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The Earl of Sandwich: I thank the noble Baroness very much for that full explanation of why we have to live with Section 55. She may have anticipated that I was not expecting her to withdraw the section at a stroke. On the other hand, I hoped that she would recognise the strength of the opposition to it and, even more, the arguments against it continuing in its present form. At the very least, the Home Office could more seriously after today consider the possibility of the review, which was supported by the noble Baroness, Lady Anelay, if only in relation to Court of Appeal cases. That is an advance.

I had hoped that some of the arguments for retaining the section would fall away. For example, the three-day concession may mean that fewer people are destitute, but thousands more are bona fide applicants who do not qualify for assistance and still have to prove their claims the hard way. To my mind, there is still no evidence that Section 55 is an effective deterrent.

When referring to that section, the noble Baroness used phrases suggesting that it had "contributed to" or "played its part in" halving the number of applicants. I was grateful to the noble Earl, Lord Russell, because it would be helpful if the Minister wrote to him—and copied the letter to me—explaining how those calculations are made. Of course I do not intend to challenge the figures given by the noble Baroness, but we will return to the matter at the next stage.

I also thank other noble Lords for making important contributions. For example the noble Earl, Lord Russell, asked how people could hear about our regulations in the United Kingdom. The Home Office has an exaggerated view of its own publicity. The noble Lord, Lord Avebury, mentioned the important question of the 2,000 or so A8 asylum seekers, which is causing a degree of chaos. The right reverend Prelate raised our sights and made a case for sympathy for the Government, which we all appreciated half way through. I was also glad to hear the reassurance given by the Minister about the outreach, including efforts being made by NASS to research the true situation of asylum seekers through careful casework. That is always encouraging.

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We shall return to the matter and we will read the debate carefully. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Retention of documents]:

Baroness Anelay of St Johns moved Amendment No. 25:

    Page 12, line 27, leave out from "document" to "an" and insert "is detained by"

The noble Baroness said: In moving Amendment No. 25, I shall also speak to my Amendment No. 26. The debate on whether Clause 12 should stand part is in the same group and appears in the names of the noble Lords, Lord McNally and Lord Avebury.

I am grateful to the Immigration Law Practitioners' Association for their briefing on the background to the clause. These are probing amendments that seek to clarify the Government's intentions in adding this new clause to the Bill at Report in another place. At that stage there was no time for the Minister even to introduce and explain the clause, nor for the House to debate it.

Clause 12 provides the Secretary of State or an immigration officer with the power to retain documents—which could include a passport or a birth certificate—while it is suspected that the person to whom the documents relate is liable to removal; and that the retention of the document may facilitate their removal from the United Kingdom. The Explanatory Notes state that this clause complements current powers, such as those in paragraphs 4(2A) and 18(2) of Schedule 2 to the Immigration Act 1971, which already allows the seizure and retention of documents in certain circumstances.

Can the Minister explain in what respect the new powers in Clause 12 complement the existing ones and in what respect they add to them? In what circumstances are the documents likely to "come into the possession" of the Secretary of State or an immigration officer? The drafting is rather odd. It sounds as though someone could be trying to obtain documents by stealth. I am sure that that is not the case, but the drafting has some odd implications.

Do the Government agree that the provision in the clause could authorise the Home Office or the Immigration Service to hold almost any document of a person with limited leave to remain—who would be liable to removal if a future application were refused, or if he overstayed—as well as those here without authority? There is no time limit given for the retention of the documents. It is not even stated that the documents would be returned to the person on removal or on being granted leave. Why is that? Do the Government intend that there should be occasions when documents would not be returned and, if so, what would those occasions be?

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My reason for tabling the amendments is to ask the Government to put on the record their explanation for this clause and to confirm which documents they expect to hold and how and when they should be returned. I beg to move.

Lord McNally: Following the noble Baroness, Lady Anelay, is increasingly becoming like following the school swot. So assiduous is she in preparing herself for her amendments that, looking desperately through the Immigration Law Practitioners Association brief, I could find nothing to delay the Committee beyond the questions she has put.

My noble friend Lord Avebury had the same intentions in the more brutal method of getting rid of the whole clause. The guillotine in the Commons prevented discussion on the matter and that is why the Government want the clause.

Lord Hylton: The Government have a lot to explain in particular about the drafting of Clause 12. Why is the 1971 Act thought to be insufficient in what it says about documents? The Explanatory Notes blandly state that Clause 12 "complements" the 1971 Act. What on earth does that mean?

The noble Baroness, Lady Anelay, rightly pointed out that the clause says nothing about the return of the documents. How long may they be retained and when will they be returned? I most definitely hope that they will be returned before a person is removed from this country, otherwise there surely is a danger of the person becoming undocumented and a further risk of his ending up in a stateless condition. The burden of proof is on the Government.

Lord Avebury: The clause is drafted so that the document may not be owned even by the person to whom it relates. Is that supposed to deal with the fact that passports are generally the property of the issuing authority? I do not know whether that applies also to driving licences, identity cards or student cards. However, does the Minister agree that, as drafted, the clause could refer to a document which bears little relation to the person, such as the bank statement belonging to someone else showing a payment to that individual, and that that document could be seized?

Is it one of the purposes of the clause to legalise the Home Office practice, presently followed, of hanging on to the passports of individuals who send them in with their applications for leave to remain when it is alleged that they entered illegally or are overstayers? Apparently, the Home Office continues to retain the passports even when the person concerned indicates a willingness and intention to depart voluntarily. I can understand that the IND may not be satisfied that the person genuinely intends to leave, but there has to be some procedure for reuniting a departing suspect with his passport.

ILPA has given us a couple examples of how the Home Office is already misusing the power which is supposedly conferred by this clause. Mr C, an asylum seeker, married a British woman in 2000 when he applied for leave to remain as her spouse. The

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application was refused in December 2001 and again when his wife made further representations. In June 2003, he applied to the High Commission in New Delhi for entry clearance to join his wife and was given a date of interview of 10 September. His solicitors then repeatedly asked the Home Office for his passport so that he could return to India for the interview. That, of course, would have meant abandoning the asylum claim he had made. However, the Home Office failed to respond. In December 2003, it told his solicitors that if they gave a few weeks' notice of his intention to travel, it could arrange for him to collect the passport after he had passed through immigration control.

Mrs J tried to stay in the UK with her second husband and their two young children early last year. She had no reply from the Home Office, but was advised that she needed to apply for entry clearance from her West African country of origin. She applied repeatedly but in vain for the return of her passport last summer until finally the Home Office told her that the passport had expired and that it would get her a temporary travel document—a process which took until January 2004.

Considering that the clause relates to persons who may be liable to removal, one would have thought that the IND would be only too pleased to facilitate their departure to cross them off the books. We want to know why those problems arise and why the Government should be given much greater powers when they cannot manage their existing powers to hold on to passports more efficiently and responsibly. How can we be confident that all documents will be returned properly when the person concerned has a need to travel? I hope that the Minister will explain the purpose of the clause, which documents are likely to be retained and the length of time for which they will be held.

10.15 p.m.

Earl Russell: The return of documents is a genuine problem. I was once called in on behalf of a colleague in the University of London, who was Georgian by birth and whose research was in Armenia. He had exceptional leave to remain—there was no question of his bona fides—but the Home Office hung on to his passport, I think, for four years. During that time, his research was brought to a dead halt and his college's income was thereby considerably diminished. That case was solved by calling in Lord Williams of Mostyn, a person of whom there are few equals. But you cannot have a Lord Williams of Mostyn for every case where the Home Office computer lets you down.

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