Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Graham of Edmonton: My Lords, I am grateful to my noble friend the Minister for indicating clearly that perhaps those outside the House may not be fully informed of these various matters. The last thing I want to do is to urge the Minister to dismantle a piece of the legislation as that would cause only further trouble and delay. I hope that when those outside read what the Minister has said they will be satisfied that they have made their point on behalf of a growing number of people who come to this country in a dreadful mental and physical state and that they will feel that the Government are conscious of this problem and are doing their best in this regard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

18 Oct 1999 : Column 913

Lord Falconer of Thoroton moved Amendment No. 70:

Page 116, line 35, leave out from (“appeal") to (“is") in line 38 and insert (“under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim").

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 71:

Page 116, line 44, leave out sub-paragraph (3).

The noble Lord said: My Lords, this amendment proposes to leave out sub-paragraph (3) of paragraph 9 to Schedule 4. The amendment raises issues that are similar to those raised in the debate on Amendments Nos. 29 and 30. I summarise the matter briefly. Article 31 of the refugee convention states that a state cannot impose penalties on refugees because of their illegal entry or presence in the state if they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

It is also clear from the Adimi case that to say that refugees must present themselves without delay does not mean that they must tell the immigration officers when they arrive at the airport, or whatever, that they are seeking asylum. Paragraph 9 to Schedule 4 excludes the right of appeal from an adjudicator to the Immigration Appeal Tribunal in certain circumstances. One of those circumstances dealt with in paragraph 9(3) is that the applicant produced false documents to the immigration officer as valid. By contrast, those who tell the immigration officer that their documents are false and ask at that point for asylum get a right of appeal to the Immigration Appeal Tribunal.

We believe that this distinction is contrary at least to the spirit of Article 31. Of course, it is true that someone whose claim has been turned down by an adjudicator cannot be regarded at that stage as a refugee. But if the possibility of an appeal is still open, he or she would at least potentially be a refugee. The spirit of Article 31 surely requires that there should be no discrimination in the right to seek recognition as a refugee between, on the one hand, those who inform the immigration officer that they are travelling on false documents and immediately ask for asylum and, on the other hand, those who get through immigration control on false documents and then claim asylum without delay.

The Government have recognised that refugees who are illegal entrants should not be convicted of an immigration deception offence if they presented themselves to the authorities without delay and showed good cause for illegal entry. We would object much less to paragraph 9(3) if it was amended to exclude cases where the asylum seekers, having obtained entry on false documents, had presented themselves to the authorities without delay and shown good cause for their illegal entry. The fast-track procedure may be appropriate for someone who illegally enters the United Kingdom, lives here for months or years and claims asylum only when caught, but it is not appropriate for someone who illegally

18 Oct 1999 : Column 914

enters the United Kingdom and within a few days presents himself or herself to the authorities and says at that point, “I claim asylum". I beg to move.

Lord Falconer of Thoroton: My Lords, this amendment would prevent the certification of an asylum or human rights claim on the ground that a person has, when asked to do so, either produced no travel document without reasonable explanation, or has produced an invalid document without admitting that it is invalid. I can well understand the arguments which have been expressed many times before (and again eloquently tonight by the noble Lord, Lord Goodhart) that those fleeing persecution may be unable to obtain proper documents and may be too fearful of authority figures to explain their circumstances on arrival.

I must point out that where a person is required by the carrier to produce a passport before boarding and no longer has it on arrival, we can only regard that as a deliberate attempt to deceive and an action that a genuine claimant would not find necessary. It is a very common method of making it difficult for the authorities to establish a person's true identity and history. If a person attempts to gain entry with a falsified passport or one that does not belong to him, that again is a deliberate attempt to deceive. One would expect a person who wishes to claim asylum here to want to tell us of the circumstances of his flight from persecution, not to attempt to deceive from the start.

I would remind your Lordships that those who claim asylum are given every opportunity to put their case and that the Secretary of State's certificate is open to review by the independent adjudicator. With regret, I am unable to help the noble Lord in this respect.

Lord Goodhart: My Lords, I am afraid that I find that answer distinctly unsatisfactory. Although I can understand the point about those who destroy their entry documents, it seems to me that this is inconsistent with the whole thrust of Article 1, which says that people are not to be penalised because they have entered on false documents.

