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Lord Bassam of Brighton: I have been advised that that is the case.

On Question, amendment agreed to.

Lord Thomas of Gresford moved Amendment No. 195AA:

"(h) that the appellant ought to be removed (if at all) to a country specified by him which is different from the country to which it is proposed to remove him in consequence of the immigration decision;
(i) that a person who claims that he ought to be removed to a country other than one he has objected to on an appeal under paragraph (h) must produce evidence, if he is not a national or citizen of that other country, that that country will admit him."

The noble Lord said: The amendment seeks to preserve the right of appeal against a proposed destination that is specified in removal directions. At Report stage in the other place, the Government amended the Bill to remove this existing right of appeal. No good reason seems to have been given for removing it. Our amendment reflects so far as possible the working of a similar appeal right under Sections 67 and 68 of the Immigration and Asylum Act 1999. I am informed that that right of appeal has not been used by very many appellants. Many representatives will not have had any experience of such an appeal.

As the Minister has no doubt appreciated, paragraph (i) is really not a ground of appeal; it is a requirement that,

    "a person who claims that he ought to be removed to a country other than one he has objected to . . . must produce evidence . . . that that country will admit him".

That is really a condition of the exercise of the right of appeal which we propose in paragraph (h). If it is possible for a person to use that particular right, it may be of great importance to him. We await the Minister's explanation of why the law has been amended in this way. I beg to move.

Lord Avebury: There was such a right of appeal in the 1999 Act. As my noble friend has just said, it was

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removed only at a very late stage in the proceedings in another place. That was done without any discussion at all. The Committee has a responsibility to go into the reasons why the Government suddenly decided to revoke that right which has been on the statute book since 1999 and apparently worked perfectly satisfactorily, as my noble friend said. In the small number of cases that are involved it may be of enormous importance to the future of the applicant.

I refer to an appeal against destination by a citizen of Sierra Leone who challenged a decision to send him there because he had a spouse in Canada whom he wished to join. Surely that person had every reason for an appeal against destination for reasons of family unity and the fact that he might stand a good chance of success.

It seems to me that when things happen at late stages without discussion in another place and they come before the Committee at 25 minutes to midnight, there is serious concern about the whole of the parliamentary process. I have already said on an earlier occasion that the noble Lord, Lord Filkin, can easily rebut me by saying that these matters have been agreed through the usual channels, but it seems to me disgraceful that at this hour of the night we should be discussing the withdrawal of a right which people have enjoyed when no debate whatsoever on the matter occurred in another place. I hope that the noble Lord will give serious consideration to my noble friend's amendment.

Lord Filkin: I hope that there is a general feeling that we have not rushed through matters in Committee—we should not do so—and that we are giving proper attention to the amendments. I accept the challenge of the noble Lords, Lord Thomas and Lord Avebury, to explain why the change has been made. There was debate in another place about a requirement that we had added for the purposes of this Bill; namely, that the evidence that an alternative country would accept a person on removal from the United Kingdom should be produced before an appeal could be lodged. Our rationale for that was that if the evidence was available, in all likelihood we should be happy to send the person to his alternative destination. If no good evidence is available, it seems to us that there is nothing to convince an adjudicator that entry to the alternative country is possible, let alone desirable in the appellant's case. Therefore, after reflection, it seemed to us to be a redundant provision. I shall try to express that more clearly.

If we reach a judgment that a person does not have a valid asylum claim and that exceptional leave to remain or indefinite leave to remain is not appropriate, after the person has exercised their proper, appropriate and sometimes considerable rights of appeal, there will come a point at which the state will ask them to leave and, if they do not do so, will take action to remove them. But if at that point in time the person says that he or she wants to go to country Y rather than to country X, and they are able to do so, we would have absolutely no reason whatsoever for wishing to frustrate that. They would be at liberty to do so and we would do whatever

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was appropriate to permit that. However, if they said that they wanted to go to country Y, and they did not appear to us to have any valid entry ability to go to that country, and after a process of consideration and appeal it was considered that return to country X was safe, they would have to return to country X and, in time, make whatever applications they wanted to from their original country to go to the alternative country of preference.

I cannot see that that is anything other than reasonable and appropriate. If people can move elsewhere, we should be foolish and wrong not to support them in doing so. However, we cannot have a situation where a person spends time at public expense seeking to explore other places where he can go when the asylum system and appeals have determined that it is safe for him to return to his country of origin.

There is no need for the amendment because we will not seek to frustrate the transmission of people to countries to which they want to go, if they are able to do so. If it is impossible for a person to reach a country, there is no point or need for an appeal.

