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Lord Avebury: My Lords, the noble Baroness referred to the case of the Chinese who were detected at immigration presenting documents purporting that they were of Malaysian or Singaporean nationality. Can the Minister explain that a little further?

If those people were asylum seekers coming from the People's Republic of China, clearly they had good reason for presenting those documents because they would not be able to leave China and come to the United Kingdom as refugees using Chinese passports. As the noble Lord, Lord Bassam, knows well, the problem of false documents has been dealt with extensively on the Floor of the House and in the courts. It has been ruled that the presentation of false documents by an asylum seeker is not a criminal offence and that consideration of it must be deferred until the end of the asylum process. I am mystified, therefore, that the Minister should give that example in support of the Home Office policy on discrimination by the Immigration Service.

Conversely, I can see every argument for a provision such as that suggested by my noble friend because there are instances where the Immigration Service positively discriminates in favour of certain nationalities. For example, it is well known that the ports at entry treat Somali nationals favourably because they know what the situation is in Somalia. There is no proper government and people who belong to the wrong group are at risk of being killed by armed factions. Therefore, great sympathy is applied in consideration of applications for asylum by Somali nationals. More or less all of them are accepted as qualifying for exceptional leave to remain, and I have no quarrel with that when I look at the situation in their country of origin. But if it is necessary to allow that kind of thing to happen explicitly, a provision should be put on the face of the Bill while we have the opportunity.

Lord Cope of Berkeley: My Lords, I too had the opportunity, thanks to the courtesy of the Minister, to see the letter of 26th January to the noble Lord, Lord Lester. On the whole I found it helpful in explaining what the Government were attempting to achieve.

The noble Baroness, Lady Prashar, quoted the example (given in the letter) of Chinese nationals with false documents. I make a distinction--it has been made many times before both in this House and

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elsewhere--between those who, for obvious reasons, are obliged to travel on false documents (or for that matter with no documents) and those who when they arrive attempt to deceive our Immigration Service by presenting false documents. It may be that they do not realise the quality of our Immigration Service or the way in which it works. But that is a different matter from someone escaping from China or some other country where they are being persecuted. To arrive here and attempt to gain entry on false documents needs a lot more explanation. That is why the Home office is concerned, and the Minister indicates concern in his letter, that the Immigration Service should be able to scrutinise entry particulars carefully on arrival. It is not only the Chinese, of course; there will be comparable cases from other parts of the world from time to time.

Lord Bassam of Brighton: My Lords, your Lordships will recall that when the House debated this matter in Committee, I explained the Government's view that the proposed amendment would leave the immigration system without adequate legal protection. I also explained why we considered it necessary to retain the existing proposed exemption for immigration and nationality functions in Clause 1, new Section 19C. The effect of the amendment would be to remove the existing formulation and replace it with a much narrower provision covering special treatment on humanitarian grounds.

I made clear our view that the existing legal safeguards provided in Section 41 of the Race Relations Act 1976 would be insufficient to allow the immigration system, which necessarily involves some discrimination on grounds of nationality or, on occasions, ethnic or national origin, to continue to operate as Parliament intended. The Government's view has been informed and supported by the case law.

Any system of immigration control necessarily involves discrimination on grounds of nationality. I hope that there is now common agreement on the need for an exemption that allows immigration staff and Ministers to discriminate on grounds of nationality where such discrimination is properly authorised or required.

I understand the noble Lord's concerns about the exemption for immigration and nationality functions in relation to discrimination on grounds of ethnic or national origins. Noble Lords will recall that in Committee I undertook that the Government would look again at these issues in detail. It is for that reason that the correspondence referred to was conducted.

We carefully considered whether the exemption in relation to ethnic or national origin is necessary and if so, whether it should be narrowed. As I explained earlier, that was the purpose of our correspondence; that is, to advise Members of our considerations and to try to be helpful. We concluded that the exemption in its current form in Clause 1, new Section 19C, is necessary and that there is no real scope for restricting it further. There is at least one precedent for Parliament permitting distinctions to be made by reference to a person's origin in this context; namely,

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Section 41(3)(a) of the Immigration and Asylum Act 1999 which re-enacts an amendment made to the Immigration (Carriers' Liability) Act 1987 made by the Asylum and Immigration Appeals Act 1993.

As I made clear in Committee, we believe that the exemption is necessary to allow the immigration system to handle asylum applications and cases requiring exceptional treatment on compassionate grounds. The noble Lord made clear his view that the courts would not find that the Home Office had acted unlawfully in cases where differential treatment had been provided to different ethnic or national groups because of the situation in their countries of origin. However, as I also made clear, we simply cannot afford any degree of ambiguity to arise in relation to the immigration and asylum system. We are required in practice to operate policies that are country specific, and to treat applications alike without always considering the individual circumstances of a person falling within the relevant ethnic or national group and who is from the country concerned.

