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The Deputy Chairman of Committees (Lord Elton): I have to tell the Committee that if the amendment is agreed to, I shall be unable to call Amendment No. 209C.
Lord Kingsland: I have two questions for the Minister. Why are the five types of appeal in Clause 70(2)(a),(c),(d),(e) and (f)those amended by government Amendment No. 209Cchosen as being treated as finally determined by the issuing of a deportation order rather than any of the other types of appeal?
Secondly, the Explanatory Notes state that Clause 92 re-enacts Section 58 of the 1999 Act. However, Section 58(10) of the 1999 Act, which makes similar provision to Clause 92(5), states:
There are therefore two differences between the 1999 Act and what is in the Bill, which I invite the Minister to explain. First, what is the difference between "abandoned", the term used in the 1999 Act, and "finally determined", the term used in the clause?
Secondly, Section 61 of the 1999 Act, referred to in Section 58(10) of that Act, mentions only appeals against variations of limited leave to enter or remain in the United Kingdom. The types of appeal covered by subsection (5) of Clause 92 appear to go wider than that. They include, for example, an appeal against the revocation of the indefinite leave to remain of a refugee and his dependants under Clause 65(3), which is both covered by Clause 70(2)(f) and which is also included in the list of appeals to be covered by Clause 92(5).
I hope that the Minister will be able to clarify the situation; but I should understand if he would prefer to reflect over the summer adjournment and return to it at a later stage.
Lord Filkin: Clause 92 defines when an appeal is pending. That is an important determination, given that it usually prevents removal through a deportation order. The aim of the one-stop appeal system, as we have discussed at length today, is to do away with multiple appeals. Amendment No. 209BA would undermine that aim.
We see no benefit to the appellant, other than delay, in allowing an old appeal to proceed after a deportation order is issued. The reason for that is that all relevant matters can be considered in the appeal against the decision to make the deportation order. It may help if I re-emphasise that because of the right of appeal in all cases against a decision to make a deportation order, an appeal against such a decision is not covered by Clause 92(5), so no one is left with the right of appeal by virtue of this subsection.
The issues put forward in any appeal against another decision which is deemed to be finally determined can be taken up in the appeal against the decision to make the deportation order. I believe that that is the assurance sought by the noble Lord, Lord Avebury, and I well understand why. For those reasons, Amendment No. 209B would create a duplication of effort for the Immigration Appellate Authority and there is a right of appeal against a decision to make a deportation order. That order supersedes the original immigration decision and any substantive issues that were raised in the original appeal can be considered in the appeal against deportation.
The noble Lord, Lord Kingsland, raised a number of important and challenging questions; for example, the distinction between "abandoned" and "finally determined". That is merely the way the draftsman has expressed the position. That is probably the easy question to answer out of his seven difficult ones before breakfast. I shall accept his kind invitation to write to him with the ability of giving more time and consideration to the detail.
The noble Lord, Lord Avebury, mentioned the Bahrain examples of people returning. I would like to look at what I said in reply earlier to see whether there is any incongruity between that and the points he has raised. I shall write to him accordingly one way or the other.
With those assurances, I hope that the noble Lord will agree to withdraw his amendment.
Lord Avebury: I am grateful to the noble Lord, in particular for the assurance that the substantive matters which were covered by the original appeal can be dealt with on the appeal against a deportation order. With regard to the deterrent effect on exiles going back for trial periods to their countries of origin,
I am sure that we can deal with that in correspondence or when we meet during the summer Recess, as no doubt we will. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Filkin moved Amendment No. 209C:
On Question, amendment agreed to.
[Amendment No. 209D not moved.]
Clause 92, as amended, agreed to.
Clause 93 [Notice of immigration decision]:
[Amendments Nos. 210 and 210ZA not moved.]
Lord Filkin moved Amendment No. 210A:
On Question, amendment agreed to.
[Amendments Nos. 211 to 217A not moved.]
Clause 94, as amended, agreed to.
Lord Avebury moved Amendment No. 217B:
The noble Lord said: I shall detain the Committee only for a moment with this amendment. Its purpose is to ensure that voluntary agencies which are eligible have grants to give advice and assistance to those who have a right to bail. In Section 55 of the 1999 Act, the Secretary of State had a power to make grants to any voluntary organisation providing advice or assistance for detained persons under Part III and that included the help with applications for bail under Section 53.
We have a problem in that more than half the people being detained do not manage to make applications for bail. A study of 88 cases made by Bail for Immigration Detainees between 1st August and 31st October showed that 29 made applications and were represented; 15 were not pursued because there were no sureties; and 44, representing half the sample, were not pursued and were presumably deemed to have failed the merits test if they ever reached a legal representative. However, we do not have a sufficiently full analysis to show that that was the reason for the outcome in every case.
We know from BID that many cases succeed outside the parameters laid down by the Legal Services Commission. I suggest that means that the merits test is not properly framed for the purpose, or that there needs to be support for the organisations dealing with bail which do not presently qualify.
There is always a temptation, because of the volume of work involved in the appeals, to think of bail as of lesser importance. Practitioners are asked to make a judgment, where they consider the prospects of success to be less than 50 per cent, to take on bail only where there are human rights implications or the public
Lord Bassam of Brighton: As grateful as we are to the noble Lord for tabling the amendment, its effect would be that organisations such as the Immigration Advisory Service, the Refugee Legal Centre and other not-for-profit organisations would be able to apply for grant-in-aid funding from the Home Office in order to provide advice, assistance and representation at all immigration and asylum bail hearings. That would include those where the subject had absolutely no right of appeal.
Clause 97 is intended simply to enable the existing provisions and arrangements for funding currently made under Section 81 of the 1999 Act to continue. The clause continues the range of provision. The organisations funded under Section 81 of the 1999 Act can already provide such advice, assistance and representation at immigration and asylum bail hearings as necessary, where the application for bail is linked to an appeal.
It is also worth pointing out that the Legal Services Commission already provides for representation at bail hearings, including situations where there is no right of appeal. So far as we are concerned, there is no reason why Clause 97 should seek to duplicate that. Thus, what the noble Lord seeks is, in effect, already in place.
We see no good reason for disturbing arrangements which are working perfectly well, ensuring that the range of advice, information and representation is in place.
Lord Avebury: The noble Lord is mistaken in thinking that the present arrangements work properly. If he took the trouble to speak to some of the agencies that are trying to find sureties for people with a legitimate right to apply for bail, he would know that one of the principal reasons why bail is not granted is the difficulty involved in bringing forward sureties who know the applicant and who are available at the court in which the application is to be made.
Lord Bassam of Brighton: We shall have a long, hot summer discussing the details of this legislation. I do not make any promises or commitments, but of course if the noble Lord is unhappy with certain aspects of this part of the Bill, no doubt he shall have an opportunity within the parameters of our discussions to air his concerns, in particular with regard to sureties.
"( ) advice or assistance and representation for those with a right to apply for bail;"
7 p.m.
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