. I asked what would happen if the individual against whom a removal notice had been made in advance of any of these procedures taking place decided to short-circuit the mechanism by returning to his country, because circumstances had changed there, and did not go forward with an appeal in the United Kingdom. If he were subsequently asked whether a removal notice had ever been placed on him, would that prejudice his subsequent request to come here or to enter any other country?

Lord Williams of Mostyn: My Lords, in those circumstances, I do not believe that it could prejudice, in the sense that the noble Lord means--namely, determine adversely--any subsequent decision.

The directions will not be served until there is a decision on the claim. I am sorry that I was wrong in my example; I am sure that it was my misunderstanding. In the circumstances predicated by the noble Lord, there would not have been a decision. If he asks whether a person would be irretrievably damaged or prejudiced by the circumstances he describes, my answer is that as far as I am aware, no.

I ought to research that matter further because I plainly did not understand the question the first time round. I or my noble friend Lord Bassam will write to the noble Lord with an answer as to whether he is right or I have misunderstood him again.

We are trying to get some shape into a situation which everyone agrees is not satisfactory. I shall think about what has been said. If true difficulty still remains, obviously we shall give the matter further attention. For the moment, I invite the noble Baroness not to press Amendments Nos. 14A, 14B and 14C, and urge the House to accept government Amendment No. 14.

5.30 p.m.

Baroness Williams of Crosby: My Lords, I should say right away that if the amendments are defective--they may be--it is partly due, first, to the confusion, which I attempted to explain, between the amendment on the Marshalled List and the explanatory memorandum; and, secondly, because although we read Amendment No. 14 carefully, we simply could

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not square it with the explanatory memorandum. With great respect to the eloquence of the noble and learned Lord, which is very great indeed, we are still unable to do so.

The noble and learned Lord indicated that he would give consideration to the points being made in this short debate, but he also said clearly that he could not give an undertaking. The noble and learned Lord, Lord Williams, agrees that he cannot at the moment answer the subsequent question of the noble Lord, Lord Alton, because it is on a point somewhat different from that which he had in mind; nor has he been able to respond to the point I raised, which is admittedly extremely complicated, about the impact of new Clause 25. I asked whether it would mean that a defence by an asylum seeker against a charge of entering the country with fraudulent documents might in fact be prejudiced by a statement that a deportation or removal order was already outstanding against him, although the claim itself by definition would not have been decided because he would not be in front of a magistrates' court if that had been the case.

Therefore, we fear that Amendment No. 14 carries many more complexities than we at first thought. At first we were happy to welcome it, but the more we thought about it and talked to one another and the more we consulted people with long legal knowledge in the field of immigration law, the more we became concerned. If the noble and learned Lord and his colleagues would be willing to consider tabling a redrafted amendment which met some of our worries and which would also deal with the gap between the explanation note and the clause, we should not press our amendment at the present time.

We would much rather not do so, because we want to work with the Government on this matter and we certainly do not want to string out an endless process of appeal. The Government are aware that we have always said that we support them on speeding up the procedure, and we still do. However, I am afraid that the complexities are such that we dare not allow this amendment to go ahead as it stands, because the Bill will go to another place on the understanding that all the parties have agreed on the matter. With great respect, for the reasons which I hope I have made reasonably clear, we simply cannot leave it like that.

I shall pause. If the noble and learned Lord wants to intervene before I sit down, I am happy not to sit down for the moment. If he feels unable to intervene, I am afraid that we shall have to seek the view of the House, not on the amendments but on the clause itself; that is, on Amendment No. 14.

Lord Williams of Mostyn: My Lords, the noble Baroness has been helpful, as always. I am intervening not to meet what she asks for, but simply to say that I cannot do so. We have thought carefully and come to an appropriate conclusion on this matter. I have said, as always, that my noble friend Lord Bassam and I are perfectly willing to reconsider the matter, but I cannot

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give any guarantee. I believe that we have got it right and I should not want the noble Baroness to be under any misapprehension about what is likely to follow.

Lord Cope of Berkeley: My Lords, I am sorry to interrupt the noble and learned Lord, but is he going to look at the drafting again and particularly at the point I raised?

Lord Williams of Mostyn: Certainly, my Lords, I said that I would, but I believe that the noble Baroness would like me to say either that I shall take the amendment away, or something more positive than that. I shall look at the drafting in the way that I mentioned to the noble Lord, Lord Cope, in response to his helpful intervention. Amendment No. 14 is indeed my baby. I commend it to the House.

Baroness Williams of Crosby: My Lords, I had already indicated, I hope, that for the reasons which I have already explained to the noble and learned Lord, Lord Williams, I intend to seek the opinion of the House on Amendment No. 14, but not to press our amendments. I beg leave to withdraw Amendment No. 14A.

Amendment No. 14A, as an amendment to Amendment No. 14, by leave, withdrawn.

[Amendments Nos. 14B and 14C, as amendments to Amendment No. 14, not moved.]

5.35 p.m.

On Question, Whether the said amendment (No. 14) shall be agreed to?

*Their Lordships divided: Contents, 129; Not-Contents, 47.

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