Nationality, Immigration and Asylum Bill

– in the House of Lords at 4:16 pm on 17th October 2002.

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Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department 4:16 pm, 17th October 2002

My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill in respect of Parts 3, 5 and 8.

Moved, That the House do now resolve itself into Committee (on Recommitment) in respect of Parts 3, 5 and 8.—(Lord Filkin.)

On Question, Motion agreed to.

House in Committee (on Recommitment) accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (LORD GEDDES) in the Chair.]

Clauses 42 and 43 agreed to.

Clause 44 [Section 43: supplemental]:

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

moved Amendment No. 1:

Page 25, line 42, leave out "Paragraph 2" and insert "Paragraphs 2 and 6"

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

These are minor and technical amendments to Clause 44 and Schedule 9 which have no practical effect but merely preserve the current position under the 1999 Act.

When deciding whether a person is destitute and therefore eligible for support under Section 95 of the 1999 Act, the Secretary of State must take into account the value of a person's assets. Paragraph 6 of Schedule 8 to the Immigration and Asylum Act 1999 currently enables the Secretary of State to make provision in regulations for the valuation of assets. Once this Bill comes into effect, paragraph 6 will be redundant because Clause 43(6) of the Bill inserts a new Section 95(8) of the Act which contains the necessary provision. These amendments rectify the position by deleting the redundant 1999 Act provision. I beg to move.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

I support these amendments. It may be convenient to the Committee if I make it clear that we welcome the recommitment of the Bill today. Throughout the afternoon our amendments will be probing amendments. How could we not welcome the new government clauses as, in most part, they appear to reiterate what my right honourable friend Michael Howard was trying to achieve in the 1996 Act. That appears to be the case and we shall consider later amendments with interest. That will govern the way in which we approach the debates today.

Photo of Lord Dholakia Lord Dholakia Party Chair, Liberal Democrats

These are technical amendments and the noble Lord has our support. Obviously, much of the later discussion in the debate will be that of probing the Government's intention in the new amendments. Certainly, we shall give consideration at the appropriate time as to how to deal with them.

On Question, amendment agreed to.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

moved Amendment No. 2:

Page 25, line 43, leave out "destitution"

On Question, amendment agreed to.

Clause 44, as amended, agreed to.

Clauses 45 to 53 agreed to.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

moved Amendment No. 3:

After Clause 53, insert the following new clause—

2 "LATE CLAIM FOR ASYLUM: REFUSAL OF SUPPORT

(1) The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (2) if—

(a) the person makes a claim for asylum which is recorded by the Secretary of State, and

(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

(2) The provisions are—

(a) sections 4, 95 and 98 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker, &c.), and

(b) sections 16 and 23 of this Act (accommodation centre).

(3) An authority may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (4) if—

(a) the person has made a claim for asylum, and

(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

(4) The provisions are—

(a) section 29(1)(b) of the Housing (Scotland) Act 1987 (c. 26) (accommodation pending review),

(b) section 188(3) or 204(4) of the Housing Act 1996 (c. 52) (accommodation pending review or appeal), and

(c) section 2 of the Local Government Act 2000 (c. 22) (promotion of well-being).

(5) This section shall not prevent—

(a) the exercise of a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), or

(b) the provision of support under section 95 of the Immigration and Asylum Act 1999 (c. 33) or section 16 of this Act in accordance with section 122 of that Act (children).

(6) An authority which proposes to provide or arrange for the provision of support to a person under a provision mentioned in subsection (4)—

(a) must inform the Secretary of State if the authority believes that the person has made a claim for asylum,

(b) must act in accordance with any guidance issued by the Secretary of State to determine whether subsection (3) applies, and

(c) shall not be prohibited from providing or arranging for the provision of support if the authority has complied with paragraph (a) and (b) and concluded that subsection (3) does not apply.

(7) The Secretary of State may by order—

(a) add, remove or amend an entry in the list in subsection (4);

(b) provide for subsection (3) not to have effect in specified cases or circumstances.

(8) An order under subsection (7)—

(a) may include transitional, consequential or incidental provision,

(b) must be made by statutory instrument, and

(c) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(9) For the purposes of this section "claim for asylum" has the same meaning as in section 17.

(10) A decision of the Secretary of State that this section prevents him from providing or arranging for the provision of support to a person is not a decision that the person does not qualify for support for the purpose of section 103 of the Immigration and Asylum Act 1999 (c. 33) (appeals).

(11) This section does not prevent a person's compliance with a residence restriction imposed in reliance on section 64 (induction)."

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I hope that it will be of help to the Committee if I speak briefly about the Government's overall consideration of the position regarding asylum and immigration in order to set the context for our discussions today.

First, it is obvious to us all that there is a problem. It is illustrated by the fact that Britain now has the highest number of asylum applications in Europe. The proportion of asylum applications to Britain has risen from what was 5 per cent of the European Union total in 1993 to nearly 25 per cent.

Secondly, although it is not the most fundamental of issues, the asylum process and the asylum support process are extremely expensive. The National Asylum Support Service support to asylum seekers is currently running at over £1 billion a year. At the same time, the system poses pressures on local communities. There are currently 83,000 people being supported by NASS in local communities, often concentrated in some of the most deprived communities in Britain.

Thirdly, as the Committee knows, the trafficking system that brings people to the country is strongly criminally dominated. I shall not go into detail; the Committee knows that.

Those points are by way of background. Perhaps they would matter less if it were not for the last two points. We know that most of those who claim asylum are not found to qualify under the 1951 Geneva Convention. Even more importantly, we know that people in the world who are in the greatest need of asylum are not able to get to Britain or other places of refuge. So one has a system where numbers are rising; there is an enormous amount of turbulence in the system; and yet there is a worry among all Benches that those who most need asylum in the world are not getting it.

The Government have a clear view as to what is a better way forward. In essence, we should recognise the contribution that migration makes to our society and we should have an expanded system of managed migration. We have seen two recent announcements by the Home Secretary to this effect to open up more managed migration into Britain than previously has been the case. It may well be that we should go further in the future.

It is essential that we are successful in reducing illegal migration and the manipulation of the asylum system. We need to have more order and more control in the system to make it possible to make faster decisions for those who do apply and, above all, for those who need the protection that we should be giving them under the 1951 convention.

Lastly, and most importantly, the Government are clear that the more that we can bring the system, which is dominated by criminality and confused by the volume of economic migration under control, the more that we can win the argument for, both in the European Union and the world, significantly expanding resettlement schemes, working with the United Nations High Commission for Refugees, so that we can give refuge to those in the world who most need asylum who are currently not able to get it.

That sets the context. The Committee knows that. Therefore, it sets the context while we focus today on the specifics of how we believe it is necessary to get a stronger grip on the current situation.

I start by focusing on that and the purpose of the amendments tabled with Amendment No. 3. The linking theme in many of the Bill's provisions is a move towards a more streamlined and cohesive system with more closely managed contact between the Immigration and Nationality Directorate and the individual applicant. This is the strategic aim behind the introduction of accommodation centres, tighter screening and induction processes and enhanced reporting requirements. These legislative changes are supported by the additional resources that the IND has been given to deal more quickly and effectively with the volume of cases that it receives.

This means that we shall be able to decide cases progressively more quickly and to act effectively on the basis of those decisions. That should mean that genuine refugees who need our protection will be recognised more quickly and set on the path of successful integration in this country. There will be a greater likelihood that those with no basis for remaining here will return, as they should, to their own countries.

The changes to the support arrangements further strengthen this strategy. The current ability to access support on the basis of an unexplained late application for asylum, or on the basis of a non-existent or frankly incredible account of how the applicant came to be here, is an important factor in our lack of effective control over key parts of the process.

It is an entirely reasonable expectation that those who want the United Kingdom's protection should claim asylum at the earliest opportunity. That will enable us to help the genuine cases by allowing access to our integration arrangements as soon as possible. At the same time—and I make no apology for this—it will increase the likelihood that those who do not need our protection will return home.

It is not therefore helpful to the achievement of our overall aim of an effective asylum process if there is no encouragement to applicants to come forward and to be frank with us.

What do we expect will be the impact of this? On past experience, it is likely that a great proportion of asylum applications will be made on entry at the ports. That seems to us right and proper. Currently, two-thirds of applications for asylum are not made on entry at the ports, they are made in-country. Applicants are likely to modify their behaviour and to come forward at an earlier stage. But all destitute asylum seekers will continue to be able to access support providing that they come forward at the earliest opportunity and are straight with us. The real aim is to produce an orderly and managed process in which those behaviours are encouraged and misuse is not rewarded.

The new clause, therefore, ends the presumption of support for those who apply for asylum in-country unless they give a truthful and credible account of their circumstances and how they arrived here and can therefore demonstrate that they are claiming asylum at the earliest opportunity.

Accordingly, we have tabled Amendment No. 3. It has the effect of preventing the Secretary of State, in practice the National Asylum Support Service, from providing support to an asylum seeker where the Secretary of State is not satisfied that the asylum claim was made as soon as reasonably practicable after the person's arrival in the UK.

We expect asylum seekers to apply for asylum at the earliest opportunity and we see no reason why, if they are in genuine fear of persecution in their country of origin, they should not do so. We also expect them to be straight with us about their circumstances and to be prepared to explain how they have been supporting themselves since arriving in the UK and why they now need to come to us for support. Again, why should they not do so? On that basis, it is our view that it is perfectly reasonable to make it a condition of access to support that people claiming asylum do both.

