Immigration Bill — House of Lords, 2016-02-03
Topic: Civil Rights
Sally Rachel Hamwee (Liberal Democrats, Centre to centre-left): My Lords, from these Benches we support Amendment 227 and the opposition to Clause 34 standing part of the Bill. I will not speak to Clause 35 The right reverend Prelate has just mentioned legal work provided pro bono. I would like to take this opportunity of echoing a comment made by the noble Lord, Lord Faulks, from the Dispatch Box the other day when he repeated an Answer to a Question on legal aid. He said that there are a lot of legal firms which are not "ambulance chasers". Those firms do terrific work in very difficult circumstances, and many of them are engaged in this sort of work The noble Baroness, Lady Lister, referred to comments on the last Bill from the Joint Committee on Human Rights. The committee, of which I am a member, has drawn the attention of the House again to particular difficulties which might be faced by appellants if a non-suspensive appeals regime is extended in circumstances in which judicial review is the only means of challenge. This could mean that families with meritorious Article 8 claims are subjected to extensive separation. I think that she also referred to the report of the Constitution Committee, which commented among other things—there were two or three pages on this—on the practical extent to which legal aid is perhaps not likely to be available in respect of judicial review challenges to certification decisions We use the term, "Deport first, appeal later", but of course it is not quite that. It is "Be deported and appeal later", or deport first and then be appealed against in a situation in which the appellant can apply only in a way that the Court of Appeal and the Solicitor-General have acknowledged is less advantageous—that is the term used in the court. The noble Lord, Lord Rosser, referred to this and it is certainly less advantageous for the appellant or potential appellant. There is difficulty in paying for legal representation and liaising from abroad with legal representatives—if you can find any who can help in the circumstances—difficulty in obtaining, submitting and giving evidence, and difficulty for the tribunal in assessing evidence The human rights memorandum published by the Home Office said that, "there is no intention to apply this power to cases relying on Article 2 and 3 rights", and that, "case law … makes plain that where there is an arguable Article 8 claim, there needs to be the effective possibility of challenging the removal decision" If Clause 34 has to remain, it would be good if it could somehow refer to what is in that ancillary documentation It struck me during discussions about this how difficult it is to certify a negative. It is almost as difficult as proving a positive. The Secretary of State has to certify a claim, as we have heard, if she considers, first, that removal is not unlawful and, secondly, that the appellant would not face a real risk of irreversible harm. I am sure that the Minister will, as the noble Lord said, refer to the recent Court of Appeal case which ruled that the regime was lawful. However, that was in the context of deportation, and the fact that it was lawful does not make it right There is no equality of arms and a perversity about this. As the Law Society has pointed out, "the spouse of a national of any EEA"— European Economic Area— "member except the UK would retain a full in-country right of appeal … whereas the spouse of a UK national"— not the spouse of any national of any other EEA member— "would have to leave the country".