My Lords, leaving out this clause would ensure that a person who is outside the country when his or her leave is cut short by the Secretary of State retains the right to return to the UK within the time limit for appeal and thus the right to exercise an appeal in country. At issue are cases where a person’s leave is cut short by the Secretary of State under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 when he is outside of the UK at the time of the refusal.
It happens frequently and not by accident that the Secretary of State takes advantage of a person’s absence to issue the notice, knowing that that person will not be able to return to the UK to exercise the right of
appeal. At the moment, that person has an in-country right of appeal against refusal. The courts have had to consider what happens when an individual is outside the UK at the time of the refusal. As I say, these circumstances will not arise by chance. The Secretary of State will have waited until the person is outside the country to serve the notice cancelling their leave. The courts have held that the person has the right to return to the UK and to lodge an appeal within the time limit for appealing if he had been within his previous leave to remain.
Clause 27 provides that such a person will be given no opportunity to return to the UK, reversing the decision of the court in the case of MK. I referred to this case in Committee so there is no reason to repeat the details now. I simply remind your Lordships that MK was a Tunisian refugee in the UK, but was in Italy when his status was revoked by the Home Secretary. His right to contest that decision in the UK was upheld by the court. It is that decision which is reversed by Clause 27.
The clause has been amended to restrict the Secretary of State’s power to exclude an in-country right of appeal to those cases where she exercises the power before the person brings his or her appeal. However, this does not address the fundamental injustice in the clause. In Committee, my noble kinsman said that it was,
“wholly reasonable that judicial scrutiny of the decision should be carried out while the individual remains outside the United Kingdom”.—[Official Report, 4/7/12; col. 719.]
He ignored the fact that a person stranded abroad without access to legal advice and unable to consult face-to-face with his lawyers or to approach witnesses who might testify on his behalf is generally going to be at an overwhelming disadvantage in challenging the Home Secretary’s decision. My noble kinsman said that legal aid would remain available for most applications for judicial review of immigration decisions, and I would be grateful if the Minister would confirm that it will be available in these cases as well.
I mentioned also the Court of Appeal’s finding in the case of MK that the right to an in-country appeal was “valuable” and the fact that pursuing an appeal that turns on character may depend critically on how the litigant appears in court. I submit that it is wholly unreasonable for persons who may have resided in the UK for many years to be put in this position. We are not seeking to undermine what my noble kinsman referred to as,
“the operational integrity of the Home Secretary’s power to exclude an individual from the United Kingdom”.—[Official Report, 4/7/12; col. 721.]
We simply seek to ensure that in exercising this power to change someone’s life drastically for the worse, the Home Secretary must abide by the rule of law.
If the repercussions of Clause 27 are serious for those to whom it applies in general, they would be exceptionally so for stateless persons, refugees and persons granted humanitarian protection. Therefore, retaining for these persons the right to return to the UK within the time limit for appeal and to exercise an appeal in country is only fair. They will find themselves,
and possibly their families also, stranded outside the UK and with no other country to which they can legally resort in safety if this clause goes through.
My noble kinsman said in Committee in response to this amendment that it could provide every individual refused under the provision with an in-country right of appeal, as they would merely need to raise human rights or asylum grounds in their appeal. Proposed new subsection (4)(c) would have this consequence, but of course the appeal would succeed only if the asylum or human rights claim was found on appeal to be justified .
The Government are proposing a hugely oppressive measure of stripping a person of their leave to remain while they are outside the UK and leaving them in limbo. They must accept the need to put in place safeguards. It may not be possible to ensure that no one other than those in genuine need of the safeguards benefit, but if that is the only objection to the amendment, my noble friend should say so and we can preserve at least proposed new subsections (4)(a) and (4)(b) on Third Reading. Those who are already stateless or who have been granted leave to remain on the basis of an asylum or human rights claim are surely not to be deprived of a meaningful right of appeal against a decision that will ruin their lives for ever. I beg to move.
5.45 pm