Anyone who can show that he has made his claim as soon as he was able and can show that he is destitute and has nowhere else to turn for support will be eligible for support from NASS. However, people who may have been living in this country for some time but have no real claim to remain cannot expect to rely on making a claim for asylum as a means of extending their stay at the taxpayers' expense. It is wholly reasonable to expect that if an individual is genuinely fleeing persecution they ask for protection as soon as they arrive in the United Kingdom. If they do not do so, that can only cast doubt on their credibility and intentions.

I turn to the detail of the new clause. The provisions under which the Secretary of State is precluded from giving support are Sections 4, 95 and 98 of the Immigration and Asylum Act 1999 and Clauses 15 and 22 of the Nationality, Immigration and Asylum Bill, when enacted.

This will mean that support will be withheld both under the existing arrangements and under those for the provision of support in accommodation centres if the Secretary of State is not satisfied that an asylum claim has been made as soon as reasonably practicable after arrival in the UK.

The burden of proof will be on the applicant for support to show that it was not reasonably practicable to have made his asylum claim sooner. However, the mere fact that an asylum seeker has been in the United Kingdom for a long period will not necessarily preclude him from support. Conditions in his home country may have only recently deteriorated such as to warrant the claim for asylum. In such a case, it would not have been "reasonably practicable" to have made the claim sooner.

I should also reassure the Committee that, by virtue of subsection (5), we have sought to ensure that if a person is refused support, he can nevertheless access support from the Secretary of State, if the Secretary of State is satisfied that he has demonstrated that due to his personal circumstances there is a breach of Article 3 of the European Convention on Human Rights. As the Committee will also read in subsection (5)(b), families with dependant children aged under 18 years will not be affected by the measure. We do not want the actions of fathers or mothers visited on their children.

At this point, I should make absolutely clear that the burden of supporting asylum applicants caught by the provisions will not pass to local authorities. We are not reproducing the situation that arose in 1996. However, the National Assistance Act 1948 will remain available, as it is under the current arrangements, to those asylum seekers who have a need for care and attention that has not been caused solely by destitution or its effects. To illustrate, a person who has a chronic need for support will be able to access it under that Act to a level that makes it possible for him/her to be properly dealt with.

The amendment also prevents local authorities providing support under the Housing Act 1996 and the Local Government Act 2000. Section 2 of the latter Act gives local authorities a wide power, inter alia, to promote and improve economic and social well-being in their area. Although we would not expect local authorities to exercise those powers to support asylum seekers, because that responsibility lies with the Home Office, it is sensible to ensure that people affected by the present measure should not be able to seek to get a local authority to support them under Section 2 of the Local Government Act 2000 instead. We applied the same principle to Schedule 3 and removed local authorities' discretion to use their general well-being power to support those classes of person covered by the benefit shopping policy. Although that has been the subject of discussion between the Government and the Local Government Association, at heart it is to protect local authorities from legal challenge that would impose unreasonable burdens on them.

Section 188(3) of the Housing Act 1996 provides local authorities with a discretionary power to secure that accommodation is available for an applicant pending a review on a decision. Section 204(4) of the Act provides local authorities with such power while an appeal is outstanding. We intend to be consistent with a similar amendment tabled to Schedule 3 by ensuring that those affected by the provisions cannot receive housing assistance pending a review or while an appeal is ongoing. Such assistance should not be provided, given that individuals refused support under the new provisions are clearly not eligible for housing assistance.

In addition to the prohibition on local authorities' providing support, they are required under subsection (6) to inform the Secretary of State if they believe that a person who has applied to them for support has made a claim for asylum, and must act in accordance with statutory guidance in determining whether the prohibition on support applies. The aim is to help local authorities to identify people whose support falls to the Secretary of State, if anyone, to provide. As I have said, if such persons fall on hard times to the degree that there may be a breach of Article 3, it will fall to the Secretary of State to provide support, not the local authority.

Subsection (10) prevents a person from appealing to an asylum support adjudicator against the Secretary of State's decision that it would have been reasonably practicable to have made the asylum claim sooner. The existing rights of appeal to an asylum support adjudicator remain. However, the new policy introduces a prior judgment by the Secretary of State as to whether the person applied at the earliest opportunity and has properly explained his circumstances. Those are not matters on which the asylum support adjudicator would be equipped to form an alternative view; they are prior questions for the Secretary of State alone, subject to challenge in the normal way through judicial review. After such a judgment to provide support has been made, if an applicant is aggrieved in the exercise of that judgment, he could then appeal against, for example, the determination that he was not in need to an asylum support adjudicator.

Amendment No. 5 amends paragraph 12(c) of Schedule 8 to the Immigration and Asylum Act 1999. That paragraph provides that regulations may make provision for the circumstances in which an application for National Asylum Support Service support may not be entertained. The amendment provides that regulations may, in particular, provide for an application not to be entertained where the Secretary of State is not satisfied that the information provided is complete or accurate, or that the applicant is co-operating with enquiries made by the Secretary of State.

Under our current procedures, emergency accommodation provided under Section 98 of the Immigration Act 1999 may be provided to asylum seekers while NASS considers an application for support under Section 95 of that Act. However, would-be asylum seekers—mainly persons here unlawfully—have, for example, been accessing emergency accommodation in London and elsewhere even before they have lodged an asylum claim. We must have due regard to taxpayers' considerations and develop procedures that enable us to provide support in a more efficient and managed way.

The amendment will allow us to draft new regulations to enable us to challenge more effectively those who seek to abuse the support system. We will turn away those who do not furnish sufficient information to enable us to make a decision on their support application, who deliberately mislead us or who do not co-operate with procedures. They will not be allowed to access temporary support. If they return with the required information, of course we will entertain the application and temporary support, Section 95 support or accommodation centre support will then be provided as long as they otherwise qualify.

Many amendments have been tabled in response to the provisions. I shall not respond to them in detail now, because I should much prefer to hear what is said to advance them. I shall make only two brief points. First, we fear that several of the amendments undermine the intended effect of the new clause. We believe that support should not be provided to people who apply in-country for asylum unless they do so at the earliest opportunity and provide a credible account of the circumstances of their arrival and how they have been supporting themselves to date. It is right and proper to introduce an amendment to that effect.

Secondly, a number of the amendments would place a duty on the Secretary of State to publish guidelines about various aspects of policy. Although I understand the motivation behind that requirement, our concern—to which I am sure we shall return later—is that publishing highly detailed guidance may well undermine the policy, as it may be exploited by those seeking to abuse the system.

I regret the fact that I have taken some time in moving the amendment, but I thought that it might be helpful to the Committee to set out the broad context of the Government's thinking and the specific context of the amendment. I beg to move.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

moved, as an amendment to Amendment No.3, Amendment No. 3A:

Line 2, at end insert—

"( ) This section does not apply to—

(a) families with children; or

(b) those with special needs."

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

For the convenience of the Committee, many amendments have been grouped together. I shall now speak to 10 amendments in my name in one group. The Committee will be relieved to hear that some of my questions need not now be asked because of the Minister's helpful explanation. That is especially the case with Amendment No. 3A, under which I had hoped to elicit what would happen to families with children and those with special needs. Predominantly, the Minister has answered my questions; I have only one remaining question about support for such persons. Can he tell the Committee how the Government intend to define the term "families with children"?

I turn to Amendment No. 3B, which would require the Secretary of State to publish guidelines—something to which the Minister referred—to,

"assist him to make a decision as to whether or not a person has made an application for asylum as soon as reasonably practicable after that person's arrival in the United Kingdom".

I certainly agree with the Minister's overarching hope on guidelines—that they should not undermine the system that they are intended to illuminate. I shall listen with care to his answers to my questions on guidelines. Having just heard two comments by the noble Baroness, Lady Hollis of Heigham, about her hopes in opposition, I recall (when sitting on Benches opposite listening to her) her always referring to the need for guidelines. So I am perhaps following in good footsteps and shall press as hard on this Government as she did on ours.

My purpose is to ask the Minister how the Secretary of State will decide what is meant by "reasonably", in the phrase "reasonably practicable"? What if the asylum seeker is ill on arrival and has to go to hospital? What if he arrives on the back of a lorry? How would he know that he ought to make a claim as soon as he arrives, as soon as he is pitched out onto the M2? What if the asylum seeker is not allowed time to make a claim for legal advice first? Will he have the opportunity to get legal advice? What if he is given the wrong legal advice? How will that influence the Secretary of State's decision? What if the asylum seeker makes a claim as soon as is reasonably practicable and the Home Office incorrectly records the claim?

I turn to Amendment No. 3E. Subsection (3) of the new clause states that a local authority,

"may not provide or arrange for the provision of support" to an asylum seeker, if,

"the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable".

It is a similar point. The Minister tried to make it clear that the Government wanted to take away local authorities' discretion in this area. Yet, the use of the word "may" in subsection (3) makes it look as though the Government are allowing the local authority discretion as to whether it shall make benefit payments. I would be grateful if the Minister could clarify that. Do the Government intend to allow discretion under subsection (3)?

The next amendment is Amendment No. 3F. Subsection (6) states:

"An authority which proposes to provide . . . support to a person under a provision mentioned in subsection (4)—

(a) must inform the Secretary of State if the authority believes that the person has made a claim for asylum".

How does a local authority come to that decision? What should make it believe that a person has made a claim for asylum? Does the local authority need a piece of paper on which the Home Secretary states that a claim has been made? How does it make that judgment? At the moment, it looks as if it is left open to the local authority to come to a subjective judgment. My amendment says simply that, in making such a decision, the local authority must have "reason to believe" that the person involved has made an application for asylum. That puts things on a more objective ground.

