Special Standing Committee
Thursday 29 April 1999
(Morning)
[Mrs. Marion Roe in the Chair]
Clause 46
Limitations on rights of appeal under section 45
Question proposed, That the clause stand part of the Bill.
9 am
The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien): The clause sets out limitations on rights of appeal under section 45. There will be no right of appeal under the Bill. As in earlier legislation, those whom we have decided to deport on the grounds that it would be
``conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature''
will still have no right of appeal against a refusal to revoke a deportation order when
``the Secretary of State has certified that the appellant's exclusion from the United Kingdom would be conducive to the public good''
or when the Secretary of State personally refuses to revoke the order on that ground.
As before, there will be an equivalent right of appeal to a Special Immigration Appeals Commission. Hon. Members will know that the matter was discussed at some length in recent proceedings in the House and in the other place when new legislation was passed on a Special Immigration Appeals Commission. An appeal against a refusal to revoke a deportation order will still not be exercisable in the United Kingdom, but clauses 47 and 51 will allow an in-country right of appeal solely on grounds of the European convention on human rights or on asylum grounds in some circumstances.
Finally, clause 46 sets out the restriction in the Immigration Act 1971, which prevents a person who is being deported as a family member from disputing statements about family relationships made to secure his entry or stay here.
Question put and agreed ot.
Clause 46 ordered to stand part of the Bill.
Clause 47
Acts made unlawful by section 6(1) of the Human Rights Act 1998
Mr. O'Brien: I beg to move amendment No. 577, in page 30, line 2, leave out
`immigration officer or the Secretary of State' and insert `authority'.
The Chairman: With this we may take the following:
Government amendment No. 578
Amendment No. 272, in page 30, line 5, at end insert
`unless that decision was mandatory under immigration rules'.
Government amendments Nos. 579 to 584
Mr. O'Brien: The Bill provides that a person may appeal to an adjudicator when he alleges that a decision of an immigration officer or the Secretary of State was in breach of his human rights regarding his entitlement to enter or remain in the United Kingdom. As members of the Committee have already heard, the Home Secretary and I have stated on many occasions that the Government are fully committed to ensuring and maintaining a strong human rights policy.
The clause, however, does not achieve that in the way that we would wish. The purpose of our amendments is to widen the circumstances in which a right of appeal would exist when a breach of human rights is alleged. The purpose of amendments Nos. 577, 579, 581, 583 and 584 is to extend the right of appeal on ECHR grounds to decisions taken by an entry clearance officer as well as those of an immigration officer and the Secretary of State. That would cover the circumstances when an entry clearance officer refuses to grant an entry clearance and the person refused alleges that the refusal is in breach of article 8 of ECHR—the right to respect for private and family life. The right to appeal against the refusal of an entry clearance on human rights grounds will be exercisable only from abroad.
I have to admit to some surprise about amendment No. 272. The clause introduces a right of appeal where a breach of the applicant's human rights is alleged. An appeal on such grounds will exist for all applicants, including those who apply when they do not have valid leave to remain. The clause aims to comply with our obligations under ECHR and with the Human Rights Act 1998.
Amendment No. 272 would deny the right of appeal on human rights grounds, when the refusal is mandatory under the immigration rule. As a firm believer in immigration control, I can see the logic of the amendment. However, I am also a firm believer in human rights and as a member of the Government who incorporated the ECHR into domestic law, I believe that the right of appeal in cases in which a breach of human rights is involved should apply even when the refusal is mandatory under the immigration rules. That is because it is conceivable that a rule might be at variance with the ECHR. The Human Rights Act 1998 provides for precisely such challenges.
Therefore, it is right that an alleged breach of human rights should be regarded as more important than what some might argue is—in terms of the whole area of human rights—a technicality of the immigration rules. Indeed, a mere technicality could result in such a situation. I therefore ask the Committee members to reject the amendment.
The purpose of Government amendments Nos. 578 and 580 is straightforward and I ask Committee members to accept them. As debate on earlier amendments made clear, the Government are determined to safeguard human rights in the same way that we are determined to meet our international obligations and to have firm immigration control. We need to get the balance right.
