Baroness Hamwee
My Lords, I do not want to repeat absolutely everything that the noble Baroness and my noble friend have said, but I am afraid that there will be a little repetition and I hope your Lordships will understand that it goes to emphasise the seriousness of the points being made. Both previous speakers referred to the knock-on effect on future applications of clearance being refused, with the applicant’s integrity being impugned in the reasons for refusal. I think that we should take that very seriously.
There have been many complaints about the lack of clarity regarding what is required at the application stage, with the real reason for refusal not being revealed until the appeal hearing. If that is the case—and I have no reason to doubt what we are hearing—it is bound to lead to additional evidence being presented. That is a simple consequence and not something for which we should be criticising applicants. Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort.
Like other noble Lords, I am keen to know whether the Government have confidence in the internal review process. Regarding confidence, the noble Baroness asked whether improvements will be made. I would add: are the Government confident that improvements have been made since the chief inspector’s review in December? Unless they have, we are presented with a difficulty regarding this proposal. I simply conclude by saying that it is quite clear that there is a problem, and it is quite clear to at least three speakers that this is not the solution to the problem.
The Minister of State, Home Office (Lord Henley)
My Lords, I start by saying to my noble friend Lady Hamwee that I accept the seriousness of the points being made and I hope that I can deal with them in the course of this debate. I also noted what my noble kinsman Lord Avebury said about the right of appeal on race discrimination grounds, which I think is the subject of his next amendment. As it was my noble kinsman who wanted the amendments to be taken separately, I would prefer to deal with that issue when we come to Amendment 148B.
We have three amendments and a clause stand part debate in this group. My noble kinsman has tabled Amendment 148A and has given notice of his intention to oppose Clause 24, and the noble Baroness, Lady Smith, has tabled Amendments 148AA and 155EA.
As we are all aware, Clause 24 makes provision to remove the full right of appeal against refusal of visa applications to visit family members in the United Kingdom. The Government understand that a visit visa can help maintain family links: we granted some 370,000 family visit visas in 2011 and 1.26 million other visit visas in 2010-11. That is also why we issue, on application, longer validity multiple entry visit visas in some cases, which offer convenience to the family visitors who are granted them. The clause is not in any way about stopping people visiting their family members in the United Kingdom. The rules to qualify for entry are the same for both tourists and family visitors. Any family member who meets our immigration rules will be granted that visit visa.
Lord Rea
Before the Minister sits down, will he answer a simple question? When an appeal is refused under the new rules, he says that it will be open to the applicant to make a new application, benefiting perhaps from the reasons given for the asylum refusal. But that will surely add enormously to the load on the border control officers who are controlling applications for visas in the first place. Will that not give them a huge overload? Anyway, are there not rules that specify the length of time after the first application is refused before a second one can be made? What sort of period are we looking at? Is it six months, a year or two years? Is there a period at all?
Lord Henley
My Lords, we are finding that, with a large number of appeals, the point that they are appealing on is in effect new evidence that they did not put in their original application. We suggest that it is cheaper to make a new application than to appeal. It does not clog up the appeal system if they make a new application, bringing in that new evidence. Therefore, the appropriate process is to use the new application route rather than clog up the appeals system. That is why I was emphasising that, despite the original intentions of the system brought in by the Government of whom the noble Lord is such a distinguished supporter, it has clogged up the system in a manner that we do not think is appropriate. The new application would be a far simpler, cheaper and better way of dealing with these matters.
Lord Henley
A new application can be made immediately. That would be far quicker for the applicant than waiting for possibly eight months for the appeal to be dealt with. A new application can be dealt with within 15 days. That is a better deal for all involved, particularly if they are coming over for a family event such as a wedding. In eight months, the whole thing might be over: it would depend on how much advance notice they had for the wedding.
Baroness Hamwee
My Lords, as the Minister said, the fee for a new application is a little cheaper than that for an appeal. He quoted a figure for the savings that the measure would achieve. I have just had a look at the impact assessment—although I may not have the right piece of paper with me—which gives in narrative form an explanation of what is proposed, but I cannot find any figures in it for this particular clause.
The Minister may well not have the detail with him at the moment. If he does not, perhaps he could write to noble Lords to unpack that figure, which I think was £102 million, although I might have got that wrong. In any event, when it comes to the amount that the Government expect to save by this, I am having a little difficulty in putting all this together in a mathematical form.
Lord Henley
My Lords, impact assessments are always somewhat obscure documents, as my noble friend and others will well understand. I do not have the impact assessment in front of me at the moment but I think the figure I quoted was savings over 10 years of something like £103 million. My noble friend says £102 million, but what is £1 million between friends? The best I can do on this particular occasion is to offer to write to my noble friend with greater clarity about the impact assessment and what we reckon the savings will be. We think that there are very considerable savings to be made here and that the process is not working as it should or as it was originally intended because there are far many more appeals coming in. A new application would be a simpler way of processing these matters.
Baroness Hamwee
My Lords, it might help if I just say that it seems that an explanation for any savings may be with regard to the time that officers put into dealing with either an appeal or an application. That in itself raises issues. I make that point now in case the answer comes back simply in terms of figures, when there will need to be an explanation if we are all to understand. However, we all agree that the system is not working very well.
Lord Henley
My Lords, I am reminded that the figure I quoted originally was £107 million, so we are talking about a difference of £5 million between myself and my noble friend, which is real money. However, I still promise to write to my noble friend on these matters and to try to bring her greater clarity.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister seeks to reassure me and I wish that he could. However, unfortunately, he has not. There are a number of issues. If, as he points out, it would be quicker, cheaper and easier for everybody concerned—the Government and all the applicants—for there to be no appeals process, why does everybody not welcome this with open arms?