Amendments Nos. 3G and 3H refer to the guidance that, one hopes, is to be published. How binding will the guidance be? When will we see it? Will it be published and, therefore, available to lawyers and advisers? Will it be public property? Will it be published before the Bill receives Royal Assent, which is not too far in the future—just a couple of weeks? It is public knowledge that the Government intend to enact the Bill as soon as possible. The BBC website and the newspapers have told us that the Home Secretary told M Sarkozy that the Bill would be in place by mid-November.

With Amendment No. 5, the Minister aims to insert another new clause. My amendments, Amendments Nos. 5B and 5C, relate to that new clause, which covers the use of false or incomplete information. If the Secretary of State is not satisfied that the applicant has provided complete or accurate information or that he is co-operating with the inquiries carried out to establish eligibility for asylum, he can refuse to consider the application. My amendments probe to see how stringent that requirement will be.

I want to probe the Government on the matter because I was present when the noble Lord, Lord Peston, probed the Government on their use of the word "or" in an education Bill. I talked to the noble Lord yesterday to make sure that my recollection was correct. In the new clause, are the Government using the word "or" in a conjunctive or disjunctive sense? Must all the requirements on the asylum seeker be obeyed? Is it a case of "and...and...and..."? In another case—I am trying not to use the word "or"—must the asylum seeker do one of the actions in order to satisfy the Secretary of State?

One must ask the obvious question: how will the Secretary of State know whether the information is complete? If one does not know something, one does not know what one does not know. That is the usual argument.

We are cantering towards a welcome close. The purpose of Amendment No. 5D is to probe to see whether the applicant will be assured of receiving independent and—preferably—legal advice at this early and important stage of the application. If so, how will that legal advice be guaranteed?

Amendment No. 5E would require the Secretary of State to,

"publish guidelines to which he will have regard when making a decision under this section".

I shall be intrigued to hear how the Minister will answer the series of questions on guidelines. They will be important in explaining to asylum seekers and those who advise them how the new clause will operate.

I underline the fact that we support the making of both of the Minister's amendments, Amendments Nos. 3 and 5. I beg to move.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 4:45 pm, 17th October 2002

I apologise for intervening now; I should have intervened after the Minister's speech on Amendments Nos. 3 and 5.

I wanted to explain that it was hoped that a report from the Joint Committee on Human Rights would be available for this re-commitment. That is not possible; the Committee is in India or Canada or somewhere. I am a member of that Committee, and I am told that it cannot meet until Tuesday and that, therefore, there cannot be a report. However, I have been shown a draft report from Professor David Feldman. I have disclosed it to no one, but I am entitled to say that I agree with it. It is highly critical of the amendments on various grounds. I ask that some of the questions that arise be supplied to the Committee, when it meets, so that the matter can be dealt with on Report.

Essentially, the questions are simple. First, can the Government give a categorical assurance that assistance would be available to all those who would, otherwise, be left destitute? Secondly, must there not be some causal connection between an act or omission of an improper nature and the fact of being left homeless and destitute? Thirdly, ought not the burden of proof, to which the Minister referred, to rest with the Secretary of State in establishing whether the conditions for withholding support are compatible with human rights and that the conditions have been met, if a person is to be left without adequate housing, food or clothing? Fourthly, given that there is to be no appeal to an adjudicator available to those adjudged ineligible for support, there is no power to provide support pending the outcome of an application for judicial review. Ought not we to consider whether that is an infringement of someone's rights?

The last question is whether adequate safeguards have been provided against the violation of the human rights of children, under the Convention on the Rights of the Child, of anyone else, under the European Convention on Human Rights, or of adults, under the International Covenant on Economic, Social and Cultural Rights. Are there safeguards against the violation of convention rights, as defined by the Human Rights Act 1998? It would be a service to the Committee if in due course—and before Tuesday, when the Joint Committee meets—answers could be given to those questions.

Photo of Lord Dholakia Lord Dholakia Party Chair, Liberal Democrats

I thank the Minister for these amendments on recommitment. He has set out broadly the context within which they have been framed and I take this opportunity to put forward the views of this side of the Committee. There are issues of concern in regard to the amendments and we shall explain our position during the debate. I am delighted that my noble friend Lord Russell will be contributing on particular points.

I thank the noble Lord, Lord Campbell of Alloway, for the point he raised. I was given to understand that the Joint Committee on Human Rights, which is abroad, may have expressed an opinion but that nothing will be published until next week. This is unfortunate because the results of the Joint Committee's deliberations would have been most helpful.

However, a few minutes ago I received a note informing me that,

"The Joint Committee on Human Rights has given preliminary consideration to the amendments and new clauses proposed by the Government to the Nationality, Immigration and Asylum Bill in the Lords.

"The Committee considers that these proposals all raise critical human rights issues, and it expects to publish a report next week to enable the House of Lords to take the Committee's views into account when debating the Government's proposals".

It would be extremely helpful to our deliberations if the Minister will explain whether or not he has access to the information from the Joint Committee. If not, at least will he explain whether the issue of human rights was taken into account when considering these amendments?

Another issue of concern reflects information that I have been given in another note. The Home Secretary's adviser on nationality, Sir Bernard Crick, when talking about the support mechanism for asylum seekers, is reported to have said in Scotland that NASS staff were,

"second-rate civil servants who were both angry at, and jealous of, the asylum seekers they were supposed to help".

Speaking at a debate on asylum seekers in Edinburgh, Sir Bernard said:

"NASS was hastily created and staffed by people who wanted better jobs in the civil service and didn't get them.

"They are not good at community work which is what they are in effect expected to do. They are low-paid, angry at their clients and jealous of their clients while trying to administer complex procedures".

I raise the issue because it is a matter of serious concern if these comments reflect the views of the Government's adviser on the issue of assistance—or, for that matter, withdrawal of assistance—for asylum seekers.

Further, Just existence, a report on the lives of asylum seekers who have lost entitlements to benefits in the United Kingdom, has recently been published. In the report, the comments of the chief executive of the Refugee Council on this issue are relevant to the amendments. He states:

"In this report you will read about some of the people who have suffered as a result. These are people who are in despair, who talk about their lives as deaths. People who are living on bread and water, who walk for miles to get a hot meal or who are sleeping on floorboards under blankets in empty flats, and who are being pushed from pillar to post. Many of them are too poor even to afford the bus fare to the solicitor dealing with their asylum claims.

"These are not young, healthy adults, but people who are already severely traumatised. Several have been tortured in the home countries, two have had to leave their children without the opportunity even to say goodbye.

"British asylum policy is not harsh by accident. It is the intention that by treating people badly here, others will be deterred from fleeing to the UK".

The report cites the cases of 15 individual asylum seekers and explains what has happened to them. I hope that the report does not reflect the basis of the way in which we treat people who are genuinely being persecuted in their home land and are looking to our civilised country for help and assistance. I should say that the report relates to the effects and implications of the 1996 Act.

I shall ask my noble friend Lord Russell to deal in detail with our objections to some of the issues identified in the amendments. I hope that the Government will seriously consider whether the withdrawal of assistance to refugees is, perhaps, not necessarily the right thing to do.

Photo of Earl Russell Earl Russell Liberal Democrat

Before I deal in detail with the amendments, perhaps I may respond briefly to some of the Minister's initial comments. Before he accuses me of making a Second Reading speech, I should say that I did not have the privilege of making a Second Reading speech on the Bill because I thought that manners did not permit me to absent myself from my own farewell party. I need to explain why we believe that in some cases the Government are barking up the wrong tree and why we have put down our amendments.

I entirely took the reference of the noble Baroness, Lady Anelay, to Mr Michael Howard. No one can look at these amendments without remembering the 1996 Bill. The resemblance is extremely close. However, I think that this Bill is the worse one—partly because any bad policy continually followed gets worse as it goes on, and partly because if you want to make people think you are a Conservative you do not have to try so hard if you actually are one. So I would rather have had Mr Michael Howard's Bill before us than this one.

Photo of Lord Corbett of Castle Vale Lord Corbett of Castle Vale Labour

The noble Earl referred to the 1996 Act. Does he recall that the provisions of that Act were to withdraw support from all in-country applicants—not, as provided in this Bill, only from those applicants who cannot give a good reason as to why they did not apply immediately after their arrival in the country?

Photo of Earl Russell Earl Russell Liberal Democrat 5:00 pm, 17th October 2002

The good reasons point I intend to be answering for most of the remainder of my speech. Mr Howard did allow benefits for those who claimed it at the ports. In Mr Howard's Russian roulette, there was at least one empty chamber in the revolver. By the time we are through with this Bill, under the provisions of the amendment, I wonder whether there will be any empty chambers in the revolver at all—and that doubt is a serious one.

The Minister expressed many doubts about why we get so many applicants. I think that he is wrong to concentrate on the gross numbers. Per capita is a much more accurate form of measurement and is the one genuinely used. Why, for example, the Netherlands get far more applicants per capita than we do is a serious question.

The Minister is obviously being selective in his data when he refers to our having the greatest number. During the Bosnian crisis, that honour fell very clearly to Germany as, for geographical reasons, it obviously must. One of the problems of applying the first safe country rule is that it places an appalling burden on any country that has a major refugee-producing crisis on its borders. There is a case for some sharing out.

There are other reasons for the large numbers involved. I was once taking part in a meeting outside this House with Diane Abbott from another place. She said:

"The reason why there are so many of us over here is that you were first over there".

