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Baroness Scotland of Asthal: I do not know how long the noble Lord wants me to take in responding to him; I can certainly write to him. I could give a lengthy jurist's answer, but I dare say that we would be here for another half an hour. If I may, I shall further explore and elucidate my explanation of how we construe the
phrase "error of law", and I shall send that explanation to members of the Committee who have participated in our debate.
Lord Lucas: Will the Minister send us some information on the reasons for the 12 per cent figure for those who succeed? What, in the vice-president's consideration, has gone wrong? On what basis are the appeals granted? If we had that information, we could discover whether such appeals would come through the new system or would not have an avenue.
Baroness Scotland of Asthal: I can undertake to give members of the Committee the advantage of the information that is available at the moment. It may be difficult to divine the precise nature of every species of appeal. I can see what can be done to identify the species of judicial review that have succeeded to date. I do not know, however, whether I will be able to do that within the boundaries of what is reasonable. I shall do what I can in that regard.
If the Committee will permit me to move on, I shall answer some of the earlier questions. It was suggested that adjudicators might not all be legally qualified; in fact, adjudicators are appointed if they have such legal or other experience as appears to my noble and learned friend the Lord Chancellor to make them suited to appointment. Most adjudicators have seven years' general qualifications, as set out in the Courts and Legal Services Act 1990. Those who do not will have other relevant experience. For instance, if they have practised extensively in that area of law in another jurisdictionSouth Africa or elsewherethat experience is among the things that my noble and learned friend is entitled to take into account.
The adjudicators who deal with the matter are experienced, and they have the requisite legal knowledge. They can do the job very well. Members of the Committee who rightly praised the adjudicators, when we debated the issue last week, were right to do so. They are of high quality and do a good job.
I hope that I have now answered all the points raised by the Committee. If, by some mischance, I have not responded on a particular matter, I will, of course, write. I ask the noble Lord to withdraw the amendment.
Lord Joffe: I have one question to ask the Minister. She has not dealt with it, and it is important to my response. Will future appellants, finding themselves in the position of the Turk who was granted leave to appeal on the grounds of fact, have a remedy under the Government's proposals?
Baroness Scotland of Asthal: I have answered that question twice, but I am happy to do so again. Our construction is that if the decision amounted to a perverse judgment on the facts, it would be capable of being appealed as a point of law to the IAT.
Lord Joffe: I am indebted to the Minister for that reply and for the patient and courteous way in which she has dealt with the amendment, which has taken up
so much of the Committee's time. I am indebted to the noble Lord, Lord Judd, for correctly interpreting my comment on apartheid South Africa. I am not for a moment suggesting that one could in any way compare the situation in the United Kingdom with the one in that country at that time. In essence I said that, as evidenced by what happened in South Africa, there is a danger in seeking solutions to threats, real or conceived, by responding by removing the rights of selected groups of society .I will leave time to consider the Minister's response to the amendment and to seek to align her clear statement on the concern with justice for all with the range of actions being taken by the Government in withdrawing asylum seekers' rights. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 207B not moved.]
Lord Filkin moved Amendment No. 208:
On Question, amendment agreed to.
[Amendments Nos. 208A and 208B not moved.]
Lord Filkin moved Amendment No. 209:
The noble Lord said: I beg to move.
Baroness Carnegy of Lour: In view of Amendment No. 208, surely Amendment No. 209 should also include the Court of Session.
Lord Filkin: I take note of the noble Baroness's good question, which follows a theme of appropriate questioning. I would appreciate it if she would accept a written note from me subsequently.
On Question, amendment agreed to.
[Amendments Nos. 209ZA to 209ZC not moved.]
Clause 89, as amended, agreed to.
Lord Filkin moved Amendment No. 209A:
On Question, amendment agreed to.
Clause 90, as amended, agreed to.
Lord Filkin moved Amendment No. 209B:
On Question, amendment agreed to.
Lord Avebury moved Amendment No. 209BA:
The noble Lord said: We are not sure whether the clause represents any substantive change to the 1999 Act. The Explanatory Notes say that it is merely a re-enactment of Section 58 of that Act, but paragraph 3 of Schedule 4, which deals with the determination of appeals, makes no reference to the range of circumstances mentioned in subsection (5). Where an appeal is made against refusal of leave to enter, refusal of a certificate of entitlement under Clause 10by which a person has a right of aboderefusal of variation of leave to enter or remain when the person has no existing leave, or revocation of indefinite leave to remain, and the Secretary of State has issued a deportation order against the person, under that provision the appeal is to be treated as determined. In other words, the person lodges an appeal that would have been heard but for this subsection, but the Secretary of State cuts it off by making a deportation order.
Under paragraph 24(2) of Schedule 4 to the 1999 Act, an adjudicator must dismiss an appeal against refusal of entry clearance only if he is satisfied that a deportation order was in force against the appellant at the time. That is sensible and we agree with it. I presume that under Clause 92 such a case would not even reach the adjudicator. We have no objection to that if it is simply a question of preventing such appeals entering adjudicators' lists, and thus saving time and money.
But the clause extends the automatic determination of appeals following the making of a deportation order to the other circumstances I mentioned. At present, the Secretary of State cannot sign a deportation order under the Immigration Act 1971 until a person has exhausted appeal rights against the notice of decision to deport, by virtue of Section 63(2) of the 1999 Act. That provision is repealed by Schedule 9, but it is replaced by Clause 70(2)(j). The right to appeal against deportation orders is therefore not affected by Clause 92.
The Minister makes a decision under one of the headings in Clause 70, and while the person still has a right of appeal, the Minister decides to make a deportation order. The person appeals against that order, and the Minister cannot then sign it. This raises a substantive point. Does the first appeal go into cold storage while the appeal against deportation is considered, or is the substance of the first appeal considered as part of the deportation hearing? Perhaps the Minister would give some further explanation of how that works, and in what circumstances a deportation order might be signed while an appeal is pending.
In particular, we are concerned about circumstances already discussed of the revocation under Clause 70(2)(f) of a person's indefinite leave to remain under Clause 65. The Minister did not explain how the power would be used in relation to a person who had technically availed himself of the protection of his country of nationality, by going back on a short visit with a view to making inquiries about whether it would be safe for him to return permanently.
On the previous occasion I mentioned the example of Bahrain, where the Amir, now King, has permitted exiles to return, abolished the state security courts, and released political prisoners. Many Bahraini exiles living in London wanted to go back for a few weeks, to discuss the new situation with friends and to assess the risk that ex gratia concessions that are not protected by a vigilant parliament or a tradition of adherence to the rule of law might subsequently be put into reverse.
What the Government are saying to anybody facing a similar problem in the future is, "If you go back on a trial basis, not only can we take away your indefinite leave to remain but we can also halt your appeal against that decision by issuing a notice of deportation against you, if we think that would be conducive to the public good". No doubt the Government will say that the power would not be used arbitrarily against a person in the circumstances described, but the existence of this subsection on the statute book could be a deterrent to the normal conduct of exiles who want to consider returning to their country when the conditions that led them to fear persecution are relaxed. I beg to move.
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