Immigration Bill

Lord Wallace of Tankerness Excerpts

Wednesday 19th March 2014 Lords Chamber

[Baroness Smith of Basildon]

I share that difficulty. However, what the Bill does has quite significant implications. If I take the example of somebody who is employing an individual whose leave is revoked and who then appeals, the employer has the opportunity to continue to employ that person quite legally. What is being proposed here seems to make the employer commit an offence, because from the moment that leave is revoked, even if the individual is appealing against it, they are no longer allowed to employ that person. What I come back to on a number of areas in the Bill is the issue of unintended consequences—not thinking through from point A to point B. I may have it completely wrong, and I am happy if I have, but I would like some clarification on that point.

On the other two points, the Minister will be aware of how concerned we are about the Government’s proposals on appeals and administrative reviews. I fail to understand why the Government do not want to have the Independent Chief Inspector of Borders and Immigration reviewing decisions taken in this case. The noble Baroness asked him to confirm that. An explanation would be quite helpful. The same is true on Amendment 87ZF.

As with so many proposals the Government bring forward, I would like to understand the evidence behind the decisions being taken and an assurance that they understand and know the consequences, including the unintended consequences, of such measures.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I thank my noble friend for moving this amendment and confessing, as did the noble Baroness, Lady Smith, to having difficulty getting her head around some of this. Having had this landed on me very recently, I have similar issues.

[Baroness Smith of Basildon]

It makes no difference. We spent weeks on this.

[Lord Wallace of Tankerness]

I am advised that it is not correct that this Bill means that leave does not continue where an application has been made in time. I think there is a double negative in there. My understanding is that Section 3C of the Immigration Act 1971 provides that where someone makes an application for further leave while they have existing leave and that the existing leave expires before the application for further leave is decided, their existing leave is extended on the same terms until that further application is decided and any appeal against its refusal is no longer pending. That is the existing position. Section 3D of the 1971 Act makes the same provision where someone has existing leave which is revoked, extending leave while they can appeal against the revocation. Schedule 9 to this Bill amends Sections 3C and 3D so that they extend leave also while an administrative review can be brought or is pending. I hope that is helpful. No doubt the noble Baronesses will want to consider it. I think that is the accurate position.

Nothing in the Bill prevents people making protection or human rights claims. We are committed to protecting such fundamental rights but equally, as has been explained on numerous occasions in Committee, we also seek to prevent abuse of the system and to create an improved process. Our concern is that the amendment that my noble friend has moved would undermine both these aims.

Extending leave because a protection or human rights claim has been made following an unsuccessful administrative review would create a strong incentive to make such claims. This would undermine the greater efficiency of the appeals framework in this Bill. There would be an advantage in making a protection or human rights claim just before leave extended under Section 3C of the Immigration Act 1971 expired, even after an appeal at the First-tier Tribunal has been decided. This would create a sequential process where the further claim and any appeal are considered after the other claim has been decided rather than at the same time. It would mean that leave is extended on current conditions for a worker, even when that worker has first sought an extension of leave as a worker and then decides he no longer wants to be in the UK to work but rather wishes to claim asylum. We do not believe that that consequential inconsistency is right.

Inserting new Section 3F into the Immigration Act 1971, as proposed by Amendment 87ZA, would create duplication. Existing Section 3D of the 1971 Act already provides that where leave is revoked, the leave will continue while any appeal against revocation is brought.

I wish to make the important point that, as I said at the outset, there is nothing in the Bill that seeks to stop or prevent people making protection or human rights claims. The Home Secretary will consider and decide any human rights claim made to her and will not remove any person while that claim remains undecided, irrespective of whether they have leave. I hope that is a reassurance that there will not be a removal while a claim remains undecided.

Amendment 87ZE queries the necessity of a consequential appeals amendment. We believe that the consequential amendment is necessary. Schedule 9 repeals the provision establishing a monitor for entry clearance cases with a limited right of appeal. This monitor role is now performed by the independent chief inspector under Section 48 of the Immigration, Asylum and Nationality Act 2006. However, the Bill provides that there will no longer be any entry clearance cases with a limited right of appeal, and therefore Amendment 87ZE would retain an otherwise redundant provision.

With regard to Amendment 87ZF, the Bill simplifies the appeals framework and removes “not in accordance with the law” and “different exercise of discretion” as grounds on which appeals can be brought. Amendment 87ZF would reinstate these as reasons for allowing an appeal, although they are not grounds on which an appeal can be brought. Noble Lords will recall from when we debated Clause 11 that the grounds of appeal under that clause are that a decision breaches the UK’s obligations under the refugee convention to those entitled to humanitarian protection, or is unlawful under the Human Rights Act. These are the relevant grounds for challenging refusals of protection or human rights claims, and, in considering them, the tribunal is considering whether the decision was in accordance with the law. That is the important point in the appeal. Similarly, the UK’s obligations to asylum seekers entitled to humanitarian protection or under the Human Rights Act are not discretionary. There is therefore no exercise of discretion for the tribunal to consider in those appeals that come before it.

I hope that in the light of this explanation and these reassurances, my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, it would be foolish of me to try to continue the debate at this point. I obviously need to read—probably several times—what my noble friend just said and to consider it with those who are far more familiar with the whole raft of immigration legislation than I am. I beg leave to withdraw the amendment.