There is some substance in that point. A great many of the countries concerned have in the past been part of the British Empire. They share with us a common language, which obviously makes a difference. They also share with us a common stop for airline routes. Heathrow prides itself on being the junction point in the network of the world's major airlines. That is clearly likely to attract applicants.

The Home Office expresses intense surprise—rather to my surprise—at the increase in the number of refugees world-wide since 1989. There are reasons for that which have nothing to do with the policy of this country. It is, incidentally, a world-wide phenomenon by which this country is little affected.

One reason is the ending of the Cold War, which, as one sees in the Middle East, provided the world with a sort of policing system—I stress the words "a sort of"—which is not now available. Another, more important reason is the loss by the state of the monopoly of armed force—as we see clearly in places ranging from Angola to Northern Ireland. So there are a number of good reasons for the increase in the numbers of applicants which have nothing to do with the policy of any British government and cannot be changed or deterred by any change in British government policy.

That is the major reason why attempting to deter refugees from coming to this country by making their life here more unattractive is attempting to do the impossible. They can get more and more savage, and they will still not achieve their purpose; so they will think that they have to get more savage still. But they are attempting to do the impossible. Until they understand that, we shall not begin to get anywhere.

I turn to the detail of the amendments. Amendment No. 3A standing in the names of the noble Baroness, Lady Anelay, and the noble Lord, Lord Kingsland, provides for assistance to families with children and to those with special needs. We welcome the amendment so far as it goes. But it is, as I think the noble Baroness will admit, a crumb from the rich man's table. I have never understood how children can be adequately provided for while their parents have nothing. The mere sight of his or her parents starving is itself a severe infliction on the child. I simply do not understand it. As regards the guidelines, we have no objection.

Amendments Nos. 3C and 3D, standing in my name and that of my noble friend Lord Dholakia, go some way to meet the points made in the important speech by the noble Lord, Lord Campbell of Alloway, which I warmly welcome. They are designed to ensure that no one should be left absolutely destitute. They allow some of the deprivations that are introduced, but not all. If I may put it this way, they allow the Minister to take away the main course but insist on his still allowing the soup. It is not much, but small mercies occasionally do matter.

Amendment No. 3F by both Opposition parties. It would change "believes" in subsection 6(a) of the proposed new clause to "has reason to believe". There are many things that the Secretary of State believes which he has absolutely no reason to believe. For example, he believes—the noble Lord, Lord Filkin, repeated that belief in out debates last week—that people are attracted here by generous welfare benefits. By European standards, as Eurostat confirms, our welfare benefits are not generous. Secondly, the Home Office's own research, published only two weeks ago, indicates that welfare benefits are not among the important influences when refugees decide where to go. So if the Home Secretary believes that, he has no reason to believe it. Once one introduces the idea of reason, one introduces also the possibility of judicial review. That is an important safeguard and we are concerned about it.

Amendment No. 3J deals with a Henry VIII provision. It deals with alternative sources of support which are blocked off. The proposed new clause gives the Secretary of State the power to,

"add, remove or amend an entry in the list", of authorities and sources that may not provide support. Our amendment would allow the Secretary of State to remove names from the list of those authorities that may not provide support, but not to add to it.

In including this paragraph, the Government probably had in mind the Collins judgment which followed the 1996 legislation and which ruled that asylum seekers were entitled to support under the National Assistance Act, which the Government had forgotten to include in the repeals schedule.

It reminds me of the sad story of Mr Jones, whose wife died, was taken to the undertakers and was put in a coffin. They carried the coffin down the hill, turned the corner into the churchyard and bumped into the church gate. A scrabbling noise was heard from the coffin. They found that Mrs Jones was alive. She lived another 20 years. When she died, she was taken to the undertakers, they put her in a coffin, the funeral procession began and the coffin was carried down the hill. As they turned the corner to enter the church gate, Mr Jones said, "Be careful not to bump against the corner"! The inclusion of this provision is a case of the Government "being careful not to bump against the corner". I would rather like to find Mrs Jones alive in the coffin.

I turn to the main amendment—which we on these Benches do not welcome. The question was raised of Article 3 of the European Convention on Human Rights dealing with inhuman or degrading treatment. I know that counsel for the Human Rights Committee takes this seriously. I have corresponded with him on the matter. Perhaps the Minister can clarify a point that he made. He said that if people were reduced to "such a degree" of destitution that Article 3 was involved, the Government would take action. The concept of degrees of destitution interests me. I should be grateful if the Minister would explain which degrees of destitution he thinks fall within the provisions of Article 3 and which do not. I am puzzled.

I believe that the Government have got "rights" and "responsibilities" back to front. There is a right to life. Since, on the initiative of the noble and learned Lord, Lord Williams of Mostyn, during the passage of the Human Rights Act, we finally abolished the death penalty, we treat that right as absolute. That right, in return, creates a responsibility on the Government to provide the conditions that sustain life. If any asylum seeker were allowed to die of starvation, I wonder whether that would involve Article 2 of the ECHR as well as Article 3.

I turn to the use of the words "as soon as reasonably practicable". The Minister may remember the case of ex parte B in 1996. It was the case that caused this House to legislate again on the circumstances in which benefits may be removed. "B", who came from Zaire, had naturally not been able to keep up with reports in the English press. When she arrived in this country on Eurostar, she walked all the way to Lunar House, in Croydon, to claim benefit, not having discovered from the Zaire press that she had to claim at the port or not at all. I do not see by what means it is made clear to applicants in refugee producing countries which do not have a free press exactly where or how they make a claim. They may lack the information to do it at the earliest practicable moment

In addition, it is a commonplace that the victims of torture—as is well known to the Medical Foundation for the Care of Victims of Torture—often find it extremely difficult to tell their story. I do not know whether the Home Secretary has ever had the experience of dealing with a rape victim while that person is still in a state of shock. I have had that experience three times. I really do not know why people think that academics live in ivory towers. It is extremely difficult to persuade such people to tell their stories. The insistence that asylum seekers should do so immediately is not only impossible, but also inhuman. If the Secretary of State thinks otherwise, I believe him to be both ignorant and grossly destitute of imagination.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I should like to address myself to Amendments Nos. 3C, 3D, and 5F; and, more generally, to the government amendment. This morning, my attention was drawn by Shelter to the possible consequences of the Minister's amendment. Shelter's concern is that the successes that have been wrought in the past three years by this Government as regards reducing the number of rough sleepers by two-thirds might be undermined if this amendment were implemented. Hence my interest in Amendments Nos. 3C, 3D, and 5F, which would help to ensure that no one is left destitute as a consequence of these provisions.

In early 1999, I met a young Somali man at a hostel for young, homeless 16 to 21 year-olds run by Centrepoint in Berwick Street, Soho. If I remember correctly, his village had been razed and his parents killed. He had subsequently lost contact with his brothers who were engaged in the fighting elsewhere. He escaped because he had been befriended by a westerner. He had passed through a port of entry on arrival in this country, but did not make his application at that point. I do not know why, because I did not ask him. He was befriended here by a Somali woman and lived with her for several months before that relationship and assistance came to an end. Prior to my seeing him, that young man had spent three weeks sleeping underneath an arch in Kings Cross, and was absolutely exhausted due to a long deficit of sleep. I saw him over several weeks.

My concern is that we may be putting more young people back into the situation in which that young Somali found himself. I appreciate and understand the Minister's concern that we should instil public confidence in the asylum application process, and that we should process quickly such applications. However, in the pursuit of that end, the means employed should take account of the vulnerable.

Through Centrepoint, I am also aware of the difficulties that some asylum seekers face in terms of bureaucracy. The Minister listed many proposed safeguards, but, in practice, I am concerned that they may not be as effective as we would hope. Therefore, when he responds, perhaps the Minister would be good enough to address that concern. Is the noble Lord aware that these measures might inadvertently give rise to an increase in the number of rough sleepers and homeless people?

In his introduction, the Minister said that two-thirds of applications are presently made in-country and that his intention is that that number should fall dramatically. However, if I am correct, I believe that currently about 40,000 people would be affected by the amendment. We must consider their well-being, especially as at least half of them have gone through the asylum process and been accepted as refugees.

Photo of Lord Corbett of Castle Vale Lord Corbett of Castle Vale Labour 5:15 pm, 17th October 2002

We need to remind ourselves of the purpose of the Bill, and the thinking behind it. We all have a responsibility—and this applies also to the other place—to win wider public support for our duty properly to consider claims for asylum. Part of that means that all reasonable steps must be taken to minimise fraud and abuse of the system. I believe that the public expect that; indeed, it is almost part of a deal. I have some difficulty with the fears that noble Lords have expressed in this afternoon's debate.

The nub of my noble friend's amendment is that support can be refused where,

"the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom".

That must be wholly reasonable. When speaking to one of her amendments, the noble Baroness, Lady Anelay, asked how someone entering the country in the back of a lorry would know where to go to make the claim for asylum, and so on. That is a perfectly reasonable question. I do not, for a moment, make light of this situation. However, if someone has climbed into the back of a lorry after having paid a trafficker money to be transported halfway across this planet because of a real fear of persecution—or, indeed, after having suffered torture, or real threats to his life—the first thing he would do is look for a person in uniform who would, be he a policeman or a member of the IND, soon put that asylum seeker on the right track.

Alternatively, if someone, for whatever reason, delays his application for a few days, he could subsequently walk into a police station to ask where he should go in order to make a claim for asylum. I do not doubt that that person would be given a cup of tea and asked to sit down while the Immigration and Nationality Directorate was contacted. In practice, I do not understand the origin of the fears that have been expressed. Underlying those fears is the thought at the back of some noble Lords' minds that there is a whole raft of reasons why people delay making applications for asylum. I have genuine difficulty in that respect.

