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Lord Bassam of Brighton moved Amendment No. 185:
- Page 35, line 32, at end insert—
The noble Lord said: The amendment concerns subsection (1) of the clause, which creates a new power to give directions for the removal of the family member of a person who is himself being removed as an illegal entrant or following a refusal of leave to enter.
The amendment will allow a person liable to removal under the new power to be detained on the authority of an immigration officer. Clause 62 already provides for him to be detained on the authority of the Secretary of State. The purpose of the new removal power is primarily to enable directions to be given in respect of children born in the United Kingdom to illegal entrants or to couples who spend a lengthy period on temporary admission while their applications for leave to enter are considered and any appeal is dealt with.
We accept that detention is a sensitive matter, and the detention of children particularly so. However, as I said in earlier debates this afternoon, it may be necessary for that to take place in order to secure the safe removal of the family group.
As either an immigration officer or the Secretary of State may give removal directions under the new power inserted by subsection (1) of the clause, we consider it appropriate that either should be able to authorise the detention of those liable to removal under this power. I beg to move.
The Countess of Mar: I draw the Minister's attention to what must be a printing error. The amendment seeks to insert subsection (5) when there is already a subsection (5) on the face of the Bill. Perhaps he will consider renumbering it. We have just discussed subsection (5), which is concerned with posting dates.
Lord Bassam of Brighton: I am happy to ensure that we look at that matter.
On Question, amendment agreed to.
Clause 62, as amended, agreed to.
Clause 65 [Revocation of leave to enter or remain]:
Lord Kingsland moved Amendment No. 186:
The noble Lord said: This amendment, together, I believe, with Amendments Nos. 189A and 193A in the names of the noble Lords, Lord Dholakia and Lord Avebury, seeks to probe the issue of the legal effect of the revocation of a person's indefinite leave to enter or remain under Clause 65.
I recognise that the Government seek to justify the power in subsection (1) in terms of it being used against those who have committed serious criminal offences and who are therefore liable to deportation. But I am sure that the Committee and, indeed, the noble Lord
In the circumstances envisaged by the clause, a person's leave to enter or remain could be revoked but a deportation order could not be made for legal reasons. Perhaps the noble Lord the Minister can tell the Committee what the immigration status of such a person would be. In another place, my honourable friend Mr Malins described it as a "legal limbo". The Minister, the honourable Ms Eagle, did not shed much light on the matter by saying, simply, at col. 269 of the Standing Committee report, that the revocation of indefinite leave to enter or remain would,
If he no longer has leave to enter or remain in the United Kingdom, but no deportation order has been made, on what basis is he present in the United Kingdom? Is he present at the pleasure of the Secretary of State? Will the Minister also comment on the other circumstances in which the power in subsection (1) may be used? The Explanatory Notes refer to "serious criminals"; but the power is drawn wider than that. In another place the Minister referred to "other undesirables". Perhaps the Minister could expand on that definition as well.
Amendment No. 194, also standing in my name and that of my noble friend Lady Anelay, seeks to probe the issue of the circumstances in which the Secretary of State will use the power given by subsection (3) of Clause 65 to revoke the indefinite leave to enter or remain of the dependants of refugees. In the circumstances envisaged by subsection (3), a person granted refugee status may have his indefinite leave removed as a result of availing himself of the protection of another country or of the country from which he sought refuge in the United Kingdom. However, the Secretary of State will also have the power to revoke the indefinite leave to remain of that refugee's dependants who may not have followed the same course of action as the refugee himself, particularly if he has spent a long period of time in this country.
What would be the position if the dependants of a refugee did not wish to avail themselves of the protection of another country, or to return to their country of origin, either for convention reasons or perhaps because of family circumstances or roots put down in the United Kingdom over a number of years? Would the Secretary of State revoke the dependants' leave in all cases? If the dependants feared persecution for conventional reasons, would they have to make asylum claims to avoid being removed from the United Kingdom under the power granted by subsection (7)?
The Deputy Chairman of Committees (Viscount Simon): I have to advise the Committee that if Amendment No. 186 is agreed to, I cannot call Amendments Nos. 187 to 189A due to pre-emption.
Lord Dholakia: I am delighted to support the amendment. It is grouped with Amendments Nos. 189A, 193A, 193B, 194 and 194A to 194C. It deals with the revocation of leave to enter or remain. I have a question to add to that posed by the noble Lord, Lord Kingsland. Would Clause 65 leave a person in limbo? Could it be a violation of Article 3 of the European Convention on Human Rights in that he or she would have no access to social security, work, education and so on?