As I pointed out in my earlier comments and as was pointed out by the noble Lord, Lord Avebury, and the noble Baroness, Lady Hamwee, it would be quicker, cheaper and less onerous if so many wrong decisions were not made in the first place. I imagine that those appeals that were not upheld were much easier decisions to make if the application was turned down and the appeal rejected. I am very concerned about those where a wrong decision is made and the appeal is successful because of the wrong decision. I know the noble Lord says that in many cases it is because new information is provided, but it would be very simple to make it absolutely clear what information is required in the first place. That would make the whole application process much quicker and more efficient.
The other problem with making new applications is that there is no opportunity for advocacy or for people to make representations on an applicant’s behalf. I made the point earlier that if somebody is refused and the decision-maker says that they gave inaccurate or wrong information, they can be barred for 10 years. The Minister says they can apply next year and the year after, but in those circumstances they will not be able to apply for 10 years. Even though the decision may be based on inaccurate information, and the person who has been refused a family visitor visa has been told the information they gave was wrong and misleading, there is no opportunity to appeal that and they cannot make another application for 10 years. That seems to be a gap in the noble Lord’s reasoning.
I wonder whether he is dealing with this problem from the wrong end. If we deal with improving the quality of decision-making, in some cases by making it easier, and so more straightforward, for applicants to know what is required of them, we would see this logjam that he talks about removed. To try to deal with the logjam by merely removing the right to appeal does not seem to me to be the right way round.
I was surprised that he drew any comfort from the chief inspector’s report. I think that it is quite damning. Basically, he says, “I make these recommendations, people accept them, but it does not get any better”. Before the Government take an action such as this, they should seek significant changes and improvements in decision-making. I do not lay it all at the door of poor decision-making. However, he tells me that every decision is reviewed by a senior manager, so clearly something is wrong when so many appeals succeed despite that. Something in the process is going badly wrong.
I will not press my amendment today. I am grateful to the Minister for pointing out the deficiencies in my drafting but, despite his very brave attempts, I am not really reassured.
Lord Henley
My Lords, before my noble kinsman decides what to do with his amendment—obviously, it is his decision—I want to pick up one point. The noble Baroness says that an awful lot of appeals are the result of wrong decisions. I accept that some are the result of wrong decisions, but as she would accept, an awful lot are the result of the wrong information coming forward, and that is something far better dealt with by means of a new application. Obviously, we might have to look at how to ensure that people get the right information into their original application so that the correct decision can be made. That is a matter of making sure that we have the right procedures in place and I will certainly be prepared to look at that. However, I do not think that she should imply that all the problems are down to bad decision-making; an awful lot are the result of new information coming forward. That is why there are so many appeals.
Baroness Smith of Basildon
If the noble Lord reads Hansard and looks at my previous comments and at what I have just said, he will find that I acknowledge that sometimes a wrong decision is made because the right information is not supplied. Indeed, I quoted the chief inspector as saying that in 16% of the cases reviewed, applications had been refused on the basis of a failure to provide information, but the applicant was not aware of what information was required. I acknowledge that important point. If the Minister were to take that back to the UK Borders Agency and act on it, that would be an extremely positive step, so that all applicants are made fully aware at the time of application what information is required.
Lord Henley
My Lords, without knowing more about the sort of cases that my noble friend refers to, I do not think that I can respond to him at this stage. The more general point, and the reason for bringing this clause forward, is that we feel that many of the applications can be dealt with by a new application and so the process of a right of appeal is not the right way forward. We are bringing it into line with other parts of the immigration system. In the main, we have found that so many appeals have been on the basis of new information. This is a more appropriate way of dealing with it.
Lord Avebury
My Lords, I dread to think of how many occasions I have sat here and listened to Ministers from the Front Bench saying that they will make amends for the all the criticisms that have come from the chief inspectors of the UK Border Agency or their predecessors; yet on the next occasion we debate precisely the same thing. It is with some reluctance that one accepts the assurances that the Minister has given that the Government are going to sort out the UK Border Agency so that fewer false decisions are made. I am sure that he has been told by the officials that they have this matter in hand but the benefit of past experience shows us that we cannot rely on that.
In relation to the suggestion made by my noble friend Lady Hamwee, that there should be some mechanism whereby, if the entry certificate officer needs some further information that the applicant could not possibly have known would be required on his original application, that should not be the cause of a refusal but of a communication from the ECO to the applicant to say exactly what kind of information is needed and that that would be considered in making the decision. There is no such mechanism at the moment and I am not satisfied that the assurances the Minister has given, that he will look at the proposal, are sufficient. My suggestion is that we could perhaps think about this before Report and come back to it then, to hear further from the Minister about what progress he has been able to make on my noble friend Lady Hamwee’s suggestion.
Even so, there remains a problem: that the applicant has a black mark against them in the Home Office records, which may have deleterious effects on any further application that he makes. When he comes to make another visit and officers look up what happened in the past, they will see that he has had a refusal. In the case that I mentioned of Mrs N in Beirut, who made a number of visits to her husband in London, no problem was ever encountered. It was rather like the case cited by my noble friend Lord Hussain. Quite simply, they granted the entry certificate. She came to visit her husband in London and went back to Beirut afterwards, for the very simple reason that she had an 89-year-old mother there for whom she is the primary carer, as I explained. That was known—it must be on the files—yet on this occasion, after she has been from Beirut to London perhaps a dozen times without any problem, suddenly she was refused.