We are talking about someone fleeing his country in certain circumstances, making the hideously difficult decision to leave his homeland and, in many cases, also his family. Why should there be any delay in making such an application? I can understand such a delay in the case of illness, and there could be other reasons. However, my noble friend's amendment does not say,

"unless these applications are made at the port of entry, all benefits will be withdrawn", as was the case under the 1996 Act. Indeed, it does not say that at all. It says that in circumstances where,

"the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable", support will be refused. I cannot for the life of me see what is the matter with the amendment.

Photo of Lord Hylton Lord Hylton Crossbench

I shall try to help the noble Lord, Lord Corbett. Let us suppose, for example, that a new arrival manages to get to this country by some means or another and is then lucky enough to receive hospitality from friends or relations. How is that person to know that he must claim immediately? In those circumstances, he will not have passed through induction or accommodation centres. The noble Lord, Lord Campbell of Alloway, rightly pointed out that such people can fall into a kind of limbo while their cases are being considered. Therefore, at the very least, it seems to me that there is a duty on the Government to publicise this obligation to claim immediately. However, I do not know by what means they should do so. I believe that there is a big information gap that needs to be considered in these circumstances.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

I join my noble friend on the Front Bench in welcoming the amendment. The Government have a duty—not only to the people of this country who have been here always or for a long time but to people who have sought asylum recently and have been accepted—to reduce fraud. On the whole, the provisions work.

I am glad that the Minister gave us figures because they reminded the Committee—and if they are reiterated, will remind the public—of the extent of the big problem that the Government are trying to alleviate. Everyone in the Committee should assist them in that.

I am not sure why subsection (5) has to state that the Government must only act to the extent that it does not break existing law. Is that not taken for granted? I see that the Minister has the law by his side. Is subsection (5) just a belt-and-braces provision, so that the Government can say, "Of course that is not true. It is in subsection (5)"? Is that really required? We must be watchful that we do not put unnecessary legislation on the statute book. I ask that question as a non-lawyer because it struck me as important.

As to the relationship between committees in another place and this House, I am a little worried about the way that we debate the input of the Joint Committee on Human Rights. Earlier, members of the committee addressed us on the report, assuming that we had not read it—so there was a good deal of repetition. I was not sure that was necessary. The points were not made particularly concisely but in some detail. No doubt noble Lords felt that was important for the House but I wonder whether it was good practice.

My noble friend Lord Allen of Abbeydale raised a very legitimate point that others have made, about destitution. I too am worried about that. He mentioned papers that have gone to the Joint Committee but which it has not yet discussed. I thought that a report from a committee was quite different from papers that go to a committee and we should not really consider a report until it comes to us. I appreciate that members of the committee are abroad, so it cannot meet until after today. However, that matter is one that the House needs to consider. I am not criticising the noble Lord but there is a problem—as there is with the Joint Committee on delegated powers, on which I sit. Sometimes, the same issue arises. We need to clarify the relationship of committees to the House.

Amendment No. 3B addresses a genuine point relating to guidelines. The decision is hugely important from the asylum seeker's point of view. The phrase "as soon as reasonably practicable" is used a lot in legislation but does not really seem adequate. I look forward to the Minister's comments.

Photo of Lord Dubs Lord Dubs Chair of Labour Peers

I apologise for not being present at the beginning of the debate. If my noble friend the Minister has covered this point, I am sure that he will put me right.

The phrase in the proposed new subsection 3(b)

"the Secretary of State is not satisfied" suggests that there might be occasions when a mistake is made. I am not saying that the Home Office often makes mistakes but we all know it might do so occasionally. If it is thought possible that the Secretary of State has made a mistake about an individual's delay in making a claim for asylum, does that person have any redress or right of appeal—possibly to an asylum support adjudicator? Is there any mechanism by which a person who feels that the Secretary of State has made an erroneous and mistaken decision can have it put right? Would that require legal aid? If so, would it be available—or could an appeal be made with the assistance of the Immigration Advisory Service or the Refugee Legal Centre?

Photo of Lord Judd Lord Judd Labour

My noble friend the Minister was very helpful in trying to set the context for the amendments. In doing so, he came precious near—I am sure that he agrees— to inviting us to have another Second Reading debate. I will forgo responding to that inherent invitation, except that when one sets a context, one must always examine whether it is the full context or partial. I hope that my noble friend will forgive me if I make the point again that we have a flawed international situation. We live—as we are constantly reminded—in the context of a global market with the free movement of capital but there is no free movement of labour. Given that basic flaw, there will inevitably be a problem with irregular migration, or however one describes it, and the rest.

In our society, when a community's economic circumstances change and an individual leaves it to put matters right for his family elsewhere within the bounds of the United Kingdom, such a person is regarded as a social hero—the right kind of citizen. When the same happens internationally, the individual is thought a pariah.

Having been involved directly and indirectly in such matters over a lifetime, I have reached the conclusion that the mistake is seeing an absolute dividing line between asylum and the others. The issue is much more complex. Often, the person whom we dismiss and almost condemn as an economic migrant is facing hell at home. It may not be political hell in the asylum sense but hell nevertheless. We should not be content about slipping into language and adopting an attitude that does not relate to that situation.

The phrase "earliest possible opportunity" speaks of insensitive, bureaucratic drafting. The gap between those of us who sit at tables talking about issues theoretically and the reality for people in asylum situations is immense. What is the "earliest possible opportunity"? People will have been through the most appalling experiences. It may take a long time before they work out what they should be doing and how. Simply to dismiss them and their opportunities because they did not make an application administratively as soon as possible seems altogether too inflexible. That kind of rigidity may be an attempted substitute for wisdom and firmness. Wisdom, firmness and self-confidence do not require inflexible, rigid language in legislation. Legislation should set the context in which the right thing will be done.

I hope that my noble friend the Minister—whom I genuinely hold in very high regard in all sorts of ways—will not mind my taking him slightly to task. The drafting smacks of "Do as we say, not as we do". What if we as legislators were to say, "We will only give serious consideration to proposals that were put before us at the earliest practicable moment"?

Photo of Lord Dholakia Lord Dholakia Party Chair, Liberal Democrats 5:30 pm, 17th October 2002

Will the Minister accept the figures that have been produced in support of Shelter's statement that in-country asylum applicants are just as likely to be successful in their initial claim as those who apply at the port of entry? It cites that in 2001, for example, 20,105 in-country applicants were granted asylum or exceptional leave to remain compared to 10,915 port applicants. A further 17,475 in-country applicants were granted asylum or exceptional leave to remain on appeal compared with 4,445 port applicants. Do those figures not support the point?

Photo of Lord Judd Lord Judd Labour

I am glad to give the noble Lord, Lord Dholakia, the opportunity to make that important observation. Governments encounter difficulties and changed circumstances during the passage of legislation that require them to introduce a recommitment process to reconsider points. Let us, therefore, consider what sometimes happens in the reality of life for some refugees as regards how they approach their rights and what they should or should not be doing. We should show more understanding of that.

I conclude with the observation that what matters is that every single person who is entitled to asylum gets it. What matters, therefore, is the case for asylum, not an administrative consideration of when an application was lodged or from where, whether it was a suitable place administratively for the Home Office, and so on. The issue is the merit of the case before us. If we lose sight of that, we have lost sight of the whole principle of commitment to asylum.

Photo of Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville Conservative

I follow the remarks of the noble Lord, Lord Judd, on "as soon as reasonably practicable". The noble Earl, Lord Russell, will recall sitting in the Gallery when we were discussing these matters in the House of Commons in 1996. At that stage, for constituency reasons, I expressed concerns about the provisions that the then government were bringing in, particularly in the context of sleeping rough, to which the noble Earl, Lord Listowel, referred a moment ago. The refugee whom the noble Earl describes, who has made the journey halfway across the planet, may not be quite as trusting of someone in uniform as the noble Earl believes him to be. Those who have come here because they are being harassed in their country of origin may have grounds for being unenthusiastic about people in uniform rather than the opposite. It may take them time to adjust to the circumstances here.

To give an indirect example, during the Recess I was talking to a family friend whose daughter is married to a farmer in Zimbabwe. At that time they were still farming. He said that he was not concerned about either his daughter or his son-in-law because they are adults and so can make up their minds about where and how they live and what they do. His concern was about his grandchildren, who are aged eight and four. He said that they came over during the Recess for a holiday with their grandparents. Within half an hour of their landing at Heathrow and his collecting them to take them home, the elder of the two boys asked in the car, "Granddaddy, are there war veterans in England?" Out of the mouths of babes and sucklings come such fears.

Photo of Earl Russell Earl Russell Liberal Democrat

I apologise for troubling the Committee further. We have been reminded that Amendment No. 5 is grouped with Amendment No. 3. Nobody on these Benches has yet said anything to it, and I think that we should.

I am not clear about the exact aim of Amendment No. 5, and I would be grateful for clarification. Are we talking about information about the applicant's means of supporting himself, or about information on the asylum claim? Does every single misstatement disqualify an applicant under Amendment No. 5, or is it only the refusal to co-operate with the authorities? That is an important distinction, because I have seen applications being turned down because of an error of one day in the memory of an applicant who is in jail without access to paper. It is notorious that on chronology memoirs of all sorts are a particularly unreliable source.