The purpose of the amendment is to delete the provisions that would permit UK residents who have broken no law to be deprived of the right to continue to live here simply because they were originally granted indefinite leave to remain as refugees but have taken advantage of subsequent changes in circumstances which mean that they no longer require international protection as refugees or that they were originally granted indefinite leave to remain as the dependants of refugees and the head of their family has taken an action over which they may well have had no control.
There is also concern that subsection (3) will discourage refugees with indefinite leave to remain from making exploratory trips to their countries of origin. It does not seem to acknowledge that the process of return takes time and careful consideration for people who originally left their country of origin in a crisis. It will also prevent them making family visits.
The clause does not seem to take account of the fact that many convention refugees are recognised as such because of their fear of persecution by non-state agents of persecution. The problem with the use of the word "protection" in this clause is that it is ambiguous: it could mean actual protection or may just mean "diplomatic" protection. Perhaps the Minister would clarify that point.
The clause also discriminates against people who have exceptional leave to remain in the United Kingdom as that is often stamped in their national passports, but once they have indefinite leave to remain they do not have it revoked if they make a trip home.
We also question the necessity for this subsection because if a person goes to his country of origin and establishes himself there, and if he stays away for more than two years, he will lose his indefinite leave to remain here. Those are matters of concern and I hope that the Minister has an explanation as to why this clause is necessary.
Lord Hylton: We need to be specific about the effects of this clause; for example, will a person who is caught
Lord Avebury: Perhaps I can pursue a question raised by my noble friend Lord Dholakia; that is, the discouragement of persons with indefinite leave to remain from going back to their countries to "sniff the air", so to speak, and decide whether or not it is safe for them to return permanently. I give three illustrations of the principle which are perhaps important at this point in time.
First, I understand that a European Union agreement is in being that there should be an ability to send people back to Sri Lanka in view of the changed conditions and the agreement between the government and the LTTE. Most people sought asylum in the UK on the basis of persecution by the government because of their connections with the Tamil independence movement, or they were Tamils who did not agree with the independence movement and were in fear of persecution by the LTTE.
As I understand it, according to the EU agreement, we shall soon begin sending people back who had indefinite leave to remain on those grounds, unless they have applied for British citizenship, in which case they would be exempt from the provisions of this clause. But that forces people into applying for British citizenship so that they become immune from the deprivation of their right to remain, which power the Secretary of State is taking upon himself in this clause.
The second example is Bahrain, where a certain amount of loosening has taken place of the formerly harsh regime of the Al Khalifas. Security courts have been abolished; political prisoners released and an invitation issued by the young heir to exiles who had been kicked out of the country by his father to come back and play their normal life in the country. I know a number of people who were not fully confident that they could return to Bahrain and take up where they left off, sometimes as long as 20 or 25 years ago. However, they wished to go there and see what the atmosphere was like and find out whether or not it would be safe for them to take up their former occupations and indeed take part in the political and journalistic activities. One friend of mine went back to start a newspaper. It was obviously important for him to know that in doing so he would have the latitude to say what he felt in the newspaper without fear of renewed persecution.
This clause will discourage people who feel that they would like to return from returning to their country of origin. They will not want to take the chance of being permanently deprived of their right to live in this country if it turns out that their position back home is not as favourable as they hoped it would be.
The third example I give the Committee, which may be of immediate importance, is Afghanistan. Many people from Afghanistan have applied for asylum and many have been given indefinite leave to remain. I believe around half the residents in Sangatte originally came from Afghanistan. Presumably it is the policy of the Government to encourage those who have talents and skills to contribute to the new Afghanistan to go back there. But if they wish to test the water, under this clause they would be permanently deprived of any right they had to live in this country.
The effect of the clause therefore could be extremely harmful and I beg the Minister to consider the effects I outlined, not only on people from the three countries I mentioned—I chose those because they are current—but also on the many others that may occur to Members of the Committee.
"(5) In paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry, &c.: detention) for the words "8 to 10" there shall be substituted "8 to 10A"."
Page 36, line 12, leave out subsection (1).
"send a message to individuals that although their removal may not be possible at that time, their presence in the UK is not guaranteed. It will also express official displeasure at their conduct".—[Official Report, Commons Standing Committee E, 14/5/02; col. 269.]
It may well send a message to the individual. But perhaps the noble Lord the Minister will be able to tell the Committee what that message is in terms of the individual's immigration status.
9.15 p.m.
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