Mrs N’s solicitor advised her not only to put in a fresh application, which my noble friend thinks is the ultimate solution, but to appeal because she does not want a stain to appear on her record. That is not going to vanish. There is no way in which you can rub off a record of a refusal, except by means of an appeal. Although people may be able to get permission more quickly to come here by putting in a fresh application, as my noble friend says, that application will have to be considered in the light of the fact that there is a record of a refusal. It is less likely that that person will be able to come here in future. The solution that my noble friend has suggested is not the answer and I say again that we will have to return to this on Report, when I hope we can make some further progress on it. Meanwhile, I beg leave to withdraw the amendment.
Lord Avebury
My Lords, the specific race discrimination ground of appeal in immigration cases now relates only to Northern Ireland. The 2002 Act continues to allow an immigration judge to find an immigration decision to be unlawful by reason of race or other unlawful discrimination, because Section 84(1)(e) provides a ground of appeal,
“that the decision is otherwise not in accordance with the law”,
but only where he or she has jurisdiction to hear the appeal in the first place.
The importance of the specific race discrimination ground of appeal is that it is one of two statutory grounds that generally preserve an appeal right that would otherwise be precluded by the 2002 Act. Thus, in the various and complex sections restricting appeal rights in that Act, the following general formula is repeated several times: that the relevant restriction,
“does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c)”.
This general formula previously preserved the right of appeal against an immigration decision, where the would-be appellant sought to challenge the immigration decision on race discrimination or human rights grounds. This has particular relevance to Clause 24 of the Bill, by which it is intended to remove the right of appeal against the refusal of a family visit visa. The provisions that Clause 24 amends will continue to retain the general formula intended to preserve a right of appeal on race discrimination or human rights grounds. Preserving the right of appeal on those grounds is clearly intended, as is stated by paragraph 373 of the Explanatory Notes. It was also made clear on the UK Border Agency website when the Bill was first published, as well as in a more recent announcement on that website concerning changes to remove the right of appeal for aunts, uncles, nieces, nephews and cousins against a refusal of a family visit visa.
However, the omission of the relevant words in Section 84(1)(b) undermines all this. The general formula now preserves appeal rights only where the appeal is brought on human rights grounds in England and Wales or Scotland, and on both race discrimination and human rights grounds in Northern Ireland. The Immigration Law Practitioners’ Association has raised this with the Home Office, and it has been confirmed that this was not intended. ILPA informs us that the Home Office is looking at how best to remedy the omission, and we hope that it can be done while this Bill is in progress. Ideally, the Government will be able to say how and by when this omission is to be corrected in answer to this amendment, and we would then expect to see it implemented on Report.
The events that led to the inadvertent omission of the specific race discrimination ground of appeal highlight once again the notorious complexity of immigration law, including the highly complex statutory appeal provisions. We have just enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in the face of widespread concern both within and outside Parliament about the removal of legal aid in areas such as immigration, which, as the noble Lord, Lord Pannick, said on the last day of debate in the House of Lords before enactment,
“will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law”.—[Official Report, 25/4/12; col. 1797.]
If the Government cannot even foresee the consequences for the statutory immigration appeals scheme when they draft legislation with an impact on that scheme, they can hardly expect individuals without legal advice or representation to understand the rules and to know what appeal rights they still have, if any. I beg to move.
Lord Henley
My Lords, my noble kinsman has spotted something, and it will be suitable for me to intervene at this stage and save ourselves a debate. As he has explained, Amendment 148B is intended to reinstate a right of appeal against an immigration decision on race relations grounds. Such a right of appeal existed prior to the commencement of the Equality Act 2010, but many noble Lords will remember that the latter stages of that Act were rushed through rather fast in the run-up to the election, and that right was inadvertently removed by the consequential amendments made under that Act. That might encourage us to think more carefully about the wash-up process in the future because of the mistakes that can creep in.
The Government’s stated policy remains that there should be a right of appeal on race relations grounds, and we agree that this appeal right should be reinstated. My noble kinsman asked how we can do that. We do not apparently need primary legislation to rectify this problem as we could effect the necessary change through secondary legislation made under the Equality Act 2010, a point that has been recognised by the Immigration Law Practitioners’ Association in its briefing on this amendment.
I am happy to give a commitment that the problem will be rectified and to explore further over the summer —my noble kinsman will be aware that we have quite a few months before we get to Report—how best this might be achieved. In light of this reassurance, I hope that he will withdraw his amendment.
Lord Avebury
I am happy to withdraw the amendment on the basis of that assurance.
Baroness Smith of Basildon
My Lords, I, too, was sent a brief with the same information by the Immigration Law Practitioners’ Association, which briefed the noble Lord, Lord Avebury, on his amendments. There is a case here that is of interest. There is not much that I can add to what the noble Lord has said but I am interested to hear the Minister’s response, particularly to Amendment 148C. I am concerned about the arrangements for young people and children, particularly those aged under 16. My only comment is that I am willing to listen to the noble Lord’s response to those amendments.
Lord Henley
My Lords, I will deal with the amendments in the same order as my noble kinsman did. Amendment 148C would create a right of appeal whenever someone is refused asylum but is granted any form of leave. It would also have the effect of providing for multiple rights of appeal against the refusal of asylum for a group of cases where no right currently exists, as there will be a right of appeal every time a fresh grant of leave is given. That is possibly an undesirable position.
The original purpose of Section 83 of the Nationality, Immigration and Asylum Act 2002, which, again, the noble Baroness will well remember, was to provide a right of appeal where an asylum application has been refused but the applicant was granted more than 12 months’ leave. Normally when a claim for asylum is refused, there is a right of appeal against the subsequent removal from the UK rather than against the refusal of asylum itself. The appellant can raise asylum grounds as part of that appeal against his removal. However, where someone has been refused asylum but granted leave of less than 12 months, removal directions will not be set and therefore no appeal right arises. In these cases, the short duration of the leave necessarily means that the case will be considered again quickly, reducing the need for an appeal. Where there are no grounds to grant asylum but there are other valid reasons why someone cannot return to their home country, another form of immigration leave is sometimes granted. If leave is granted for more than 12 months, Section 83 of the 2002 Act provides for a right of appeal against the refusal of asylum.