The House may remember my intervention during the speech of the noble and learned Lord, Lord Mayhew of Twysden, last week. In quoting a case from the reign of Richard II, I made an error of one year in the date that I gave, for which I apologise. I would not have thought, and I would hope, that that does not totally disqualify my credibility. If I can claim that, I hope that an applicant for asylum can claim it even more. I hope that this provision will not be applied in the case of every trivial error. The doctrine of de minimis non curat lex—the law takes no account of trifles—needs to be applied. If we were to include only the refusal to co-operate with enquiries, that might be reasonable. I hope that the Minister will reduce the provision to that rather than put it forward in this form. At present it is liable to lead exhausted officials into temptation, which they are not always very good at resisting.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

One factor in people's failure to apply for asylum at the port of entry is that they may not have a passport, perhaps because they are not on good terms with the authorities in their own country. I would be grateful if the Minister could explain what happens if someone applies later because they were concerned about applying without a passport.

Photo of Lord Joffe Lord Joffe Crossbench

This clause is based on the premise that refugees know that they need to apply for asylum. It would astonish the noble Lord, Lord Corbett, and, I think, many other Lords to learn that many refugees do not know that they need to apply for asylum. When people are in great danger, working and opposing a government in a country with very few laws, England seems like a beacon of light where they assume that they will be welcome. It does not occur to many refugees until a considerable time after they arrive here that they need to apply for asylum.

When I came to this country as a refugee 35 years ago, I thought that I would be welcome—as a lawyer, I ought to have known better. I did not know that in the United Kingdom, which was regarded as the one country that would be totally sympathetic to one, refugees needed to go through a process of applying for asylum. Many refugees still assume today that they do not need to do anything other than get to this country, which they have been brought up to believe is one where freedom prevails. Obviously, once refugees have been here for some time, almost all of them will learn otherwise. The basic assumption that refugees know that they need to apply when they arrive is not correct.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

I support the noble Lord, Lord Joffe. I do not speak idly. I speak from experience as a lawyer in a local practice and in the West End of London. People do not readily understand the need to apply for asylum or their legitimate rights immediately. I wish that my noble friend would understand that. People are inarticulate, particularly if they have gone through a terrible time in their recent past.

I practised as a solicitor in the London Borough of Hackney for a number of years. I wished that all my clients had been articulate so that they could have expressed to me their rights and needs. But people are not always like that. It is easy for the authorities to expect too much and my noble friend is guilty of that.

I have a great deal of sympathy with the remarks of my noble friend Lord Judd. We are both speaking from our knowledge of people; how they react; what are their immediate concerns; how they express themselves. I wish that they were more capable of articulating their cause, but they are not always.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I thank Members of the Committee for a good range of challenging questions. I shall try to deal with them as fully as I can without being unduly long-winded. The noble Baroness, Lady Anelay, asked about the definition of "families with children": the family couple or lone parent with a dependant child under 18. "Dependant" is defined in Regulations 2.4 of the Asylum Support Regulations 2000, or regulations to be made under Clause 19 accommodation centres.

The noble Baroness also asked what is reasonable. Clearly, much careful thought must go into the definition of the guidance and into what can be put in the public domain. She gave an example of someone who landed in Dover and immediately developed acute appendicitis. It would be clear that it would not be reasonable to expect such a person immediately to have claimed asylum when he or she was in the throws of such an illness.

As regards advice, we would expect that people would have opportunities to receive advice. That would be true at induction centres and we would not always be of the view that legal advice was necessarily the sole or prime form of advice. Advice on how to make an application for NASS support would be the issue—it would be on how to make a timely application rather than about the detailed asylum regulations.

As regards the back-of-the-lorry example, I am reluctant to be drawn into detail from the Dispatch Box. The Secretary of State, or the NASS officials who would make a judgment in those circumstances, would have to decide whether, based on what the person told them, it appeared that he had reasonable grounds for delaying making a case for asylum and an application for support.

I was asked by the noble Baroness, Lady Anelay, how the local authority would know. Local authorities have for some years been identifying asylum seekers for a variety of reasons and we believe that they will not have much difficulty in identifying and refusing to support those who have been refused NASS support for making a late claim. We will of course be issuing extra guidance to help local authorities address this and will be consulting with the LGA and local authorities about those regulations. We would try to ensure that the situation was clear and that people were given the best help to act reasonably under the terms of the Act. I will not go into more detail on that. Rather than detain the Committee excessively now, I might write to the noble Baroness setting out the position in a little more detail and sending copies to all Front Benches.

I was asked whether guidance will be published. Yes, we will publish guidance on this matter, although it will be qualified by the point we referred to previously. It has to be pitched at a level which indicates the main principle without—how shall I put it without being pejorative?—making it a charter to help those who want to avoid or to deceive the system. It is not likely to be before Royal Assent, but clearly it has to be in the public domain and available to those who have to exercise the judgments and those who have a reasonable interest in understanding how the system will operate—for example, the NGOs—before the measures kick in.

The noble Baroness, Lady Anelay, asked whether it was "or" or "and, and, and". It is an occasion on which I shall be careful in giving a short answer. We see no reason to restrict explicitly the possibility of declining to entertain an application for support in cases where the Secretary of State is not satisfied on two or more grounds rather than one. To put it more simply, there will be occasions on which insufficient information is given to allow an application to be considered but the application form has to be returned for provision of the missing information. That happens now and it could happen in the future. It is common sense.

Alternatively, an application form may have been completed fully but turn out to contain inaccurate information. That may be through error or intent. In either case, consideration of the application will have to await correction of the information, however complete the information will have been. I hope that that answers the question.

The noble Lord, Lord Campbell of Alloway, challenged me to respond to a report of the JCHR before it had met and before it had published its report. On both grounds, he had the advantage over me but he gave us notice of the questions. It may be helpful if I give an initial view on them, making it clear that it is without prejudice, first, to further reflection and, secondly, having the opportunity to see what the JCHR actually states and being able to respond by the Report stage or earlier if time allows us, which it may well not.

He first asked for a categorical assurance that assistance will be available to all those who would otherwise be left destitute. The short answer is, no, only if they reach the Article 3 ECHR threshold. I will later respond to the question asked by the noble Earl, Lord Russell, about Article 3. It is up to the asylum seeker to ensure that he or she makes asylum claims as soon as is reasonably practicable.

Secondly, he asked whether there must be a causal connection between some improper act or omission by the person concerned on being left homeless or destitute. An asylum seeker must make his asylum claim as soon as reasonably practicable. Not to do so may suggest that he has come to the UK for reasons other than a genuine well-founded fear of persecution.

Photo of Earl Russell Earl Russell Liberal Democrat

Are the Government prepared to consider the possibility that a delayed claim may be the result of trauma through torture or similar treatment? It happens and not to allow the possibility is not to consider the evidence completely.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

The short answer is yes, the Government are prepared to consider that a delayed application might be the result of torture or inhumane treatment. I hope that I am clear on that. The test would be whether there appeared to a reasonable person to be evidence to support that.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

Will my noble friend amend his remarks to include a threat of torture?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I shall not be drawn into drafting draft regulations from the Box. I shall reflect on the matter, but it seems that there is potentially a significant difference between a person who has experienced torture and a person who has felt threatened by torture. A person who has been threatened with torture may well have fled to this country for that reason. I would not, on the face of it, be convinced that there was not a reason for that person to claim asylum. I do not think that it would be particularly fruitful to go into great detail. If there are further reflections on the matter, I shall be pleased to write to Members. I am not saying that there necessarily will be further reflections.

The third question was whether the burden of proof should rest with the Secretary of State in establishing the conditions for withholding the support necessary to ensure compatibility with the human rights of those left without adequate housing, food or clothing. The Secretary of State has a duty under the Human Rights Act 1998 to act compatibly with the convention rights including Article 3. So, if a person claims Article 3 destitution, the Secretary of State will have carefully to examine his claim. I shall return to that issue and perhaps to others. I have missed out the last two.

The fourth question dealt with the issue of appeal to an adjudicator for those deemed ineligible for support, and the power to provide support pending the outcome of an application for judicial review. It is true that there is no such power, but applicants do not necessarily need state support in order to pursue the judicial review claim effectively. They can obtain advice and assistance from the relevant government-funded bodies. If they meet the merit test for legal support, they can also obtain funding for the application from the Legal Services Commission.

The fifth point was that there are no adequate safeguards under the UNCRC or the ECHR in relation to the violation of the rights of children, or under the ICESC in relation to those of adults. Those rights, however, protect against violation of the conventions as defined by the 1998 Act. Children are protected in the Government's amendments. Families with children will obtain support from the Secretary of State in the same way as at present, even if their asylum claim was made late.

I tell the noble Lord, Lord Dholakia, that I have not had sight of the Joint Committee on Human Rights report. However, we have carefully and fully considered ECHR issues. As for the alleged report about Sir Bernard Crick, I have not seen the report and I do not know whether it was accurate. I hope that it was not, and I would be surprised if it had been stated in quite that way. As they cannot respond, I do not think that civil servants should be berated in this Chamber even by means of reported speech. There is also a fairly well-founded tradition that, if affairs are not managed according to the standards which the House or others think appropriate, Ministers and not civil servants should bear the responsibility. I shall say no more about that now.

As for the reference to the Refugee Council, I shall look at the report, albeit it came out some time ago. It would be interesting to see it. I shall say no more about that now.

