My Lords, my noble friend Lady Hamwee and I have several amendments in this group, the first of which is Amendment 82A. I am not quite sure why that provision appears in Schedule 9 at all as it does not appear to be consequential on anything elsewhere in the Bill, and nor is it transitional.
We would also like to know why the Secretary of State thinks it necessary to have this sweeping power to revoke a person’s indefinite leave to remain, if it was obtained by deception, without considering the proportionality of the action. Section 76 of the British Nationality Act, which it is sought to amend, already contains a power to revoke a person’s ILR if it was obtained by deception, and if the person concerned would be liable to deportation because of the deception but cannot be removed. It is these latter qualifications that we seek to delete since otherwise the power would apply to any ILR obtained by deception whatever the circumstances. The qualifications mean that the deception has to be of a nature serious enough to justify deportation, and we think that provision ought to be retained. This means, for example, that the person must have known that deception was used to obtain his ILR and that consideration must be given to the length of time that he has been in the UK and to any family ties that he may have in this country.
Amendment 87ZG would retain Section 87 of the Nationality, Immigration and Asylum Act 2002, which allows a tribunal judge to give directions following a successful appeal. Again, it is a mystery to us as to how this provision finds itself in a part of the Bill headed, “Transitional and consequential provision”, when neither of those adjectives apply. I should like the Minister to say that all the paragraphs of Schedule 9 referring to other Acts will be repositioned before Report.
As long as there are successful appeals—as there will be, however much the Government try to minimise them by removing legal aid and tightening up the Immigration Rules—judges ought to have these powers. Directions commonly require the Home Office to do
something within a particular time or take specific steps—for example, to bring a person back within the jurisdiction. There is a special place for directions when a successful appeal is brought against deprivation of nationality. When a person wins such an appeal, it surely ought not to be within the Secretary of State’s discretion as to whether that person’s citizenship is restored. Yet that would be the position if this amendment is not accepted. As the law stands, the judge could order the Secretary of State not only to restore the person’s citizenship but to backdate the restoration to the date of the unlawful deprivation. This could be important, for example, when a child is born to the person during the period of their deprivation and the child forfeits their own British citizenship as a result.
Amendment 87ZH retains the definition in Section 113 on interpretation in the Nationality, Immigration and Asylum Act 2002. There is a reference to varying leave to enter or remain but it does not include a reference to adding, varying or revoking a condition of leave. This amendment is designed to give the Minister an opportunity to explain to the Committee why it was considered necessary or appropriate to widen the scope of these definitions.
Finally, Amendment 87ZJ deals with the notice that the Secretary of State may serve on a person, P, who has made a protection of human rights claim or an application to enter or remain in the UK, or in respect of whom a decision to deport him has been or may be taken. In addition to the specified information that the notice may require P to provide, we proposed to add the words in the amendment, which would deal with any change in his circumstances to which new subsection (5) would apply. The requirement of that new subsection, whereby if P’s circumstances have changed he must immediately spell out those changes to the Secretary of State and inform her of the additional reasons or grounds on which he should be permitted to enter or remain in the UK, or should not be moved from or required to leave the UK, is unreasonably onerous. It should be borne in mind that P will probably be unrepresented, given the removal of legal aid for immigration cases, other than asylum. How on earth is P supposed to know that such a statement is required? If he does know because it was explained and given in writing to him when the first notice was served, or even because notice is given and received in accordance with this amendment, will the Minister not concede that it is terribly unrealistic to expect P to identify and articulate those grounds, there being no properly resourced system of advice and representation for the person who is subject to immigration control? There will inevitably be requirements that he is unable to comply with, and this is certainly one of them.
By virtue of the test for legal aid, an applicant, including a child, must have been lawfully resident in the UK for 12 months. Persons who are accepted as having been trafficked are eligible for legal aid for their immigration case but not for judicial review. The same applies to victims of domestic violence. Does my noble friend really consider that people in these situations will be able to provide the supplementary statement required in new Section 120(5), or will he concede that it is nothing but a trap to be used against them?