As everyone knows, the Bill concerns immigration and asylum. We wish to ensure an appropriate right of appeal when a breach of human rights is alleged in relation to leave to enter or remain and the refusal of entry clearance.
In its present form, clause 47(1) contains the words:
``relating to that person's entitlement to enter or remain in the United Kingdom''.
That could be widely interpreted. For example, it could be taken to apply to decisions by the Immigration and Nationality Directorate on British citizenship or by the UK Passport Agency on British passports.
Government amendment No. 578 makes clear that the right of appeal under clause 47 relates to decisions under the immigration Acts; that is, decisions on leave to enter, leave to remain and refusal of entry clearance.
Government amendment No. 580 is straightforward and is consequential on the amendments that we have just discussed and agreed. As orginally drafted, clause 47(2) refers to ``a person'' acting
``in breach of another's human rights''.
Government amendment No. 579 replaces ``person'' with ``authority''. As a result, subsection 2 does not make grammatical or practical sense, and the purpose of Government amendment No. 580 is to put that right.
I invite the Committee to reject amendment No. 272 and accept the Government amendments.
Mr. James Clappison (Hertsmere): We come to clause 47, which gives someone a right of appeal on the grounds of a breach of human rights. I listened to what the Minister said about amendment No. 272. However, it is important to investigate how far a new right of appeal will extend.
Clause 47 states that the right of appeal exists in relation to any decision taken by the Secretary of State or an immigration officer. As the Government themselves say, they are streamlining rights of appeal elsewhere in the Bill. However, we are interested in how the new right of appeal extends appeal rights to people who hitherto may not have had such rights.
I do not want to go back over old ground. However, we have already raised that matter in our debate on clause 6, when we said that the Government were taking away what many regarded as important rights of appeal from overstayers who were in breach of conditions. The Government made great play of the fact that, by doing so, they were streamlining rights of appeal and making everything faster and more efficient. However, they neglected to tell us that they were creating a new right of appeal which would be available to all those from whom the old right of appeal had been removed.
Therefore, as we pointed out, instead of people being dealt with under existing deportation proceedings, the new right of appeal created new legal proceedings and new work for the appellate courts. People were simply moving from one queue to another and getting on a sort of legal merry-go-round. However, I wish to make progress, so I will not go over that ground again, as we established that that would happen.
Amendment No. 272 explores another area in which the new right of appeal may be important and relates to decisions by the Secretary of State that are mandatory under immigration rules. The amendment was designed as a probing amendment. However, I have already received a response from the Minister, so I will briefly say what I wanted to probe.
As the Committee knows, some decisions under the immigration rules are mandatory. Section 11 of the Asylum and Immigration Appeals Act 1993 makes provision for mandatory refusals. In such cases, there is no right of appeal for people who do not meet a requirement of the rules or who do not have a document specified under the rules when they apply for leave to enter or entry clearance. As a result, there is a mandatory refusal for such people.
Will those people for whom refusal is now mandatory be given a right of appeal under clause 47? Given the Minister's earlier remarks, I think that the answer to that is ``yes''. That being so, will the Minister give an estimate of how many cases involving mandatory refusal there are under section 11 of the 1993 Act? How many people for whom refusal is currently mandatory will be eligible to have a right of appeal? I do not expect the Minister to have that information at his fingertips, but perhaps he can give an estimate later.
Let me raise another matter to determine how far the right of appeal extends. I genuinely do not know the answer; it is an investigative question, rather than a rhetorical one. How will the measure work in relation to cases in which the adjudicator makes a decision? For example, let us consider someone who applies for leave as a visitor and then applies for an extension of stay as a student. That extension is refused, so the person appeals to an adjudicator, only to have that appeal refused. As the Minister knows, there is a law on what the adjudicator may take into account.
Does someone in such a scenario have the right of appeal under the provisions? I would genuinely like to know the answer to that question. I think that the answer is ``no'', but the Bill does not contain anything saying why such a person should not have such a right of appeal. Indeed, such a person would seek to come within the ambit of clause 47 by alleging that a decision taken by an immigration officer or the Secretary of State had affected their human rights.
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