--- Later in debate ---

A very important point was also made about the discussions that the British Government have had with other countries, which may end up having a citizen whom the British Government think is likely to be a terrorist or certainly liable to take action prejudicial to the interests of the UK. We would leave them to try another country, although that person would have been accepted into that country because they had a British passport. We have to consider quite seriously the implications for our international relations. I am interested to know what discussions have been had with other countries about those provisions, because there was no answer to that on Monday. If the noble and learned Lord is unable to answer tonight, I will in any case meet the noble Lord, Lord Taylor, who has agreed to do so. However, if we could have some answers to those questions tonight, that would be very useful for our understanding of the Government’s reasons for including this clause, with its very serious implications.

[Lord Wallace of Tankerness]

My Lords, important points have been made in this debate, following on from the debate which took place in Committee on Monday on the issues of deprivation of citizenship and statelessness. My noble friend Lord Deben has reminded us of important things: “Civis Romanus sum, civis Britannicus sum”. This is of great seriousness, and in no way do I wish to detract from the seriousness of these matters, to which I am sure the House will inevitably return on Report. Neither do I wish to try to dodge the question the noble Baroness, Lady Smith, asked, by looking at the amendment. The amendment does not raise these profound issues, which as I said, I am sure we will come back to—indeed, she has indicated that she has a meeting with my noble friend Lord Taylor of Holbeach to discuss some of those issues.

The amendment moved by my noble friend relates to part of Schedule 9, entitled “Transitional and consequential provision”, and specifically would omit Section 40A(3)(a) of the British Nationality Act 1981. The point of that omission is that Section 87 of the Nationality, Immigration and Asylum Act 2002 is repealed by paragraph 28 of that schedule. I think that this matter was debated at an earlier stage; my noble friend Lady Hamwee tabled an amendment which sought to reinstate the power of the tribunal to give directions when an appeal succeeds. The point of this amendment is to reinstate this paragraph in relation to a section which relates to the power of a tribunal to give directions following a successful appeal to give effect to its decision. When my noble friend Lady Hamwee raised that issue in an earlier debate, my noble friend explained that that power is no longer necessary, as the range of decisions that the tribunal can make following appeals reform in the Bill will be more limited, and therefore the consequences clearer.

As Section 87 is repealed by virtue of paragraph 28, the reference to Section 87 in the British Nationality Act 1981 is deleted. The consequence of my noble friend’s amendment would be to reinstate a reference to a section of a Bill that has been repealed. If that is what the amendment is about, it is on that basis that we cannot accept it. But that in no way detracts from the seriousness of the points raised, which it is inevitable that we will return to on Report.

Likewise, Amendment 87ZCA seeks to retain a further cross-reference that is redundant following the repeal of Section 87 of the 2002 Act. There is a cross-reference in the Special Immigration Appeals Commission Act 1997 to the section of the British Nationality Act which refers to Section 87.

Amendment 87ZC also relates to a change made to existing legislation as a consequence of the changes to appeal rights in Part 2 of this Bill. It would retain a reference to “immigration decision” in the Special Immigration Appeals Commission Act 1997. This reference should be removed because Clause 11 on rights of appeal to the First-tier Tribunal does not use the term “immigration decision” to describe decisions that can be appealed. Therefore, the terminology is simply inappropriate and wrong.

I apologise to the Committee for a very technical answer to what are, in fact, technical amendments. In doing so, I do not wish in any way to detract from the seriousness and importance of the points that my noble friends and the noble Baroness have made, which I am sure will be the subject of further discussion outside the Chamber and, again, when the House returns to the matter on Report. In the light of those technical explanations, I hope that my noble friend withdraws his amendment.

[Lord Avebury]

My Lords, in the light of those technical matters, we thought that those amendments were necessary. That is why we still consider that the power of direction of the Special Immigration Appeals Commission should be retained, as we suggested in Amendment 87ZB. As my noble and learned friend says, these are matters to which we shall return, presumably on Report when there is a fuller attendance in your Lordships’ House.

Meanwhile, I should say how grateful I was to my noble friend Lord Deben for his remarks. The same quotation occurred to me as to my noble friend—Lord Palmerston’s famous speech, in which he ended, “Civis Britannicus sum”. It was the case of a person who might not have been considered particularly worthy of British nationality, but he had it, and he was being victimised by the dictators in Naples. We should still be able to say, “Civis Britannicus sum”. As my noble friend Lord Deben said, we should not allow the Secretary of State to take away a person’s citizenship, particularly when, as he pointed out, she does not have to explain why she has done that. He agrees that it should be feasible for her to take away a person’s citizenship only when she knows that the person has another citizenship to turn to.

I am grateful also to the noble Baroness, Lady Smith, for her reference to the consequences of making a person stateless, which go well beyond the individual consequences of the person concerned. We have to think of the influence that that will have on other states that already have persons who are stateless in their community or are contemplating making people stateless; they will look to the British example, and statelessness will thereby be increased across the world. We should not underestimate the influence of a decision by a state such as Britain, which has always been in the forefront of combating statelessness and has now abandoned that stance. So I am sure that we shall return to this matter. In the mean time, I beg leave to withdraw the amendment.