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Baroness Scotland of Asthal: I hear what the noble Earl says, but that is the most appropriate way of describing the criterion that can be found at present. I have given several examples that would fall within that category. In the past, there seems to have been agreement that, for example, Holocaust deniers or members of the Ku Klux Klan, were the sort of people who should not be allowed to come in, if there was specific evidence about them. We accept that the phrase is generic, but I can reassure noble Lords that SIAC will be judicious about how it views its interpretation.
I also agree that there is nothing new about the clauses. They have been in the Immigration Act since 1971, including the reference to reasons of a political nature. SIAC will examine evidence of whether deportation is justified on that ground.
Lord Avebury: In the past, interpretation of the phrase,
Years ago, there was a case relating to the entry of someone connected to an extremist religionI forget whether it was the scientologists or the Moonies. Sir John Foster carried out an inquiry into whether it was legitimate to exclude such people from the United Kingdom. In future, the Mooniesor whoever it may bewill be excluded under this clause, and there will be no public discussion of the merits of the decision. The matter will be dealt with by SIAC behind closed doors.
Baroness Scotland of Asthal: The noble Lord says, "behind closed doors", but the point is that there will be a proper hearing. I hope that the noble Lord is not suggesting that SIAC will, in some way, undertake the process improperly and injudiciously. The point of having SIAC is to have a robust system on which we can all rely to make sound and proper judgments. The decisions will be made by appropriate judicial officers with proper training and expertise.
Earl Russell: The complaint is that the criterion,
Lord Mayhew of Twysden: I want to make a suggestion. I shall not invite the Minister to draft amendments while on her feet in public, but I wonder whether another form of wordssuch as "expedient for another reason in the public interest"might meet the concerns raised by the noble Earl, Lord Russell. If that were adopted, we would, at least, know that such a decision would not be taken without reference to the Attorney-General, who is the guardian of the public interest. That would be the probability and ought to be the rule. Will the Minister consider that? It would be less offensive to have such a phrase in the Bill than the existing wording, for the reasons that the noble Earl suggested.
Lord Judd: As someone who supports and understands the Government in their intention, I ask them to consider whether more precise wording could cover this point. The noble and learned Lord's observations are extremely helpful in that respect.
I am worried not only by the noble Earl's suggestion that the provision could bring the rule of law into disrepute, but also that we are moving into an age where it is too easy to think that political activity of itself is sometimes questionable, uncomfortable and unacceptable. Anything that inadvertently aids and abets such a reactionary and dangerous view is unfortunate. I therefore hope that my noble friend will take very seriously the noble and learned Lord's point and at least undertake to reconsider the issue before Report stage to see whether better wording could be introduced.
Baroness Scotland of Asthal: I am happy to look at the wording more carefully as my noble friend suggests, but I must reiterate that "of a political kind", or "of a political nature", has been in the legislation since 1971. It does not lie outside what our courts have been used to dealing with. I also emphasise that SIAC will hear evidence in private only if it is warranted. Most of the evidence is likely to be heard in public.
We will see whether something more solicitous can be contrived and we will look at the suggestion made in relation to the wording. But because the term "political kind" has been in usage for considerable time, we may have to return to the issue.
Earl Russell: I thank the noble and learned Lord and the noble Baroness for those responses.
Lord Avebury: We are not worried about the phrase, "another reason of a political kind", which as the noble Baroness explained, has been in use since 1971, but about the difference in the procedurewhich has always existedwhereby such cases could be explored in public. The noble Baroness gave two examples and I gave another of highly political reasons that led governments to exclude people from the United Kingdom but were nevertheless discussed in the media.
On the noble Baroness's figures, 13 certificates have been issued since October 2000. I do not think that any of those cases have been in the media, but I may be wrong. She said that it is always open to SIAC to hold hearings in public if it does not believe that the political matters before it are of such a sensitive nature that they have to be held in camera. So I hope that some form of words can be devised as the noble Lord, Lord Judd, helpfully suggested, that will distinguish between the two categories of case: those which can be dealt with only through SIAC because sensitive security issues are involved, and those of a purely political nature, such as the Reverend Moon or the Ku Klux Klan, which can properly be dealt with by adjudicators.
I thank the noble Baroness for what she said about the extension of Community Legal Service aid. That is a sensible concession, bearing in mind that many of the people who would be eligible under the new section being inserted by the Government will already have had their cases approved through the Community Legal Service at prior stages. If they had to go through the Access to Justice Act 1999, which the noble Baroness said had been used in such cases, it would
mean switching from one form of assistance to another, which might create unnecessary bureaucracy. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendments Nos. 206 and 207 not moved.]
Lord Goodhart moved Amendment No. 207ZA:
The noble Lord said: The amendment is based on the views expressed in paragraphs 93 to 103 of the report on the Bill by the Joint Committee on Human Rights. The Bill considerably increases the number of circumstances in which immigration and asylum appeals can be banned from going to an adjudicator or thereafter to a tribunal. The original decision will become subject to judicial review, but the Bill contains no protection against the removal from the United Kingdom of the subject of the decision objected to while the judicial review proceedings are continuing.
The Joint Committee concluded that the removal of a person while judicial review was pending could in some circumstances result in a violation of his rights under Article 13 of the European Convention on Human Rights; that is, the right to an effective remedy before a national authority for breach of other convention rights. Article 13 is not one of the convention rights under the Human Rights Act, but it could be the basis for an appeal to the European Court of Human Rights in Strasbourg.
The defeat of the human rights of the person removed could arise where an asylum seeker was returned to the country of origin and imprisoned there; in that case the purpose of asylum is defeated as it becomes impossible. The Joint Committee identified such problems under several clauses; the first in numerical order is Clause 76, where immigration decisions taken on certain specified grounds are excluded from the appeal structure. Those grounds include cases where a person is seeking to remain in the United Kingdom for longer than permitted, or where he is remaining for a purpose other than that for which he is permitted under the immigration rules.
Clause 81 bans an appeal on human rights grounds against an order for removal to an allegedly safe third country if the Home Secretary has certified that, in his
Nothing I say casts any question on the point raised by my noble friend Lord Avebury about the possible absence of due publicity on SIAC's proceedings. This is simply looking at the position of someone who has a right of appeal to SIAC and the question of whether that right of appeal, whether or not it is publicised, meets the required criteria for the judicial process. There are problems with Clauses 84 and 86 and there is no remedy except judicial review under either clause. In each case, as reported by the Joint Committee, there is a risk that a legitimate challenge to a court in the United Kingdom could be aborted by the removal from the United Kingdom of the person against whom the order is made during the judicial review proceedings.
The reports of the Joint Committee deserve great respect. There is a risk that in some cases the removal of an immigrant or asylum seeker while judicial review is pending could prejudice human rights. There may be only a few cases but, frankly, a few is too many. I believe that the Government should reconsider the issue. I beg to move.
"DEFERMENT OF POWER OF REMOVAL
(1) The power to remove a person from the United Kingdom under the Immigration and Asylum Act 1999 shall not be exercised while there is pending applications for judicial review of any decision to which subsection (2) applies, or an application for leave to apply for judicial review of such a decision, or while the time for making such an application has not expired.
(2) This subsection applies to
(a) an immigration decision to which subsection (2) of section 76 applies;
(b) a decision by the Secretary of State to certify that in his opinion a claim under subsection (2)(a) of section 81 is clearly unfounded;
(c) a decision by the Secretary of State or an immigration officer to grant a certification under sections 84 to 86."
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