The question from the noble Earl, Lord Russell, was in a sense about the 1996 Act, with which there were one or two problems. The matter was dealt with in primary—not secondary—legislation in which there were clearly one or two holes. I should perhaps not respond about the growth in numbers. We could benefit from a debate, perhaps during the dinner break when we have forgotten this Bill, on some of those issues. We could discuss, for example, what constitutes a better system and how to move towards it. I would welcome that opportunity from wherever it comes. We can discuss that matter when we have dealt with the important detail of this legislation. I may write to the noble Earl on some of those points rather than engage in them now. I do not want to delay our consideration of other issues, but I recognise the validity of those questions.

We are not trying to deter refugees, but we recognise that we have to act to deter illegal economic migrants. The noble Lord, Lord Judd, is absolutely right. Many of those who come to this country, clandestinely or directly, and who use the asylum mechanism as a way of making a better life for themselves come from very poor countries and are desperate and destitute. One can understand why they attempt to come here. However, the Government have to operate under the 1951 Refugee Convention principles. An alternative argument is that there should be free movement of labour. People can make that argument if they wish, but I do not agree with them. I do not think that that position is a sane way of dealing with world poverty.

Photo of Lord Judd Lord Judd Labour

I am grateful to my noble friend. Not many of those putting forward the point that I tried to make would argue for the free movement of labour; we do not think that it is a practical proposition. We are, however, saying that the system is flawed. In a flawed system, we must be careful—in the language we use and the way in which we deploy our arguments—that we do not suggest that the unfortunate victims of this flawed system are pariahs. We should recognise that they are victims of a flawed system. Of course, we have to operate the flawed system as best we can, and that requires firmness. However, the language and the culture surrounding it are terribly important.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

The language is important. Many of those trafficked into this country are victims of the system. At the same time, we are getting into 16th century theology, as they also have some free will and some measure of responsibility, albeit they may be trapped in particularly difficult circumstances. I shall not go further into that as it would delay our proceedings.

The noble Earl, Lord Russell, asked about "reason to believe". A belief must be reasonable if there is no expressed requirement on the face of the statute for the belief to be reasonable. Therefore, it is also judicially reviewable.

There was some debate about the differential between benefits in European Union states. These amendments are not arguing that our welfare support to asylum claimants is too great. That is why we have been arguing with our European Union colleagues about the importance of seeking to establish minimum reception conditions for asylum claimants across the European Union. In practice, the standards that are close to finalisation will produce a levelling up. They are not likely to require the United Kingdom to do much, if anything, to our standards. The amendments are not an argument or an attack on welfare support but address the issue of whether people should be entitled to the welfare support that the state provides.

The noble Earl, Lord Russell, is right about the role of world events. I shall not go further into that now, for reasons that I have already given. Similarly, I shall not deal now with our welfare support levels compared with those of other European Union countries, although I should be happy to correspond on it with Members who are interested.

As to the more specific issue of Article 3 of the ECHR, it is accepted that, in certain circumstances, it is possible for the withdrawal of support from an asylum seeker or former asylum seeker to constitute treatment within Article 5 of the ECHR. Such withdrawal of support is clearly capable of being so treated. The mere fact that a person is destitute does not necessarily mean that he has reached the high threshold which the European Court has held is required before there can be a breach of Article 3. This high threshold has been held to be reached in cases where, for example, a person is to be returned to a country where he will face torture. The fact that someone is homeless does not necessarily mean that there has been a breach of Article 3.

I shall not go into more detail on that point, but I may write to the noble Earl, Lord Russell, about it. However, we are talking not about the withdrawal of support, but about the decision not to grant support. I think that that has a significant bearing on how the law will apply in practice. I say that with my usual caution as a non-lawyer.

There have been some questions about how reasonable it is to expect people to know that they should apply for asylum when they come here. I shall, without prejudice, reflect on those questions. There have also been some good questions about how the Government should publicise such a responsibility. If a person did not know about the requirement, and could make a reasonably persuasive case that they did not know about it to the person exercising the judgment, he or she would clearly not be caught by the provision.

There is a further point; namely, to put it bluntly, it is in the interests of traffickers that the people they traffic into this country should get support as that increases the likelihood that those people will in some cases be able to send sustenance back to their home country and pay their debts. According to our evidence, many if not all traffickers are reasonably well-informed.

The noble Earl, Lord Listowel, asked about a possible rise in the number of rough sleepers. The short answer is that the people we are discussing have been supported up to now and have been living somewhere up to now. However, I take his point about the importance of good information. The noble Earl also referred to the vulnerability of young asylum seekers. All we seek to achieve is that people claiming asylum and support should do so at the earliest possible opportunity. If they are delayed in doing so, it will be open to them to provide full and complete information explaining why. If that explanation is credible, we shall accept it.

I should also make clear the distinction between claiming asylum and claiming support. The clause we are discussing is concerned with claiming support. If a person claims asylum late, his or her case will still be considered in exactly the same way on exactly the same principles. As I say, the clause bears only on the question of support.

The noble Lord, Lord Hylton, referred to an information gap. I believe that I have touched on that matter but I shall reflect on it further to see whether I can add to those comments. I am grateful for the welcome that the noble Baroness, Lady Carnegy of Lour, gave to the amendment and to the need to try to bring more order into the system and to reduce fraud. I say in passing that there have been 167 prosecutions this year alone in regard to people who have submitted multiple applications for asylum and support. In other words, they have submitted multiple applications in either their own name or different names to access support.

Photo of Lord Avebury Lord Avebury Liberal Democrat 6:00 pm, 17th October 2002

Will not that offence be eliminated once the system of cards is universally applied?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

We would hope so. I merely commented that there is fraud in the system, as I am sure no one in this House would deny. However, it is difficult to quantify how much for obvious reasons.

The proposed new subsection (5) in the amendment prohibits the Secretary of State from providing support. Without subsection (5), subsection (1) might be interpreted as meaning that support should not be provided even if a person has reached the Article 3 threshold. Subsection (5) makes clear that there is no intention to breach Article 3.

The noble Lord, Lord Dubs—

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

Is that necessary? Why is it necessary? It simply states that the Secretary of State and those providing support must keep to the law.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I heard the point. I have given an initial answer. I do not think that I can do much better than that at the Dispatch Box today. However, I shall write to the noble Baroness. I hope that I shall be able to satisfy her on that point.

The noble Lord, Lord Dubs, asked whether there is a right of appeal if a person makes a mistake. There is not a right of appeal but there are certain safeguards. First, the person is at liberty at any time to ask to put further information before NASS. A person can say, "I have thought further and I want to tell you more about what happened, where I came from and where I have been". That door will be open. Secondly, if a person makes a second application, a second pair of eyes should consider it. That seems right and reasonable. Thirdly, the matter is open to judicial review and ultimately, in certain cases, challengeable under ECHR.

Photo of Lord Dholakia Lord Dholakia Party Chair, Liberal Democrats

Will the Minister confirm that the staff of NASS and not those of the IND will interview applicants?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

That is correct. I turn to the comments of the noble Lord, Lord Judd, some of which concern a debate that we may have subsequently.

Photo of Earl Russell Earl Russell Liberal Democrat

If NASS does what we are discussing, would it not be judge and party in its own cause?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

NASS would act for the Secretary of State and would be under a responsibility to act reasonably. NASS would act under guidance and would be aware of the importance of taking care in arriving at a judgment. I referred to a second pair of eyes as a means of trying to increase the robustness and the protection afforded by the measure. I hope that that provision is useful to the Committee.

I shall not refer to the points made about wider support for the system although I would be happy to discuss that matter outside the Chamber. I believe that I have answered most of the questions that can reasonably be answered at this point in time. However, if I discover when I read Hansard that that is not the case, I shall respond at that point.

Photo of Earl Russell Earl Russell Liberal Democrat

I refer to a material matter on Amendment No. 5. Does the misleading information relate to the claim for support or the claim for entry?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I thank the noble Earl for referring to that important question. The measure requires a person to provide full and accurate information not only about his state of destitution but also about the timeliness of his asylum application; it is not concerned with the merits of the asylum claim itself. I believe that that addresses the nub of the noble Earl's question.

In summary, we believe that the measure we are discussing is necessary and that it will lead in time to a more orderly system. The measure will result in those who have a good case for refugee protection having their case heard earlier and will allow us to move towards a more stable system. I hope that that will increase public confidence as regards introducing more resettlement schemes. The measure constitutes a better means of addressing world refugee problems which are not adequately addressed under the current system.

Photo of Lord Judd Lord Judd Labour

Before my noble friend sits down, I hope that I may raise one point. His response to the points that were made was again exemplary. The courtesy and detail with which he treats the Committee is outstanding. I draw my noble friend's attention to the fact that he said that support was in the interests of traffickers. Migration and asylum are subject to a big criminal business which constitutes a cruel, cynical affair. I do not believe that anyone in this House believes that there should not be draconian treatment for those responsible for that. But is my noble friend really suggesting that one deals with these vicious, wicked people by punishing the innocent victims of their activity?

Photo of The Earl of Listowel The Earl of Listowel Crossbench

Before the noble Lord answers that question, I hope that he will forgive me if I put one further question to him. I did not wish to interrupt his flow earlier. He kindly responded to my question about a risk of increasing the number of people sleeping rough. If I understood him correctly, he said that the people we are discussing had been living somewhere up to the point of their application. I take that point. The boy that I mentioned was living somewhere. However, he was in stressed accommodation. Many of the people we are discussing live in very poor, overcrowded accommodation with all kinds of risk factors in terms of pushing them on to the street and into rough sleeping. Given the great efforts that this Government have made to tackle rough sleeping, which are universally acknowledged, I hope that the Minister will be good enough to write to me to offer me a little more reassurance. I hope that he can state that he does not think that the measure will lead to an increase in the number of people sleeping rough.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I shall write to the noble Earl, Lord Listowel, although I am not certain that I can offer massive comfort. However, I shall do my very best to try to set his mind at rest. I take seriously the point made by my noble friend Lord Judd about traffickers. I am advised that I may have referred to Sir Bernard Crick as a civil servant, which is probably an insult to him and to civil servants. If that is the case, I wish to correct that.