Amendment 148C would remove the 12-month restriction and would create a right of appeal against the refusal of asylum, even where a short period of leave is granted. It is not unusual for these short periods of leave to be extended more than once, and recent case law means that the amendment would create a right of appeal against the earlier refusal of asylum every time further leave was granted. If a decision to remove the applicant from the UK was ultimately taken, a separate right of appeal would arise against that decision. The amendment would possibly undermine the intention of the existing asylum appeals framework, which aims to prevent multiple, fruitless appeals being used to prolong someone’s time in the United Kingdom, often at significant cost to the taxpayer.
My noble kinsman and the noble Baroness asked about the impact on children, particularly unaccompanied children, who are refused asylum. They are normally granted leave until they reach the age of 17 and a half. The 12-month restriction therefore means that some unaccompanied children will be refused asylum and granted less than 12 months’ leave, which means that they do not get an appeal right under Section 83 of the 2002 Act. Those children may not have their asylum considered by a court for more than a year after they first claimed asylum. That is an unfortunate consequence of the otherwise very sensible 12-month restriction, and I can assure my noble kinsman that we will review our policies concerning the length of leave granted to children to ensure that there are no unintended consequences of the sort that he and the noble Baroness implied.
Amendment 148D concerns the Secretary of State’s powers to certify, under Section 94(7) of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach his or her human rights. The effect of the certificate in such cases is that an appeal can be brought out of country only after that person has been removed. This provision is designed to prevent spurious appeals being used to delay removal in hopeless cases. When determining whether such persons may be removed, the third country must be a place from which the person will not be sent to another country other than in accordance with the refugee convention; we want to make that clear. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached. I believe, therefore, that Amendment 148D is unnecessary because the courts are already able to consider whether the person’s human rights may be breached by way of judicial review challenging the issue of that certificate. Once the person has been removed to the third country, an appeal may be brought and refugee convention issues can be considered. In light of that assurance, I hope that my noble friend will feel able to withdraw his amendments.
Lord Avebury
My Lords, I am grateful to my noble kinsman for what he has said about Amendment 148C. I look forward to hearing further from him, perhaps on Report, about the results of the policy review on the length of permission granted for a child and the effects of an appeal being heard after the child has reached the age of adulthood. I hope that I may take it, from what he said, that we will be able to have a more concrete idea of what the Government propose to do to remedy the situation before Report. If legislation is required to remedy it, we must not miss the opportunity presented by the Bill.
On Amendment 148D, the question of whether we need changes in the statute to cope with the cases that I have mentioned, where it was found that the presumption was not justified, is a matter on which I need to take further legal advice, so I will not pursue the matter any further at this point but may well return to it on Report. I beg leave to withdraw the amendment.
Lord Henley
The noble Baroness knows that my legal knowledge is equally limited but my understanding also is that this is a relatively simple tidying-up amendment, and I congratulate my noble kinsman on doing it. If I have understood him properly, he is trying to clarify that certifying a decision under Section 96 of the Nationality, Immigration and Asylum Act 2002 has no effect on any pending appeal. If that is correct, we would want to look at it. If he is willing to withdraw his amendment I am more than happy to consider the matter further and to report back to him in advance of the next stage. Because of the timing of this Bill we are in the very happy position of having some months, even with party conferences, between this stage and the next stage of the Bill—although, sadly, some of us might miss our own party conference because of the date of the next day in Committee on the Bill. We will look at this and if my noble kinsman is prepared to withdraw it, I will get back to him and see what we can do.
Lord Lester of Herne Hill
Perhaps I may ask the noble Lord a question. I have been following these debates as best I can. I have been at the Bar for a very long time. My wife is an immigration and asylum judge. I note that the Court of Appeal has begged the Government to codify and simplify the morass of unintelligible legislation which only my noble friend Lord Avebury truly understands. Is there any hope that once this Bill becomes law the Government will heed the court’s plea—to which I would add people such as my wife who, as a judge, has to interpret and apply this law—so that even if ordinary men and women cannot understand it, at least ordinary lawyers may be able to do so?
Lord Henley
My Lords, I would be the first to say to my noble friend that he is not an ordinary lawyer and nor is his wife—they are both very eminent lawyers. If they say it is a morass of unintelligible law obviously it must be. However, I am not sure it is as unintelligible as he claims. Obviously, we will look at this. As with all law, if consolidation can make matters simpler it is something that can be looked at. If it is a matter for departments—in this case the Home Office—we must look at it. As my noble friend will be aware, finding time for any legislative changes is always difficult.
Lord Deben
I hope that my noble friend will accept that it is not just a matter of making the law intelligible for lawyers. The people who suffer—if I may put it like that—under the immigration laws are people who ought to feel, at least as far as they can, that they have been dealt with fairly. We have had examples already this afternoon of situations that are so complex that it would be very hard to explain to one of these people that they have been dealt with fairly. If they leave this country I would be much happier if they said, “Of course, I ought to have got in but actually I was dealt with fairly”, than if they go away feeling, “I really don’t know why the blazes I wasn’t allowed in”. It seems to me hugely important that we get this formulation right.
