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Lord Filkin: In the circumstances suggested by the noble Lord, a person whose indefinite leave to remain had been revoked would have to apply to the Home Office for permission, and the Home Secretary would have to consider the circumstances. There would be an obligation on the Home Secretary to respond within a reasonable time.

I have already spoken about the education of the children in response to the question from the noble Lord, Lord Hylton. They would still be entitled to education and state benefits.

Lord Kingsland: I thank the Minister for his careful reply. I will, of course, read it in Hansard before deciding where to go next with the amendments.

I shall probe a little further on one matter. In our discussion of Amendment No. 186, in response to my question about the effect on the immigration status of individuals covered by subsection (1), the Minister said that, in practice, the indefinite leave to enter or remain would be replaced by a series of shorter, fixed-term permissions.

How would that affect the immigration status of those individuals? At some future date, the Government might change the rules over the circumstances in which someone can be deported. If they did, the individual would, I suppose, be legally susceptible to deportation, when the short-term renewed period came to an end. Is that what the Government have in mind, in switching from indefinite leave to a series of shorter periods of leave?

Lord Hylton: Could the Minister include in his reply an explanation of the effect of the change on the person's ability to travel—for example, for a brief holiday in France or Belgium? It is part of a wider question about travel documents for those who do not have refugee status but who have exceptional needs of one kind or another.

Lord Filkin: The noble Lord, Lord Kingsland, asked about the effect on status. The position is as I sought to explain previously. Someone whose indefinite leave has been revoked and replaced with, for example, a leave for six months will have legal status to occupy within that period of six months.

The noble Lord's second conjecture is right. I gave several reasons, one of which was that if, at the end of the short period of leave, the Government considered that it was possible and compliant with ECHR to return the person to the country from which they came, a deportation order would be served.

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The noble Lord, Lord Hylton, asked what was the travel status of people with ILR or short-term periods of temporary leave to remain. I do not know the answer to that and will write to him.

Lord Kingsland: I thank the Minister for his careful reply and shall spend a substantial portion of my summer addressing it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin moved Amendment No. 187:

    Page 36, line 13, at end insert "the person"

The noble Lord said: This group of amendments will ensure that it is absolutely clear that the standard of proof required to revoke leave on the grounds that leave was obtained by deception is exactly the same as the high standard required to remove on those grounds. I should be happy to speak in more detail if the Committee would wish it. I beg to move.

On Question, amendment agreed to.

Lord Filkin moved Amendments Nos. 188 and 189:

    Page 36, line 14, leave out "the person"

    Page 36, line 15, leave out "the Secretary of State thinks that the person"

On Question, amendments agreed to.

[Amendment No. 189A not moved.]

Lord Filkin moved Amendments Nos. 190 to 193:

    Page 36, line 18, leave out "the Secretary of State thinks"

    Page 36, line 19, leave out "that"

    Page 36, line 20, leave out "that"

    Page 36, line 21, leave out "that"

On Question, amendments agreed to.

[Amendments Nos. 193A to 194C not moved.]

Clause 65, as amended, agreed to.

Clause 66 [No removal while claim for asylum pending]:

Lord Avebury moved Amendment No. 194D:

    Page 37, line 18, after "Convention" insert "or Article 3 of the European Convention of Human Rights"

The noble Lord said: The amendments deal with Clauses 66 and 67, which refer to the removal of a person while his claim for asylum, or his appeal against refusal of asylum, is pending. The Committee will be pleased to hear that I can explain them briefly.

Amendment No. 194D seeks to add those who are asking for protection under Article 3 of the ECHR, which relates to protection from torture, to those protected from removal pending the determination of their claim. In other parts of the Bill, that is accepted as part of the definition of "refugee" and we believe that it should be inserted at this point also.

As regards Amendment No. 194E, while Clause 66 supposedly provides safeguards that no action to remove will be taken while a claim is pending, subsection (4) allows the Secretary of State to take preparatory action for the person's removal by giving directions, which presumably are not enforceable until

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the claim is determined but which are seriously prejudicial to the claim. As my noble friend Lord Russell said in respect of an earlier amendment, it is a case of sentence first, verdict afterwards.

Amendment No. 194F seeks to clarify what the Secretary of State can do pending the application by establishing as far as he can the meaning of the phrase,

    "other interim or preparatory action".

