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Lord Filkin: My Lords, I will seek to keep my comments succinct. I will take first Amendment No. 54. Our starting point, as I am sure the House knows from the Committee stage, is that firm action needs to be taken against those shown to have obtained leave, including indefinite leave, by deception. The normal
response in such situations would be to remove the person from the United Kingdom, and powers to do this already exist in legislation.There will be occasions when the removal of someone who has obtained leave by deception is prevented by other factors. There may be legal restrictions; for example, it might be contrary to the ECHR to remove someone for the time being. There could be practical matters; for example, a lack of appropriate documentation might mean that the person's home country would not accept them back.
Where removal is impossible we have concluded that it would not be right simply to do nothing. It is not an acceptable option to show that a person has obtained indefinite leave by deception and then to let matters rest. Subsection (2) provides a response; it enables a person's indefinite leave to be revoked, and such a response would not be an empty gesture. First, it would underline the determination to crack down on those who gain leave by deception, and, secondly, it would send a message to individuals that, although their removal may not be possible at that time, their long-term presence in the country is far from guaranteed. Once the conditions change so that removal becomes possible, the fact that the person has lost his indefinite leave and is liable to be removed when circumstances permit should ease removal when the time comes. Thirdly, pending removal, the revocation of indefinite leave will enable certain benefits associated with such leave, such as family reunion, to be denied to the individual.
The noble Lord, Lord Kingsland, asked what is the status of a person once his leave has been removed, and whether indefinite leave would always be replaced with short periods of leave. The answer is no, it would not always be replaced with short periods of leave. There could be circumstances, for example, where the Government and the Home Secretary judge that it was likely that the impediments to the return of the person to his country of origin were likely to change in the near future, and, therefore, they might not be granted a further period of leave in the expectation that their return to their country of origin would be possible. The House can envisage the circumstances in which one might consider that a change of regime has made it no longer an impediment to do so.
In Committee I referred to the tautological situation—I still believe that there is no better word to describe it—that if someone has no leave they effectively have no status. Someone without status under the immigration legislation would be expected to leave when it was possible. It would be wrong to require the Government to replace that on the face of the Bill with a six-month period when practical circumstances can change so quickly. In any event, there is always the duty on the Secretary of State to act reasonably.
In a sense, talking about ELR presages discussions that we shall have next Thursday. I should much prefer to wait until we can discuss those issues and the House has had the benefit of seeing the amendments. ELR will not be taken away arbitrarily. We cannot give a
commitment that someone with ELR will always be able to stay permanently in the United Kingdom. The reason is clear, just as we are not saying that somebody with indefinite leave to remain will always be given a guarantee to remain perpetually in the country. That is what we are discussing on this clause. I am not seeking to avoid the question, but it would be better if we deferred discussion on these issues until we had the opportunity to consider the Government's amendments and any opposition amendments.
Earl Russell: My Lords, in saying that ELR will not be arbitrarily taken away the Minister has given me all that I asked for and I thank him.
Lord Avebury: My Lords, before the noble Lord sits down, do the remarks that he has just made about deferring discussion on this amendment apply to Amendments Nos. 54A, 54B and 54C as well? I was proposing to deal with them separately from the amendment now under discussion, with the leave of your Lordships.
Lord Filkin: No, my Lords, I was not suggesting that we deferred discussion on Amendments Nos. 54A, 54B and 54C. I was suggesting that we should not have much discussion on the Home Secretary's article in The Times on Monday, because that refers to the issues that we shall debate on the recommitment next week. The business before us now is Amendments Nos. 54A, 54B and 54C. I suggest that we continue discussion on those but do not discuss the content of the article in The Times, which will no doubt be the subject of good discussion next week. I hope that that clarifies.
9.15 p.m.
Lord Avebury: My Lords, I hope that the Minister is happy with our decision not to group Amendments Nos. 54A, 54B and 54C with Amendment No. 54.
Lord Filkin: My Lords, I have not yet spoken to Amendments Nos. 54A, 54B and 54C. Let me do so briefly.
Lord Avebury: No, my Lords, the Minister should not do that.
Lord Filkin: My Lords, I am sorry, I did not hear what the noble Lord said.
Lord Avebury: My Lords, I was asking the Minister if it was acceptable to him if we dealt with Amendments Nos. 54A, 54B and 54C separately from Amendment No. 54.
Lord Filkin: My Lords, I shall be guided by the House as to whether we can ungroup the amendments. If the House is so content, we shall so do.
Baroness Carnegy of Lour: My Lords, have we not already debated those amendments in Committee?
Lord Filkin: My Lords, we may well have done so, but they have been tabled again on Report, so it is
perfectly valid to consider them again. I understand that the noble Lord, Lord Avebury, wishes to ungroup Amendments Nos. 54A, 54B and 54C from Amendment No. 54. If the House is content with that, it is not in my wish or power to impede that. I have nothing further to say in response to Amendment No. 54. I invite the noble Lord, Lord Kingsland, to withdraw it.