Lord Henley
My noble friend is absolutely correct. It is always difficult to make sure that any law is understandable to the ordinary man or woman in the street or the ordinary man or woman on the Clapham omnibus. It is obviously, as our noble friend Lord Lester of Herne Hill put it, sometimes difficult to make the law intelligible to even the extraordinary lawyers let alone the ordinary ones. We try to make sure that it is as intelligible as possible but, as I think my noble friend Lord Lester is aware, even with some of the simplest laws one lawyer will take one view and another will take another view. These matters are often argued in the courts at some considerable length. We try to do what we can to make things as simple as possible. I hoped that this would be a very short amendment, and I hope that the reassurance that I offered to my noble kinsman will be sufficient for him to withdraw the amendment.
Lord Avebury
The important thing is that my noble kinsman has agreed to tidy up Section 99 of the Nationality, Immigration and Asylum Act 2002. I am most grateful to him for that assurance and beg leave to withdraw the amendment.
Lord Henley
My Lords, we are speaking to my noble kinsman’s Amendment 148F, to which is attached his Motion relating to whether Clause 25 should stand part of the Bill, his new Amendment 149A and Amendment 149 in my name and his—which my noble kinsman seemed to think he got down first. I presumed I had got it down first, because my name is at the top of the list. However, we will not argue about that point because I presume that my noble kinsman is grateful for the fact that we have both come to the same conclusion on that, and I will deal with it in due course.
I say to the noble Baroness, Lady Smith, that I have also seen the briefing from the Immigration Law Practitioners’ Association on these amendments and others. I will therefore, I hope, address most of the points that have been put forward by noble Lords on these matters in my response. I will deal with the questions that she has raised and those put by the noble Lord, Lord Judd. Obviously, again—because I presume my noble kinsman is not going to press these amendments, other than government Amendment 149 —we can come back to this on Report. The noble Baroness is making signs of a writing nature at me. I will, of course, write to her in due course; I thought that she was asking for the bill—but not this Bill.
I will first set out what we think Clause 25 does and then say something about the amendments as appropriate. Clause 25 addresses the current anomaly in legislation that allows an individual to return here to appeal a decision to cancel leave, despite being excluded by the Secretary of State—that is, my right honourable friend the Home Secretary—from the United Kingdom. Exclusion is obviously a key tool in tackling those who seek to cause harm to the United Kingdom; we have to remember my right honourable friend’s key and important role in the safety of the kingdom. Exclusion is used to tackle a range of conduct, including terrorist-related activity, serious criminality and engagement in unacceptable behaviours. The exclusion power is used sparingly and is reserved for those who are considered to be the highest-harm cases. It is therefore crucial that, once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision, taken only to give effect to the exclusion and the accompanying appeal right it brings.
Of course, any such decision by my right honourable friend should be open to challenge and review by the courts. However, the Government believe that, given the nature of these cases, it is—despite what the noble Lord, Lord Judd, was saying—wholly reasonable that judicial scrutiny of the decision should be carried out while the individual remains outside the United Kingdom.
Clause 25 therefore seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The effect of that is that, upon certification, where the individual is outside the United Kingdom at the time of the decision, the in-country right of appeal under Section 92 of the 2002 Act no longer applies to such a decision and is replaced by an appeal from outside the United Kingdom only.
We accept that the power to remove appeal rights from the UK to abroad must be reserved for the highest-harm cases; this is obviously not something that can be done on a whim. This is why we have restricted such a change to individuals whose presence in the UK is certified by the Secretary of State to be non-conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of the decision.
Government Amendment 149, which is also in the name of my noble kinsman, seeks to remove subsection (4) of Clause 25. My noble kinsman has identified an issue of concern, which we want to address with our amendment. Subsection (4) would result in the lapsing of appeals against a cancellation of leave which are certified under the new certification power. These individuals will be left without any appeal right. That is not our intention. The intention of subsection (4) was to provide for an initial in-country right of appeal to lapse in the event that the decision to cancel leave was taken before the exclusion decision. However, as drafted, subsection (4) would cause all appeal rights to lapse. Removing subsection (4) ensures that all cases falling within the provisions of Clause 25 will have an out-of-country right of appeal against the decision to cancel leave.
Lord Henley
Baroness Northover
My Lords, Amendment 149B, tabled by my noble friend Lord Avebury, seeks to remove immigration and nationality appeals from the provisions in Section 13(6) of the Tribunals, Courts and Enforcement Act 2007. Similarly, Amendment 149C seeks to remove a narrower class of appeals—those which relate to the refugee convention or the European Convention on Human Rights—from the provisions in that section. Section 13(6) of the 2007 Act enables the Lord Chancellor to set out, by order, the test which applications have to meet for permission to appeal to the Court of Appeal from the Upper Tribunal. That order-making power has been exercised so that where a party seeks permission to appeal on a point of law against a decision of the Upper Tribunal, the second-tier appeals test will be applied, as noble Lords have said. That test requires that in order to grant permission, the Upper Tribunal or Court of Appeal has to consider that the proposed appeal would raise an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear the appeal.
The Government, like the courts themselves, fully appreciate the gravity of the subject of these appeals. Amendment 149C is concerned with appeals of the most serious kind, where the claim may be that if the appellant is returned home they may face torture or even death. Such cases undoubtedly deserve what has been called anxious scrutiny. In the Government’s view, that is what the system currently provides. At present, if a person makes a claim to asylum in the United Kingdom, for example, and that claim is rejected, he or she can appeal to the First-tier Tribunal. If that tribunal dismisses the appeal, there is a right of appeal to the Upper Tribunal. Alternatively, if the appeal is allowed, the UK Border Agency may appeal to the Upper Tribunal.