It precludes in particular forcing applicants to apply for travel documents from their country of origin before their claim is finally determined.

Amendment No. 194G relates to Clause 67. While Clause 66 deals with a person whose claim for asylum is pending, Clause 67 contains the equivalent provisions relating to a person awaiting an appeal. It begins by stating that the Secretary of State is not to remove him or require him to leave, but goes on to confer a power on the Secretary of State to give directions for his removal—that is, to make a deportation order against him—and to take,

    "any other interim or preparatory action"

against him presumably in connection with the removal or deportation order, although the clause does not say that in so many words. Again, we object to these powers which would prejudge the outcome of an appeal and may seriously prejudice the appellant's case.

I turn to Amendment No. 194GA. Existing provisions protect applicants from removal pending the determination of their appeals. The amendment seeks to clarify what the Secretary of State can do pending the determination of appeals by establishing again the meaning of the phrase,

    "other interim or preparatory action".

As in the previous clause, it precludes in particular forcing applicants to apply for travel documents from their country of origin before their cases are finally determined.

In reference to Article 3 of the European Convention of Human Rights, the Minister in another place stated:

    "Under section 6 of the Human Rights Act 1998, it would be unlawful for the IND to act in breach of a person's human rights. The amendment would not make that any more unlawful, and is therefore unnecessary".—[Official Report, Commons Standing Committee E, 14/5/02; col. 275.]

We accept that if any interim or preparatory action were taken contrary to the ECHR, it would already be unlawful, but this is not what the amendment asks for. We seek to ensure that the Secretary of State does not have the power to take any action that may prejudice the safety of a person who has made an appeal either under the convention or under Article 3 of the ECHR. I beg to move.

Earl Russell: These are necessary amendments. While my noble friend was speaking I looked carefully at Clause 67(3). These are exactly the circumstances that led to the death of Mary Queen of Scots. The Queen signed the warrant for Mary's execution and said afterwards that she had no intention that it should be carried out; it was simply a preparatory action. The

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warrant was then dispatched and, in the words of the council minutes, it was resolved not to tell Her Majesty until the "execution be overpassed".

The Queen blew her top and was furious. She did everything to the then Cecil who had sent off the warrant except sack him. From that day to this, we have been arguing about whether what happened was what Queen Elizabeth intended. The Bill is so drafted as to invite a recurrence of that situation and I do not think that that is a pleasant position for any administrator.

9.45 p.m.

Lord Bassam of Brighton: I hesitate to respond to the noble Earl on his history lesson about Mary Queen of Scots; rather I shall stick to the plot.

All the amendments in this group repeat amendments tabled in Committee in another place. I hope that I shall be as persuasive as my honourable friend the Member for Doncaster Central was on that occasion. The Government's position has not changed.

So far as concerns the first of the amendments, Amendment No. 194D, I recognise that the consideration of asylum applications and of claims that removal would be contrary to Article 3 of the ECHR raise similar issues. However, the two are not always synonymous. We would not seek to remove anyone if to do so would result in a breach of our obligations under Article 3 of the ECHR because we take those obligations very seriously. But there is a difference between that and an asylum applicant.

Someone applying for asylum is saying in effect, "I am a refugee as defined in the 1951 convention". If that contention is accepted, certain things flow from it. In cases where Article 3 applies, there is a more circular definition. A person who cannot be removed because that would be contrary to Article 3 of the ECHR is a person who cannot be removed because to do so would be contrary to Article 3 of the ECHR. It becomes an issue only when removal is contemplated, whereas a refugee is a refugee whether or not removal is being considered.

The immigration rules recognise the positive possibility of someone applying for asylum. They do not contemplate anyone applying to be recognised as a person at risk of treatment breaching Article 3 if they are removed. It simply envisages that where this is the case, removal will not be pursued. Unlike a substantial proportion of asylum applications, the Article 3 "claim" does not arise until removal is actually in prospect.

As I have said, in deciding whether or not to remove someone from the UK we do, of course, have regard to our obligations under the ECHR. But it is unnecessary to make explicit reference to this in this clause. Section 6 of the Human Rights Act means that it would be unlawful for IND to act in breach of a person's human rights. The amendment proposed would not make it any more unlawful and for that reason is unnecessary.