Lord Kingsland: My Lords, I thank the Minister for his response. I shall not press the amendment to a vote this evening but I may well return to it on Third Reading. I understand the nature of the Government's difficulties here. However, while some people who are given a series of short permissions to stay may find, quite quickly thereafter, that circumstances change so that they can leave this country, others may find that this series of short steps goes on for years—because the situation at Year 1 remains the same at Year 10 or Year 15—and they are still in this country with an uncertain status.
In those circumstances I suggest that, on humanitarian grounds, consideration ought to be given to the fact that the person has lived in this country for such a long time. After all, a person needs to be in this country for only five years to be able to apply for naturalisation. If somebody has to undergo a series of short-term leaves for 10 years or more, there ought to be a duty to give consideration to permanent permission to stay.
I understand the difficulties that the Minister might have in putting that on the face of the Bill, but might not that be the subject of a guideline? We can speculate on which would be the most appropriate clause under which it should be issued. There is no power to issue guidelines in this clause.
I am not asking for a clear response at this juncture because the point has not been raised before; but will the noble Lord consider that possibility? In addition to everything else that I have said, there is also the desirability of some legal certainty for individuals in this situation. While they are here we have responsibilities towards them.
I am not insisting on an immediate response and the Minister may well want to sit tight having heard that. I shall be inclined to raise the issue again on Third Reading. Perhaps the Minister might like to reflect before then on what I have said.
Lord Filkin: My Lords, I shall be happy to study with care and thought what the noble Lord has said when I read Hansard.
Lord Kingsland: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Avebury moved Amendment No. 54A:
- Page 39, line 11, leave out subsection (3).
The noble Lord said: My Lords, I am most grateful to the House for agreeing to consider Amendments Nos. 54A, 54B and 54C separately from Amendment
No. 54. I think that the matter dealt with in these amendments is rather different from that in the latter amendment. The matter has already been dealt with in Committee, but it is vitally important. Someone who is deprived of indefinite leave to remain would be faced with a very difficult situation. Such a power would create an uncertainty among those who already have this status that it may be taken from them at some point in the future. I suggest that knowing that the power exists to revoke this status would put in their minds a feeling of insecurity, and it would make a mockery of the Government's stated aim of integrating these people into our society.In Committee in the other place, concern was expressed about the effect that this clause will have on refugees who might wish to make exploratory visits back to their country with a view to a possible permanent re-entry into the society of their origin. Although the Minister indicated that they were not the intended targets of this clause, its effect is to put them in uncertainty and to make it possible for the Secretary of State to exercise these powers against them.
I should like to give the Minister a recent, very practical example. As he may know, the situation has improved considerably in Bahrain in that, some time after he came to power, the new Emir let out all the political prisoners, permitted political exiles to return and abolished the state security courts which by common agreement had been the instrument of unfair trials against those who disagreed with the regime. Faced with that situation and the government of Bahrain's stated intention to introduce a form of democracy—which may not be perfect but is certainly better than anything that they have had there before—many Bahraini exiles in this country wanted to go back there and spend a few weeks talking to friends and colleagues to ascertain whether the conditions had sufficiently changed to justify their permanent return.
They sought to obtain assurances from the Home Office that if they did that it would be possible for them to return to this country before finally making up their minds. It was not possible for the Home Office to give them that assurance. I should have thought that the Government would want to encourage that type of behaviour when the political situation in the countries of origin had changed.
Another recent case that I had was that of an Iraqi who had been granted indefinite leave to remain in France but returned to his home country to explore the possibility of reaching a political solution with the regime at the highest level. While there, but after several visits to France, he was able to discuss matters with ministers. When the French authorities discovered that he had made these visits back to his country of origin, they revoked his leave to remain in France. He is now in this country seeking asylum here. After judicial proceedings, it has been agreed by the courts that he should have the facility to present an application for asylum in this country.
If the powers in this clause are given to the Secretary of State, the same thing might happen to refugees in this country as we see occurring across the Channel in
France. People who for perfectly bona fide reasons seek to test the temperature in their countries of origin could be given their congé and told by the Secretary of State to get out. I think that we did not sufficiently explore this matter in Committee, and it would be useful if we could hear from the Minister about how those cases are going to be dealt with.
As for the issue of voluntarily re-establishing oneself in the country from which one was a refugee, I think that it all turns on how long one returns for. It would be useful if the Minister could give an assurance that nothing in this clause is intended to have the effect of preventing people from behaving in the manner that I have suggested, which is obviously common sense. It would be in the interests of this country to encourage that. We are starting to commend people from Afghanistan, Kosovo and other parts of the world where the situation was much worse in the past to go back to those countries to try to re-establish themselves. Is it really the Government's policy to discourage that kind of behaviour? I do not think so. I beg to move.
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