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Lord Bassam of Brighton: My Lords, this issue was debated at some length on 23rd July. It is not my intention to cover ground that was covered on that occasion. However, I am aware of the understandable concern that some future government might abuse that provision. In theory, it would be possible to deny an unsuccessful asylum seeker the right of appeal indefinitely by granting leave to remain for successive periods. As was explained to the House on 23rd July, the Government would not seek to do that. I am happy to give that reassurance again. However, one can fully understand the anxieties that have prompted the amendment.

We have, as a consequence, asked officials to consider whether it would be possible to amend Clause 81 to provide a right of appeal wherever an unsuccessful asylum seeker is granted exceptional leave to remain for more than a year in total—so, two grants of a year, two grants of eight months, or three grants of six months would all result in the right of appeal.

Regrettably, it has not been possible to resolve how the matter should be dealt with in time for this debate. However, it is our expectation that we shall be able to satisfy your Lordships at Third Reading that the concern that is understandably addressed in the amendment has been properly reflected upon. It is important that we get the details right.

If this amendment were accepted, it would still be possible to deny the right of appeal. Instead of granting a year at a time, government could grant a month at a time. No doubt that is not the intention or spirit behind the amendment, but it opens up that unpalatable prospect. It would be a most regrettable outcome.

The noble Lord asked a specific question about giving full reasons when refusal has occurred. I am more than happy to give the assurance that full reasons will be provided. I hope that in the light of those assurances the noble Lord will feel able to withdraw his amendment.

Lord Avebury: My Lords, I am most grateful for the two points that the Government have conceded: first, that full reasons will be given for the granting of exceptional leave to remain and for the refusal of refugee status where that decision is made by the Immigration and Nationality Directorate; secondly, that if cumulative periods of granted ELR add up to over a year, the right of appeal for refugee status will kick in at the end of 12 months. We very much look forward to an amendment at Third Reading giving effect to that undertaking. In the meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Bassam of Brighton moved Amendments Nos. 22 and 23:

Page 48, line 14, leave out "claim for asylum" and insert "asylum claim"

Page 48, line 16, leave out subsection (3).

On Question, amendments agreed to.

Clause 83 [Matters to be considered]:

Lord Filkin moved Amendment No. 24:

Page 49, line 11, leave out "against an immigration decision" and insert "or 81(2) against a decision"

The noble Lord said: My Lords, this is a minor technical amendment. The 1999 Act makes it clear that in an asylum appeal the adjudicator can consider any relevant evidence, whether or not it could have been foreseen when the decision to appeal against it was taken.

Clause 83 repeats this provision. It does not include an asylum appellant who has been given limited leave to remain on some other basis—that is, those appealing under Clause 81(2). The amendment corrects that image. I beg to move.

On Question, amendment agreed to.

6.45 p.m.

Lord Kingsland moved Amendment No. 25:

Page 49, line 15, leave out subsection (5).

The noble Lord said: My Lords, this amendment seeks to probe for the second time why the Government intend that appeals against the refusal of an entry clearance and against the refusal of a certificate of entitlement should be assessed on a different footing from other appeals. In these cases, an adjudicator will be able to consider only evidence relating to the date of the decision, as opposed to all relevant evidence as at the date of the appeal hearing.

Clause 83(5) lays down that in appeals against refusal of entry clearance or refusal of a certificate of entitlement to the right of abode in the United Kingdom—both are appeals made outside the United Kingdom—an adjudicator,

"may consider only the circumstances appertaining at the time of the decision to refuse".

That is in contrast to appeals made from within the United Kingdom, where an adjudicator,

"may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision".

On 23rd July, I asked the Minister the following question:

"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?".—[Official Report, 23/7/02; col. 334.]

In the course of his reply, the Minister said that he would write to me, if appropriate. Indeed, on 19th September, I received a communication from the

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noble Lord's honourable friend in another place, Mrs Beverley Hughes. In the final part of the letter, under the heading "Entry Clearance Appeals", she states:

"We have considered whether adjudicators should be able to take into account new facts when determining an appeal but remain of the opinion that despite the delays that can occur that Entry Clearance Officers are best placed to deal with these. Further relevant evidence is much easier to investigate in the country of origin and can be put direct to the ECO without penalty as soon as it is available rather than waiting for the appeal hearing, which may result in adjournment thereby delaying matters still further.

The new provisions for asylum seekers are not designed to give preference to such cases and disadvantage those applying for Entry Clearance but to streamline the appeal process and enhance one stop appeals, by reducing the opportunities for delay".

I am, of course, extremely grateful to Mrs Hughes for taking the trouble to write me a letter and to give me that explanation. But I must confess to being not much wiser about the rationale that lies behind the distinction. My understanding is that in other parts of the Bill the Minister is urging us to accept that an appeal is an appeal and it does not matter whether it is from inside the United Kingdom or launched from some other country; that no one launching an appeal against an unfavourable decision from some other country will in any way be disadvantaged.

If that is so, why is there this plain distinction on the face of the Bill between the kind of evidence that can be taken into account in these two sets of circumstances? I am most apologetic to the Minister for raising this matter again, but I wonder whether he is in a position to unpack Mrs Hughes's answer and enlighten me further. I beg to move.

Lord Filkin: My Lords, to respond in short: a little bit, but we will see how much that manages to satisfy.

As the noble Lord, Lord Kingsland, knows, under the 1999 Act, the adjudicator is 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 followed case law, that of Ravichandran. Section 83 extends the principle so that nearly all appeals are dealt with on the "time of hearing" basis. That has advantages for one-stop appeals, in that updated circumstances can be considered without requiring a new decision or appeal.

As the noble Lord pointed out, the exception is appeals against refusal of entry clearance or a refusal of certificate of entitlement. I shall not repeat his quotation, which I can declare to be exact, from the letter of my honourable friend Beverley Hughes. Why are entry clearance cases treated differently? In short, they are not one-stop appeals. In a one-stop appeal, the adjudicator will consider everything arising up to the date of the hearing. That will usually include asylum or human rights issues relating to a potential removal. They look forward to what the situation might be when removal is likely to take place, so it is appropriate that the evidence considered is the latest available. Overseas cases, however, are an assessment

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of a decision taken on the basis of whether or not someone qualifies at that time under the Immigration Rules.

Case law in ordinary immigration cases suggests that it is fair to consider evidence that was not before the decision-maker but that is relevant to the decision and relates to circumstances at the time that the decision was taken. However, case law goes no further than that. Where circumstances have changed, the Government believe that it is right that a new application be made to the entry clearance officer. Adjudicators will still be able to take account of evidence that throws light on the facts at the date of the decision. However, the result of putting in evidence at the hearing can only incorporate delay if further investigation is needed, especially where the evidence originates from abroad. I hope that that response is helpful in at least some measure.

Lord Kingsland: My Lords, I could not help noticing that the Minister's reply to me on this matter lacked the ebullience and gusto of his replies to other Members of the Opposition.

Those appealing from abroad as a result of Clause 83(5) are placed in a less favourable position than those appealing from the United Kingdom. Nothing that the Minister said from the Dispatch Box this afternoon gave me confidence that the Government had given a rationale for the acceptability of this distinction. I will reflect on what the Minister said and I may return to the issue at Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 [Ineligibility]:

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