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Turning to the other amendments in the group, Amendment No. 194E seeks to delete subsection (4), while Amendment No. 194F seeks to limit what is permissible by way of "other interim or preparatory action". As the phrase "other interim or preparatory action" appears only in subsection (4), and is only possible because subsection (4) permits it, I assume that these amendments are intended as alternatives.

Amendment No. 194E, which, as I have said, seeks to delete subsection (4), would restore the position which existed under Section 6 of the Asylum and Immigration Appeals Act 1993, at least until the new appeals provisions in Part 5 come into force, and would seriously impede the processing of asylum applications.

Section 6 was replaced because it was an obstacle to the processing of applications. Put most simply, if an illegal entrant applied for asylum and the application was refused and the decision was sent by post, it was not possible to notify the applicant of his right to appeal because it is the setting of removal directions which trigger the appeal. Under the old Section 6 of the Act, and under Amendment No. 194E were it to be approved, it would be necessary to wait until the applicant had received the notification of the outcome of the asylum application before removal directions could be given. This is unnecessarily cumbersome. Parliament accepted in 1999 that it made more sense to be able to send the two directions in the same envelope. I do not understand why the noble Lord now wishes to revert to the pre-1999 position.

Similarly, in a deportation case, if the asylum application is refused a deportation order has to be made in order to trigger the appeal to the adjudicator. Apart from the sheer inefficiency of having to send two letters to the same person two or three days apart, imagine the feelings of the applicant who receives a letter saying his application for asylum has been refused but which says nothing about how a challenge can be made to that decision.

As I have said, the position on appeals will change under our proposals in Part 5 and removal directions will no longer be the event which triggers the appeal. But, apart from the possibility that we may wish to commence this clause in advance of Part 5, where it is possible to do so, we would still wish to set removal directions at the same time as the applicant is notified of the decision to effect removal.

Amendment No. 194F takes a rather different approach to subsection (4) and seeks to limit its effect rather than abolish it altogether. I should make it clear that the Government fully accept the need to safeguard the position of those who claim they are in danger of persecution in their country of origin. However, we cannot accept that it would never be appropriate to make inquiries of the authorities in the country concerned where these can be done—and I stress this—in a way that does not put the applicant or his family at risk.

For example, where someone has submitted a birth certificate as evidence of identity, we may wish to confirm whether or not it is genuine. Similarly, asylum

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applicants from the Indian sub-continent sometimes submit what are said to be warrants for their arrest. These can be checked without disclosing the reasons for checking. I have to advise the Committee that quite often we discover that the documents submitted are false; they are not genuine. We accept the need to be discreet but cannot accept that we can never make inquiries of the authorities in the country concerned.

Separately, I can see no reason why an applicant should not be asked to complete a travel document application provided that it is made clear that this is done as a matter of routine and will in no way affect the outcome of his application. It is far more straightforward to obtain the necessary information at an early stage in the process. If the applicant is subsequently given leave to remain, the application form can be destroyed.

Finally, I should like to deal briefly with Amendments Nos. 194G and 194GA. Like Amendments Nos. 194E and 194F, these form a pair. Amendment No. 194G would make a similar amendment to Clause 67 to the one made to Clause 66 by Amendment No. 194E, and Amendment No. 194GA makes the corresponding alternative option offered by Amendment No. 194E. In each case, the first deletes a subsection, and the second seeks to limit the action permissible under that subsection. But whereas the first pair apply to asylum applications, Amendments Nos. 194G and 194GA would apply to any appeals, not just to asylum appeals.

Provided that the person concerned is not removed, which is the effect of Clause 67 as presently drafted, there is no good reason why preparatory measures should not be taken. Indeed, if this reduces delays at a later stage, it seems reasonable to do so. There is no reason why everything should be put on hold the moment an appeal is lodged and resumed only when the appeal is dismissed.

Equally, there seems no reason to limit the nature of the interim or preparatory action permitted in the way proposed. My objections to Amendment No. 194E apply equally to this amendment; but just as this amendment goes wider than just asylum appeals, so my objections are also broader. Clearly, we would not take any action which we believed might prejudice the safety of any appellant.

I do not accept either that preparatory steps to document someone whose application for asylum has been considered and refused should be suspended pending the outcome of any appeal.

I have given a long response—but, I hope, a full one which explains plainly our intention in regard to this part of the legislation and why we cannot accept these amendments.

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