I listened with care and interest to what the noble Baroness, Lady Prashar, had to say in support of the amendment. Although in a historical sense I can understand her concerns about the issue, it has become clear to us during the course of our examination of the situation that it is necessary, on some occasions, for the Immigration Service to differentiate between individuals on the basis of their ethnic or national origins. I shall go through the example I gave in the letter again because it is important to understand it. From time to time, the Immigration Service detects Chinese nationals with falsified documents that misrepresent them as Malaysian or Singaporean nationals of Chinese ethnic origin. As has been said, were this problem to grow significantly, it would be necessary for the Immigration Service to scrutinise with particular care the documents presented by these nationals of Chinese ethnic origin and to interview them. But with 89.1 million passenger arrivals in the United Kingdom during the last financial year, of which 12.2 million were subject to immigration control, even with the best will in the world the Immigration Service does not have the capacity or the resources to interview every Malaysian or Singaporean seeking to enter the country, irrespective of their ethnic origin. An assessment of risk, based on available intelligence, must be made. Moreover, it has to be said that this risk assessment may sometimes have to be based on the ethnic or national origin of passengers. I give way.

5 p.m.

Lord Lester of Herne Hill: My Lords, I am most grateful. I am very worried by the answer and the explanation that has been given. Perhaps I may clarify exactly what we are talking about. If one were dealing with would-be immigrants who were white--that is to say, European in appearance--who came, say, from the Russian Federation, there would be no basis to treat them differently because of their ethnic origin or the kind of grounds mentioned in the letter.

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The Minister is saying that because people look Chinese we must reserve the right to single them out for special treatment on the basis of their appearance--their ethnic characteristics--and the fact that they are not white. We could not do that with anyone who was white because there are no distinguishing ethnic characteristics of that kind. If that is what is being said, does not the Minister realise that that is quite different from singling out people on the basis of their country of origin or their nationality: it goes to the root of what they are and cannot help being because of their ethnicity, their colour or race. Does the Minister recognise that? Am I correctly understanding what is said in the letter and what is being said by him today?

Lord Bassam of Brighton: My Lords, I am trying to explain to the House that, yes, there will be some circumstances where, on the basis of careful intelligence and a risk assessment, we have to make that judgment based on what is perceived as an individual's ethnicity.

Perhaps I may develop the point further. During 1999, the Immigration Service detected more than 5,000 attempts to enter the United Kingdom using forged or counterfeit travel documents or visas. The noble Lord, Lord Avebury, quite understandably referred to the circumstances in which someone might use documents of that sort because he is fearful of the situation in the country from which he originated and this is the best way to effect an escape. However, I urge noble Lords to accept that it is the case that scams are being operated essentially by people who are seeking to come to the United Kingdom because it is an attractive place to live and because it is in their economic interests to come here. These scams are being operated to get round the effect of our immigration legislation. That cannot be acceptable. It is in such extreme circumstances where we suspect that sort of criminality that we feel we need this exemption. That is why we are putting forward this argument.

We do not desire pro-actively to discriminate. But if we do not have the capacity to mount such operations, with a carefully thought-through risk assessment, our system of immigration control will be fundamentally weakened. We do not believe that that is desirable or that that has been Parliament's intention in the past. We do not believe that it accords with legislation that we have recently put on the statute book through the Immigration and Asylum Act 1999.

I believe that the case we have made highlights the very real challenges faced by immigration staff in performing their duties. I ask noble Lords to bear in mind the fact that they are very difficult tasks to fulfil. We take the view that immigration staff need very clear and transparent guidance to ensure that they respect the rights of others. There is no argument about that. The exemption for immigration and nationality functions in Clause 1 will provide Ministers with the framework within which to provide guidance. The latter is very important in this context and I ask noble Lords to reflect on that.

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As far as possible the guidance will be published for Parliament and the public to see in line with the Government's commitment to openness and very much in line with our commitment to ensure that we operate our legislation within a framework that combats racism--whether direct or indirect--in all its forms. We must have immigration procedures and practices that will be thoroughly reviewed to ensure that the only discriminatory activity that is necessary and can be justified is covered by clear guidance, approved by Ministers, and that any discriminatory activity which cannot be justified is eliminated. That must be our policy objective.

I hope that noble Lords will accept my explanation. On that basis, I also hope that the noble Lord will accept that we have considered these issues very carefully and, as a result, he will feel able to withdraw his amendment. We believe that this exemption is very important; we believe in the strength of our case; and we believe that it is right to protect the integrity of our immigration system.

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