Both the First-tier Tribunal and the Upper Tribunal are composed of judges who are experts in this most sensitive of subjects. Therefore, if the Upper Tribunal rejects the appeal, it seems right to the Government that the test to take the matter to a third judicial body should be high. The courts have been clear that there is no case for saying that the UK would be in breach of its international obligations if appeals from the Upper Tribunal are available only in these circumstances. At present, all appeals from the various jurisdictions of the Upper Tribunal to the Court of Appeal are considered under the second-tier appeals test. That same test, under the Access to Justice Act 1999, also applies where there is an appeal against a decision of the High Court and where the latter was acting in its appellate capacity.
The Government believe that the same level of consideration should be given to all types of appeals, even to the sorts of cases with which Amendment 149C is concerned. One reason for this is that not all claims which are made are substantiated when they are put to the test. The second-tier appeals test gives judges appropriate control over the cases that reach the Court of Appeal. Removing this test could cause the Court of Appeal to be inundated with cases that may not justify their consideration. This would cause delays in the provision of justice for the whole range of decisions that are brought to the Court of Appeal and put further pressure on the judicial resources available to that court.
The courts have made a number of important judgments recently that help to clarify the application of the test for cases seeking permission to appeal to the Court of Appeal in the immigration and asylum context. For instance, if a person maintains in their application for permission to appeal that they will be persecuted if they are returned home, that will be a matter which the Upper Tribunal can consider in determining whether the “some other compelling reason” limb of Section 13(6), is met in reference to the second-tier appeals test. If it refuses permission, it is open to the appellant to apply direct to the Court of Appeal for permission.
There is no doubt that the class of cases dealt with by Amendment 149C can be both complex and of the utmost importance. It is our belief that the current structure, including applying the second-tier appeals test in appeals from the Upper Tribunal to the Court of Appeal, is the right one. That was of course the position of those who are now the Opposition when they were in government, as they argued the case then. As we consider that the case is not made out to change the test for the most serious kinds of cases—and as we also heard the other day from the noble and learned Lord, Lord Woolf, in defence of the Upper Tribunal’s track record in what has happened since this was debated a few years back—it follows that we do not accept that that test should be removed for the wider category of cases covered by Amendment 149B. I therefore urge my noble friend to withdraw this amendment.
Lord Avebury
I cannot say that I am not disappointed by that reply, because, as I said initially, there have been cases where people at very serious risk of torture have not been allowed to appeal to the Court of Appeal. For example, in the case that I mentioned of PR (Sri Lanka), the individual had been tortured in Sri Lanka and that was acknowledged by the courts but not deemed to be sufficient reason for the second-tier appeal test to have been satisfied. There have been conflicting decisions by the courts on the second-tier appeal. The only safe thing would be to ensure that where considerations of human rights are involved, as they were in the case of PR, the right of appeal to the Upper Court should be retained and the second-tier appeal test should be modified in the manner that I suggested. However, since my noble friend has suggested that we defer this matter until Report—
Baroness Northover
Perhaps I might point out to my noble friend that it is not the case that the second-tier appeals test does not allow for materially wrong decisions to be challenged by the Court of Appeal and that in the JD (Congo) case, three of the four appellants seeking permission were granted it. The immigration and asylum chambers of the First-tier Tribunal and the Upper Tribunal have been set up specifically to deal with these kinds of matters. My noble friend mentioned the complexity and sensitivity of these kinds of cases, and I should have answered by addressing that point.
Lord Avebury
I mentioned the case of JD (Congo) in my first speech—I have it in front of me—and I accept that in that case, the second-tier appeals test was found to have been met. However, there are other cases in which the circumstances were equally compelling and where that test has not been met. It was in the hope that we would clear up that ambiguity in how the second-tier appeals test is interpreted that I tabled my amendment. As I was about to say, we will have to reflect on this and perhaps come back to it on Report. Meanwhile, I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, in the clause that my amendment seeks to address the Government are proposing to extend vastly the powers of the UK Border Agency’s customs and immigration officers. I do not necessarily oppose this in principle. We have to understand the very challenging nature of the work undertaken by border control. The nature of international and global threats is constantly changing and we have to pay tribute to the immigration officers. They have a difficult job, they work in a challenging environment, and they have suffered cuts to their numbers in the last couple of years. However, we need to look at two things.
First, such an extension of powers would need to be properly justified and explained to your Lordships’ House. Secondly, we need to ensure that those exercising those powers have the necessary skills, rank, and remit, in order to ensure public confidence in the UK Border Agency as well as confidence within it. Also, is it up to it? I do not in any way mean the individual border officers, but rather whether they have the resources, training and capacity to undertake those roles.
Clause 26 extends a number of powers to immigration officers, both under the Regulation of Investigatory Powers Act and the Proceeds of Crime Act. Those powers are significant: the power to authorise the use of covert surveillance—“intrusive surveillance”, according to the Bill—and property interference such as wiretapping and installation of listening devices, as well as powers to authorise confiscation and detained cash and money-laundering investigations. These are serious new powers to give to immigration officers. They are currently only authorised by senior officers, and they are exercised by experienced and specialised professionals. Our amendments seek to ensure that if those powers are to be extended to immigration officers, they will be exercised with the same level of expertise and seniority.
When I first looked at the Bill it seemed to contain very wide-ranging powers, and there is a case for the Government to justify those. However, I looked at the Explanatory Notes, and the amendments seek to put on the face of the Bill what is in them. The Explanatory Notes are very helpful in this regard, because they make clear—I refer to page 64 and paragraph 380 in particular—that the intrusive surveillance available under RIPA should only be extended to officers working within the criminal and financial investigation teams. The paragraph says:
“The purpose of this amendment”—
which we are talking about, and which is in the clause—
“is to provide for immigration officers working in Criminal and Financial Investigation (‘CFI’) teams in the UK Border Agency … to be able to apply to exercise property interference powers equivalent to those already used by customs officials”.
