My Lords, I am sorry if my responses on Report failed to satisfy the House; I hope that I can satisfy it today. I understand that the scheduling of today’s business was agreed through the usual channels, and nobody has a more vested interest in the speedy resolution of business than I do, as I believe I will be the last speaker on today’s business.
My noble friend quite rightly pointed out that his amendments are similar to those which he tabled on Report. I explained then that our principal reasons for resisting the first amendment were the detrimental impact on the statutory appeals framework, and the increased number of appeals and costs that would result. Although this amendment is framed more tightly and specifically, the same detrimental impact will result from it. While I recognise the intention of the amendment is to reduce the delay in bringing an appeal for children and trafficked persons, the consequences for the appeals framework are not justified.
Only a minority of unaccompanied children who claim asylum are affected by this policy in the way described by my noble friend Lord Avebury. It affects only those who are older than 16 and a half when refused asylum but granted some other form of leave. These children are close to adulthood and have a right of appeal should a decision be taken to remove them after their leave runs out at age 17 and a half. As I said last time, this delay is not unreasonable.
I say to the noble Earl, Lord Listowel, that the age of 18 is a statutory boundary between childhood and adulthood, and Governments have to live within the constraints of that. It is important to recognise that in all cases, before a child or trafficked person is removed from the UK, they will be entitled to a right of appeal. That is part of the process.
The Government’s policy ensures that individuals do not have multiple appeal rights over a brief period of time, possibly raising the same arguments on each occasion as matters may not have evolved since their last appeal. The amendment would undermine this key principle of the Secretary of State’s asylum appeals framework.
I turn now to Amendment 5, which my noble friend has also brought back. As I set out previously, the individuals we are seeking to capture in this clause are those excluded by the Secretary of State—that is to say, they are individuals who pose the highest threat to the public, be it for engagement in terrorism, serious criminality or unacceptable behaviour. It is therefore only right that an appeal against the cancellation of leave decision that accompanied the Secretary of State’s decision to exclude takes place from outside of the United Kingdom.
To be absolutely clear—I do not want noble Lords to feel that I am seeking to mislead them in any way—and as has been raised in previous debates, there is no policy of waiting for an individual to leave the United Kingdom before excluding them. Indeed, a
series of deportation orders in cases in respect of national security activity are ongoing at the moment. However, in many of these cases we are talking about a situation where an individual leaves the United Kingdom for a period of time to meet with like-minded individuals and potentially to acquire new skills which, if utilised back in the United Kingdom, can pose a significant and serious threat to the population as a whole. That is why in such cases, having seen the intent of their activities while abroad, the Secretary of State takes the decision to exclude on the grounds of non-conduciveness. It would be a highly risky strategy to allow such individuals simply to come back to the United Kingdom and to exercise a right of appeal. It would also undermine a crucial disruption tool used for the protection of the general public.
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On the last occasion I tried to put all this in context because there has been no substantial change in this policy as Governments have changed. I should like to reassure the House that exclusion is a power that is used sparingly and is reserved for the highest harm cases where there is reliable and credible evidence to support the decision. As I indicated on Report, it applies in the context of national security, organised criminality, unacceptable behaviour, foreign policy and war crimes cases. Since 2005 it has been used 426 times. Out of those cases, only 30 have simultaneously had leave cancelled. We should be mindful of the small number of cases we are dealing with here, as well as the potential harm that these individuals may cause the United Kingdom.
I am also aware of the concerns raised about the disadvantage caused to an individual of providing in such cases an out-of-country-only right of appeal. I do not believe that the individual is put at a disadvantage by doing so as the intention in every case is to notify the individual of the decision and the appeal rights that accompany that decision. It is for the individual to seek legal representation of their choosing, and indeed legal aid is available for cases that reach the Special Immigration Appeals Commission. Given the type of terrorist activity we are discussing here, it is likely that many of these cases will reach that forum.
My noble friend Lord Avebury asked me about the criteria for exclusion or cancellation of leave. They are,
“where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good”.
In fact, there is no set definition of the phrase “conducive to the public good”, but I think that noble Lords will know it when they see it.
I have sought to answer all the questions put to me, and in the light of my remarks, I would ask my noble friend to withdraw his amendment.