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Lord Kingsland: My Lords, I am extremely flattered by the Minister labelling my questions as probing. In those circumstances I shall do my best to disguise my deep irritation at his reply.
I accept that there are technical problems with the amendment. Indeed, I think that it could be truly satisfactory only if it had the attentions of the skilled parliamentary draftsman. Nevertheless, I remain perplexed at the fundamental basis upon which the Minister opposes it. I had understood the Government to wish to exclude judicial review from the asylum process altogether. They tried to do it illegitimately by an ouster clause. However, there is a legitimate way to do it, and that is to provide a comprehensive statutory procedure which expedites the process and yet, at the same time, is fair. I simply cannot understand why the process has gone most of the way to achieve that objective but has left this gap at the end. In my submission it is a big gap.
It may be that, in certain circumstances, the administrative court expedites these matters; but the fact of the matter is that an applicant is entitled to three months and he may well come before a judge who is not expert in these matters. There is a real danger that not just the issue before the judge, of deportation, is spoken to by counsel, but there is an attempt to rerun the whole case which featured in front of the tribunal. That would bring the system into disrepute.
I simply do not understand why the noble Lord—I do not, of course, question his good will—is not prepared to make the system absolutely watertight. In those circumstances I feel compelled to ask the opinion of your Lordships' House.
On Question, Whether the said amendment (No. 36) shall be agreed to?
Their Lordships divided: Contents, 46; Not-Contents, 72.
Anelay of St Johns, B.
Attlee, E.
Avebury, L.
Barker, B.
Bridgeman, V. [Teller]
Brougham and Vaux, L.
Byford, B.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Crathorne, L.
Falkland, V.
Fookes, B.
Garden, L.
Geddes, L.
Glenarthur, L.
Greenway, L.
Hamwee, B.
Howe, E.
Jopling, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Lawson of Blaby, L.
Lyell, L.
McNally, L.
Mar, C.
Mar and Kellie, E.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Northbrook, L.
Norton of Louth, L.
Oppenheim-Barnes, B.
Park of Monmouth, B.
Plummer of St. Marylebone, L.
Renton, L.
Renton of Mount Harry, L.
Roper, L.
Seccombe, B. [Teller]
Sharp of Guildford, B.
Shutt of Greetland, L.
Skelmersdale, L.
Stewartby, L.
Wallace of Saltaire, L.
Windlesham, L.
Acton, L.
Alli, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Borrie, L.
Brooke of Alverthorpe, L.
Campbell-Savours, L.
Carter, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hoyle, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jones, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Morgan of Drefelin, B.
Pitkeathley, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Sainsbury of Turville, L.
Sawyer, L.
Simon, V.
Taylor of Blackburn, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Wall of New Barnet, B.
Watson of Invergowrie, L.
Whitaker, B.
Wilkins, B.
Resolved in the negative, and amendment disagreed to accordingly.
6 Jul 2004 : Column 768
Lord Avebury moved Amendment No. 37:
"( ) relate to an issue of objectively verifiable fact, and not questions requiring subjective assessment of evidence or intention,"
The noble Lord said: My Lords, it should be universally agreed that the quality of initial decisions on entry clearance applications, the subject of this clause, is even worse than that for asylum. In 2002, 46.2 per cent of appeals against refusal of visa applications were successful, in spite of the fact that all of those appeals
6 Jul 2004 : Column 769
were dealt with on paper only. The percentage of refusals at the 10 overseas posts with the highest rates of refusal for non-settlement applications increased in 2003 compared with 2002. The independent monitor for entry clearance in her report published last month said that at any particular post:
"Systems need to ensure that any drastic increase in refusing applicants is reflective of the quality of applications rather than a more restrictive regime".
Do the Government accept the recommendation that research should be conducted with that object in mind? If the Minister can give me an answer I would be grateful.
The independent monitor found on the basis of her sample that some 10,000 applicants were wrongly denied the right of appeal in 2002; a third of them students and two-thirds family visitors. She dryly remarks:
"Parliament may wish to consider this when and if consideration is given to removing other rights of appeal".
Now we have the opportunity to do that. The finding shows that even where the criteria are objective, mistakes can be made on a large scale. It would not be sensible to grant the Secretary of State powers that could be used to deny right of appeal where matters of opinion or judgment are concerned, and entry clearance officers cannot even get it right when they have to decide whether a course of study lasts more than six months.
Apparently 3,000 students were denied an appeal because one module of their proposed course lasted for less than six months. Family visitors were denied because they were wrongly categorised as not having a qualifying relationship or because the ECO did not believe that they were related as claimed, an issue that should be determined by appeal.
It is wrong for Parliament to allow the Secretary of State to limit the right of appeal still further when he is not exercising the existing powers in accordance with the law. If we are to grant him an unfettered power to widen the list of those who are to be deprived of appeal rights, we should at least make sure that he can do so only on the basis of objective criteria, as the noble Lord, Lord Rooker, said was the intention.
"The best brains in Whitehall are on the case. If we can clarify and make more transparent what we seek to do, to meet the points raised, we will do so".—[Official Report, 28/6/04; col. 85.]
We on these Benches do not claim to match the expertise of the Home Office. However, if its officials have not come up with a solution so far, even if the amendment does not precisely achieve the objective that we share with the Government, by inserting the words in this clause we lay down a marker and give all those brains an extra few weeks to get it right in another place.
For the noble Lord, Lord Rooker, to suggest, as he did last week, that judicial review provides an adequate alternative remedy for those who may be unlawfully denied their appeal rights is fanciful; it has not provided a remedy for the 10,000 people who were
6 Jul 2004 : Column 770
unlawfully denied their appeal rights against a refusal of an entry certificate in 2002. No legal aid would be available for those proceedings and I do not know of any successful judicial review applications in relation to wrongful denial of entry certificate appeal rights. If it were a realistic option, hundreds of cases would be flooding the courts.
I refer again to the JCHR report because it said in relation to this clause that,
"Not providing a right of appeal in cases where the basis of the refusal is the failure to meet a requirement which turns on an objectively ascertainable fact is likely to be unobjectionable in human rights terms. However, the breadth of the power conferred on the Secretary of State by new clause 29, without specifying on the face of the legislation the types of case in which the power can be used, is a matter of concern. Parliament is being asked to authorise in advance a very wide power which is capable of being exercised in a way which may impede access to an effective remedy or unjustifiably discriminate between different classes of applicant for entry clearance".
It is common ground between ourselves and the Minister that we want the power to be exercisable only in relation to totally objective and ascertainable facts, which is what the amendment would do. I beg to move.
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