It cites the Act and legislation under which they can use them, and states that:
“CFI teams have responsibility for investigating smuggling of drugs, firearms and weapons and organised immigration and customs crimes”.
If, as I understand from the Explanatory Notes, the Government intend these powers to be used only in the specific context of criminal and financial investigation by immigration officers, then it would be helpful to state that in the Bill and be very clear about it, rather than allowing the scope—as seems to be the case at the moment in this clause—for any immigration officer to exercise those powers. I am concerned about whether training and support could be available to all immigration officers, and whether it would be for all staff or only for those above a certain rank. That gives me some cause for concern, because if all immigration officers had that power, there is then the understanding that any immigration officer could exercise that power, even without the training or the appropriate rank or experience. What is in the Explanatory Notes is therefore better than what is in the Bill, though that may be an oversight in drafting.
Amendments 149CB and 153B, which follow Amendment 149CA, are intended to probe the Government’s justification for these highly specialised powers. These probing amendments remove Clause 26(4) and (5) and paragraphs 14 to 39 of Schedule 14, which extend to the UK Border Agency’s chief operating officer the ability to authorise immigration officers’ powers of investigation into confiscation, detained cash and money-laundering under the Proceeds of Crime Act. At present, the only individuals who can exercise those powers are accredited financial investigators, police constables or Customs officials, and in the case of confiscation investigations only SOCA officers—although SOCA has now been absorbed into the National Crime Agency. Notwithstanding police constables, all these individuals work within the specific field of serious financial and economic crime. I assume that once the National Crime Agency is up and running and fully established, it will have responsibility for those crimes.
The Government need to explain and justify for what purposes immigration officers also need such powers. What will be the relationship between the immigration officers who have this power and the National Crime Agency? Earlier clauses in the Bill refer to the relationship between the National Crime Agency and local police forces, and the powers of notification. If immigration officers are given new powers, there should be the same kind of co-operation and information-sharing between immigration officers, who have such powers, and the National Crime Agency, otherwise there will be a gap to fall through; both groups could end up investigating similar crimes or there could be an overlap of crimes. It would be helpful if the Government could clearly explain for what purposes immigration officers need these powers, and why, with the existing powers they have, there could not be co-operation with the National Crime Agency.
Paragraph 381 in the Explanatory Notes says that:
“At present, the UKBA is able to authorise applications from immigration officers investigating serious organised immigration for directed surveillance and Covert Human Intelligence Sources … and the ‘senior authorising officer’ can authorise applications for intrusive surveillance”.
However, this amendment takes it one stage further, so there needs to be a little more justification and understanding. I can understand the issue around the crimes, but I am not clear why any immigration officer could have those powers—which appears to be the case in the Bill, though perhaps not in the Explanatory Notes. Why is it not sufficient to extend the powers of current specialised officers, or to work with them and the National Crime Agency? I would also be interested in some information on the training that would be given to the specialised officers. Would there originally have been any expectation that they should have any specialised skills, or would it have been something that any immigration officer could take on if they had had the appropriate training?
Finally, does the UK Border Agency have the capacity to take on this role? The following amendment, in the name of the noble Lord, Lord Berkeley, which we will discuss shortly, covers a number of issues including queues at Heathrow, where we have seen enormous pressures put on the staff. Given the current wording of the Bill, and in particular that it would seem to apply to any immigration officer, I worry about giving very wide-ranging additional powers and responsibilities to a border agency that, as we heard earlier, is struggling to maintain its current responsibilities. It has had to draft in officers from the Ministry of Defence and civil servants from other parts of the Government. I want an assurance that anybody drafted in on a temporary basis—to help out with extended queues at Heathrow, for example—would not be given the powers of entry and surveillance as outlined in the Bill.
It would be helpful if the Minister could give some answers to those questions. The new powers given to the UK Border Agency are very extensive, and it would be interesting to know the Minister’s justification of them, and how he imagines that they will operate.
Lord Henley
My Lords, I am grateful to the noble Baroness for setting out what she is trying to do in these amendments, which I take it are merely probing amendments, as I believe she said. I am also grateful that she paid tribute to the very difficult job that immigration officers do. However, she probably used rather unfortunate language when she asked whether they were quite up to it, although she qualified what she meant by that. She then said that she thought that the Explanatory Notes were possibly better than the Bill itself. Sadly, we do not have legislation by Explanatory Note. However, I am always more than happy to look again at the wording of individual clauses, should it be necessary. Again, as always, we have any amount of time to deal with these matters between now and Report and the further stages as this Bill proceeds through Parliament.
Put very simply, the noble Baroness is asking what Clause 26 is about and why we think it is necessary. The proposed extension of powers is saying that it is necessary for the United Kingdom Border Agency to have extra powers to respond robustly to serious and organised crime. Customs officials within the UK Border Agency are already entitled to apply for intrusive surveillance under RIPA and for property interference under the Police Act for the purpose of investigating customs offences. This clause will rightly extend these powers to immigration officers for the purpose of investigating serious and organised crime.
I turn to the amendments and, in doing so, I hope that I will answer some of the points. I suspect that the noble Baroness has not quite got the wording of the amendments right because Amendment 149CA achieves the opposite effect to the one she wants. It would require the authorising officer, who is responsible for authorising applications to interfere with property under Section 93 of the Police Act 1997, to be a senior official who is working within a criminal and financial investigation team of the UK Border Agency. Although I suspect it may not have been the intention of the noble Baroness, the effect of this amendment would be to restrict and potentially lower the grade of the authorising officer.