Lord Thomas of Gresford: I welcome the assurance that the Government will not seek to frustrate an asylum seeker's desire to go to another country if he or she can establish an entitlement to go there. My only reservation is that going to another country may not be immediately open to an individual at the time of applying but circumstances may change. In the course of proceedings, an opportunity may arise for an individual awaiting removal. In such circumstances, it would be appropriate to provide the right of appeal to an adjudicator against a removal direction to country X and argue that he should go to country Y.

Lord Filkin: Such a right of appeal would give the person time to open up an alternative route of exit, which does not seem reasonable.

Lord Thomas of Gresford: I beg to differ but will not elaborate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72 agreed to.

Clause 73 [Matters to be considered]:

Lord Filkin moved Amendments Nos. 195B to 195D:

    Page 41, line 11, leave out from "70(1)," to end of line 13.

    Page 41, line 17, leave out from "against," to end of line 18.

    Page 41, line 21, leave out from "commenced," to end of line 23.

On Question, amendments agreed to.

Lord Kingsland moved Amendment No. 196:

    Page 41, line 28, leave out subsection (5).

The Deputy Chairman of Committees (Lord Burnham): If this amendment is agreed, I cannot call Amendment No. 196A.

Lord Kingsland: This amendment, which is intended to delete subsection (5), seeks to probe the reason for allowing the adjudicator to consider evidence that

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arises after the time of the decision in subsection (4) but limits him under subsection (5) to evidence available to the decision-maker in cases of refusal of entry clearance or refusal of certificate of right of abode.

Government Amendment No. 196A appears to mitigate some of the potentially adverse affects of subsection (5) by changing,

    "evidence which was available to the person who took the decision to refuse",


    "the circumstances appertaining at the time of the decision to refuse".

That would deal with circumstances where some relevant evidence was not available to the decision-maker.

Why should an adjudicator be permitted to consider what weight, if any, to give post-decision evidence in an immigration matter where the appellant is in the United Kingdom but not be allowed to consider the same range of evidence when the appellant is overseas? I beg to move.

Lord Filkin: Amendment No. 196 would mean that appeals against overseas decisions would be heard on the same evidential basis as in-country appeals—that is, considering matters arising after the decision. To get rid of the differentiation between in-country and overseas appeals would ignore the conceptual difference between them. In-country appeals are one-stop appeals in which all issues affecting a potential removal are considered at one point in time. Such appeals look forward to the future consequences of a decision and can cover a variety of strands put forward during the course of an application—often in response to a requirement to state the full case for staying. If a removal would breach our international obligations because of matters arising since the decision was made, it is clearly beneficial to establish that during the course of the appeal against the decision that leads to that removal.

People applying for entry clearance and certificates of entitlement, however, are not facing removal. They are not in a one-stop system, they are under no obligation to state anything else in addition to their basic application and they can re-apply and appeal against any refusal without fear of certification. If they want to put forward a different basis for coming here or to present new evidence, the right course is to approach the entry clearance officer abroad.

Under the 1999 Act the adjudicator has to decide the case on the basis of the circumstances applying at the time he hears the case if those circumstances relate to an asylum or Article 3 human rights matter. Other matters are to be decided according to the circumstances applying at the time of the decision. This was based on case law—that is, the case of Ravichandran—the reason being that in asylum cases the breach of the convention being claimed can be taking place only in the future. Section 73 extends the principle so that nearly all in-country appeals are dealt with on the "time of hearing" basis. That has advantages for "one stop", in that updated

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circumstances can be considered without requiring a new decision or appeal—the system calls for a comprehensive and contemporaneous review of the case by the independent adjudicator.

Appeals against decisions taken abroad do not work the same way. These are not "one-stop" appeals. There is no question of removal and there is no penalty for making a further application to the entry clearance officer if circumstances change. New circumstances are also much easier to investigate in the country of origin. A hearing in the United Kingdom, some months after the original decision was taken, would often need an adjournment so that the post abroad could consider the fresh evidence.

Applicants overseas are given every opportunity to put relevant information before the entry clearance officer. If their application is refused and their circumstances then change, it is better that they approach the officer direct. If they qualify to come here as a result of the new circumstances, they should and will get their hearing and clearance. If they do not, they can make another appeal. That has been the way in which such cases have worked for some 30 years and it is a practical way of proceeding.

11.45 p.m.

Earl Russell: I believe that I may have misheard the Minister. I heard him say that new circumstances are much easier to investigate in the country of origin. Was that a mishear? I should be very glad to hear that it was.

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