Obviously at this time of night it is not appropriate to take the matter further. We will consider whether to bring the matter back. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendments Nos. 72 to 74:

Page 117, line 19, leave out (“section 3(5) of that Act") and insert (“section 5(1) of the 1971 Act as a result of his liability to deportation").
Page 117, line 39, leave out from (“under") to (“for") and insert (“--
(a) section 8,
(b) Part I of Schedule 2 to the 1971 Act, or
(c) Schedule 3 to that Act,").

18 Oct 1999 : Column 915

Page 118, line 43, at end insert--
(“(2) That does not prevent--
(a) directions for his removal being given during that period;
(b) a deportation order being made against him during that period.
(3) But no such direction or order is to have effect during that period.").

On Question, amendments agreed to.

The Earl of Sandwich moved Amendment No. 75:

Page 119, line 21, at end insert--
(“(4A) This sub-paragraph applies where the appeal is one to which section 71 or section 72 applies and--
(a) the adjudicator considers that the case is one to which a published concession applies; or
(b) he considers that such compassionate circumstances as may be set out in the immigration rules relating to deportation or removal apply in the case.
(4B) Where sub-paragraph (4A) applies, nothing in sub-paragraph (4) shall prevent an adjudicator allowing an appeal under sub-paragraph (1)(b).
(4C) Where sub-paragraph (4A) applies, the adjudicator may allow the appeal under sub-paragraph (1)(b) notwithstanding that the ground upon which the appeal is allowed did not require to be considered at the time of the decision or action against which the appeal is brought.").

The noble Earl said: My Lords, I dare to move the amendment in this peculiar grouping at this very late hour fortified by the comment of the noble Lord on Amendment No. 63 that legal and other experience is required.

This is a new version of Amendment No. 110A, which I moved at some length in Committee and which was rejected by the Government as too broad. This amendment instead limits the power given to an adjudicator to allow appeals only on grounds which the Secretary of State is already taking into account. It would thus allow an adjudicator to consider published concessions or factors to be considered on a full appeal against deportation.

I am advised that the present wording of the schedule is contrary to the Government's intention to have a one-stop appeal. Others with legal experience and training were to have argued this more cogently than I. The Government will be relieved that the noble and learned Lord, Lord Ackner, is no longer in his place. I am sorry that he is not and that this amendment was not moved earlier.

So much of this discussion is reminding the Government of their own intentions. We need a one-stop appeal which is comprehensive and appropriate, and which would deal with all the additional compassionate grounds and so avoid judicial review. I beg to move.

Lord Cope of Berkeley: My Lords, my name is also attached to the amendment. Amendments Nos. 86 and 89 were originally grouped together. All three amendments have the same underlying purpose, which is to try to reinforce the one-stop approach. It has been put to me that the Bill has drifted away from the Government's intention of having a one-stop adjudication appeals system. In doing so, it not only

18 Oct 1999 : Column 916

makes life more difficult for those concerned with the process but means that judicial review is much more likely. That is not what any of us are seeking. I think all of us in the Chamber agree with the idea of the one-stop appeal process. All three of the amendments are intended to support that process.

1 a.m.

Lord Phillips of Sudbury: My Lords, on behalf of these Benches I should like to support the amendment, because it is important. Earlier it was made clear that policy issues should be taken into account by adjudicators. Furthermore, an adjudicator should be able to substitute his or her discretion for that of the Secretary of State in such appeals. For example, I refer to a letter written to Justice by the Minister of State at the Home Office, Barbara Roche, MP, on 12th August of this year. She confirms that,

    “An adjudicator will be able to substitute his discretion for that of the Secretary of State in appeals involving compassionate factors but only where these are set out in a published concession".

As the noble and learned Lord, Lord Falconer of Thoroton, will know, the concessions are a crucial part of the working of the immigration law. There are all kinds of concessions for children and those who have been living here for a long time. There are four or more key concessions. Clause 70 envisages that additional grounds raised by an appellant in a statement made under Clause 68 can be considered by the adjudicator. An appeal may be allowed by the adjudicator on those grounds. It is therefore inconsistent both with that and with the Government's statements made repeatedly on the right of the adjudicators to exercise discretions that may overturn previous decisions. Further, it is entirely consistent that adjudicators may look at concessions as well as rules.

The amendment is of huge importance and I hope that the Government will see a way to permit it.

Next Section Back to Table of Contents Lords Hansard Home Page