Clause 26(1) already limits the role of the authorising officer to a senior official within the meaning of RIPA who has been designated for that purpose by the Secretary of State—that is, the Home Secretary. Within the police, the relevant rank for an authorising officer would be a chief constable. Under the UK Border Agency’s structure, this would be the current director of operations and deputy chief executive. No one working in the criminal and financial investigation teams would be senior enough to equate to that grade. I am sure that the Committee and the noble Baroness share our view that an authorisation to interfere with property should not be approved by anyone less senior than that level. I should also note that the director of operations and deputy chief executive of the UK Border Agency already effectively authorises applications under Section 93 of the Police Act 1997 with regard to customs investigations.
I appreciate that this is a probing amendment but, in short, it would weaken rather than tighten the controls on the exercise of these intrusive powers under Part 3 of the Police Act 1997. All that said, the noble Baroness made it clear that she is seeking to give effect to our commitment that we will limit the exercise of these intrusive powers—that is why she wanted to know why we are seeking extra powers—to specially trained immigration officers in the UK Border Agency’s criminal and financial investigation teams. We do not, however, consider it appropriate to include such an express provision in the Bill given the existing safeguards in the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. We do not have such specificity for customs officials, and the aim is to provide parity for immigration officers.
As the noble Baroness will be aware, Section 28 of RIPA provides that for a senior authorising officer to grant an authorisation for the carrying out of intrusive surveillance, they must ensure that the activity is proportionate and necessary for preventing or detecting serious crime or in the interests of national security or in the interests of the economic well-being of the United Kingdom. The Police Act 1997 also imposes similarly strict controls over the authorisation of property interference.
I appreciate that Amendments 149CB and 153B are probing amendments. They would remove the powers sought for immigration officers in relation to the Proceeds of Crime Act 2002. These powers have been sought for good reason in an attempt to improve the effectiveness of the UK Border Agency’s investigatory capability. Providing access to the relevant Proceeds of Crime Act powers will ensure that the UK Border Agency’s immigration officers are able to play their part in dealing with the proceeds of organised immigration crime.
Moreover, these provisions will place immigration officers on the same footing as their police and customs counterparts and reduce their reliance on outside bodies such as the police. At present, only the UK Border Agency’s customs officials are able to use the full range of Proceeds of Crime Act powers and even then only in relation to customs offences. Immigration officers presently have to rely on the very few accredited financial investigators within the UK Border Agency or on seconded police officers to conduct those investigations. This is clearly a weakness in the UK Border Agency’s ability to fight organised immigration crime. The Bill ultimately ensures that the UK Border Agency can take action to deal with the proceeds of all the criminal offences in its remit, whether commodity smuggling or serious immigration and nationality crime.
The noble Baroness sought an assurance that, where civil servants and others are drafted in to help, we will be able to maintain the border appropriately and that they will have the extant powers. I can give an assurance that any civil servants brought in to help check passports will not be given the powers being sought. They would obviously not have the training that the noble Baroness and we think is appropriate to do so. In any case, those who are brought in to assist with the management of queues are being brought in specifically for that purpose and not to investigate criminal activity.
I do not know what the usual channels and others are thinking about the timing of these matters or whether the noble Baroness will have to keep going for another three minutes, but I hope that, with those assurances, she will feel able to withdraw her amendment. It may be necessary for me to write to her with further detail. I have explained why I think Amendment 149CA is defective. I leave it to the noble Baroness to consider what to do with her amendments.
Baroness Smith of Basildon
I am grateful to the noble Lord. I am puzzled about my amendment being defective. I know the noble Lord has enjoyed explaining that to me on a number of amendments. I always say they are about the intention behind the amendment and that we will come back on Report with one that satisfies him.
I understand that the Explanatory Notes are not part of legislation, as the Minister pointed out to me the other week—I am rather long in the tooth in regard to some of these things—and I am sure that they are not intended to be misleading. They state:
“The purpose of this amendment is to provide for immigration officers working in Criminal and Financial Investigation … teams in the UK Border Agency … to be able to apply to exercise”—
and then they go on to say what those powers are.
I will have to read very carefully what the Minister said in Hansard to make sure I fully understand what he is saying about it not being exclusively those officers—even though the Explanatory Notes say it would be—but that it would be other officers of a certain grade and level.
I said at the very beginning that we are not opposed to the extension of powers in principle, but we just need to understand the Government’s justification and to have some explanations and clarifications. I will read the Minister’s comments in Hansard to clarify the position for myself, but I wonder whether he is talking about slightly different things. At some point, he may have been talking about the authorisation of the action, while I am talking about the officers undertaking the surveillance as well. I hope we have not misunderstood each other. I want an assurance that the officers undertaking very intrusive forms of surveillance—perhaps phone tapping, as it says in here—will not just be authorised by a senior officer, but will have the appropriate skills, experience and training and that safeguards for the public are built in. This is a probing amendment but it may not remain one. We want to look at this a bit further and in more detail, but I am grateful to the Minister for taking time to explain some of the measures. I will look at what he has said in Hansard and I may come back to him on the point about who will have the powers and what training will be provided and I shall also look for an assurance that it will not undermine the skills of existing police officers.
One area on which the Minister did not respond was the relationship between such officers and the National Crime Agency. Given the debates that we have had earlier during the passage of the Bill, it would be helpful to explore the relationship that border officers, who deal with organised and serious crime issues as regards immigration and border control, have with the National Crime Agency, which is a national police force for organised and serious crime. We need to explore that further. I would be happy for the Minister to write to me on that point. I am happy to withdraw my amendment.