Photo of Lord Kingsland Lord Kingsland Conservative

Before the Minister concludes, I wish to ask him a question about the last matter that he raised. In response to remarks made by the noble Lord, Lord Dholakia, the noble Lord, Lord Filkin, read out a statement about the relationship between responsible Ministers in Parliament and civil servants. I believe that the noble Lord said that, because responsible Ministers in Parliament answer for civil servants, it is inappropriate for a Member of Parliament, whether in another place or your Lordships' House, to criticise a civil servant. As I understand it, that was the import of his remarks.

That is a statement about a great parliamentary tradition which, alas, has long vanished. Some believe that it vanished soon after the famous resignation of Sir Thomas Dugdale over the Crichel Down affair. Surely the position now is that if a civil servant makes a mistake and the responsible Minister is not prepared to resign over it, it is perfectly appropriate for remarks to be addressed to that civil servant; otherwise, Parliament would wholly lose control of political events: it would be forbidden to reproach a civil servant although a Minister had done nothing about the civil servant's mistake.

I apologise for raising a matter that is not germane to the substance of the Bill; but the Minister read out a fairly stiff statement on this issue. I felt it important that the matter be aired a little more than it has been so far.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I shall enjoy and value reading what the noble Lord, Lord Kingsland, said. I recollect Crichel Down and what has not happened—sometimes—since. The nub of what I was saying—perhaps I did not express it as clearly as I should have done—was that it felt to me (I put it no more strongly than this) uncomfortable to criticise, for example, how NASS runs and the civil servants who run NASS. That was not what was said. What was said was that the civil servants in NASS were second-grade people. That seemed to be a very different kind of remark; that has not been my experience of the civil servants whom I have met. I do not know whether the noble Lord, Lord Kingsland, was present when we addressed that issue. I was seeking to make that distinction in relation to the remark that I found particularly painful and offensive.

Photo of Lord Kingsland Lord Kingsland Conservative

I was not seeking to underline the veracity or otherwise of the substance of what the noble Lord, Lord Dholakia, quoted. I was responding to the reaction of the Minister to that quotation and asking him whether, on mature reflection, the degree of generalisation that he invoked was appropriate in our modern constitution. The Minister kindly said that he would look at what the noble Lord said. We may or may not return to this matter at a later stage.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

The Minister has been very keen to move his Amendment No. 3. However, we have to follow rather arcane rules today because in recommitment our amendments are addressed to the noble Lord's amendment, which means that on this occasion I have to withdraw my amendment first—if that is what I am about to do; I assure the noble Lord that I am.

Our considerable and detailed debate proves that it was right for the Government to agree to the House's request that we should have a recommitment on these matters. I, and, I am sure, other noble Lords, will look carefully in Hansard at the Minister's full and careful answers. There have been a considerable number of speeches from different points of view from all parts of the Committee. The Minister and I have had the stereophonic sound of disagreement from behind us on these matters.

I repeat my opening remark that my amendments are probing amendments and that I support the government amendment in this regard. I am grateful to the Minister for saying that he will write to my noble friend Lady Carnegy, who, with her usual careful attention to drafting, has perhaps signalled where there may be otiose words in the Bill. I look forward to seeing his response to her. I beg leave to withdraw the amendment.

Amendment No. 3A, as an amendment to Amendment No. 3, by leave, withdrawn.

[Amendments Nos. 3B to 3M not moved.]

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 103; Not-Contents, 39.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 6:25 pm, 17th October 2002

moved Amendment No. 4:

After Clause 53, insert the following new clause—

"PROVISION OF SUPPORT BY LOCAL AUTHORITY

(1) Section 99 of the Immigration and Asylum Act 1999 (c. 33) (provision of support by local authority) shall be amended as follows.

(2) In subsection (1)—

(a) after "local authority" insert "or Northern Ireland authority", and

(b) at the end add "or 98".

(3) For subsections (2) and (3) substitute—

"(2) Support may be provided by an authority in accordance with arrangements made with the authority or with another person.

(3) Support may be provided by an authority in accordance with arrangements made under section 95 only in one or more of the ways mentioned in section 96(1) and (2)."

(4) In subsection (4)—

(a) for "A local authority" substitute "An authority", and

(b) at the end add "or 98".

(5) In subsection (5)—

(a) for "a local authority" substitute "an authority", and

(b) in paragraph (b) for "bodies who are not local authorities" substitute "other bodies"."

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

Government Amendments Nos. 4 and 6 ensure that local authorities have the power to enter into contracts with the Home Office in respect of NASS emergency accommodation, induction centres and accommodation centres. We found it necessary to put these provisions into the Bill because, having believed that existing provisions in the Local Government Act 2000 would be more than sufficient for these purposes, on mature reflection we concluded that that may not be the case, and we decided to put the matter beyond all reasonable doubt. I believe that it is right to do so.

It is worth saying that NASS has existing powers in the Immigration and Asylum Act 1999 which enable it to enter into contracts with local authorities in respect of accommodation under Section 95 of the 1999 Act—generally referred to as "dispersal accommodation". However, to date, NASS has contracted with the voluntary sector for the provision of emergency accommodation under Section 98 of the 1999 Act. NASS is currently looking to expand the range of providers used for emergency accommodation. A number of local authorities have expressed an interest in assisting in providing such accommodation and in running induction centres on behalf of NASS. In order to do so, they need to be assured that they have the necessary powers. That is a very simple explanation as to why we require the amendments to be put into the legislation. I beg to move.

Photo of Lord Hylton Lord Hylton Crossbench

This amendment gives one the opportunity to raise questions concerning the administration of NASS. As I understand it, that administration is very much centralised in its head office in Croydon. That has given rise to numerous complaints, many of which have been recorded by citizens advice bureaux. The national office of the citizens advice bureaux has published a pamphlet drawing attention to the volume of complaints which are concerned with the remoteness of the administration of NASS and the difficulty that individuals encounter in finding the right official to address when things begin to go wrong.

I also understand that no less than £68 million of lottery money has had to go to a whole range of voluntary organisations which deal with asylum seekers. Much of it has been directed to voluntary organisations which support people in the dispersal areas. That seems a strange lacuna; it indicates that something is seriously wrong with the way official support is provided by NASS. I hope that the Government will be able to consider this matter extremely carefully. It seems that several administrative improvements are most urgent.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I am grateful to the noble Lord, Lord Hylton, for raising those questions. I am not sure that they are entirely relevant to the amendments before us, but I shall try to deal with some of the points raised.

We are aware of the recent NACAB report. All reports of such a nature fall to be acknowledged, thought through and understood. The department is closely considering some of the points which were properly included in the NACAB report. We have had discussions before on this issue. I am grateful to the noble Lord for raising the points again. We are happy to write to him on some of the issues that he has helpfully raised tonight.

In tabling the amendments we are seeking to work with a range of partner organisations and agencies. One might properly argue that that is a form of devolution, a sort of decentralisation. The point made by the noble Lord is valuable. We are grateful to him for raising such points. We are happy to try to clarify some of the points of detail in writing.

On Question, amendment agreed to.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

moved Amendment No. 5:

After Clause 53, insert the following new clause—

"APPLICATION FOR SUPPORT: FALSE OR INCOMPLETE INFORMATION

At the end of paragraph 12(c) of Schedule 8 to the Immigration and Asylum Act 1999 (c. 33) (asylum-seeker support: procedure: disregarding of application) there shall be inserted "(which may, in particular, provide for an application not to be entertained where the Secretary of State is not satisfied that the information provided is complete or accurate or that the applicant is co-operating with enquiries under paragraph (d))".

[Amendments Nos. 5A to 5F, as amendments to Amendment No. 5, not moved.]

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 101; Not-Contents, 34.

Division number 2

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

Clauses 54 and 55 agreed to.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 6:41 pm, 17th October 2002

moved Amendment No. 6:

After Clause 55, insert the following new clause—

"NORTHERN IRELAND AUTHORITIES

(1) In section 110(9) of the Immigration and Asylum Act 1999 (c. 33) (support: payment to local authority: Northern Ireland authority) after paragraph (b) there shall be added—

"; or

(c) a Health and Social Services trust established under the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1)."

(2) In section 94(1) of that Act (support: interpretation) after the definition of "local authority" there shall be inserted—

""Northern Ireland authority" has the meaning given by section 110(9).""

On Question, amendment agreed to.

Clause 56 agreed to.

Clause 75 [Adjudicators]:

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

moved Amendment No. 7:

Page 44, line 39, at end insert ", and

( ) may appoint one or more adjudicators as Deputy Regional Adjudicator."

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

Amendment No. 7 creates a new office of Deputy Regional Adjudicator. Amendment No. 8 sets out the duties and functions of a deputy regional adjudicator. It may help the House if I briefly provide some background to the amendment. The Immigration Appellate Authority (IAA) has been working steadily to expand its capacity for asylum appeals since October last year. The organisation will begin receiving 6,000 cases each month from November 2002. This is an increase from 4,000 cases received per month in October last year. In support of this expansion, the IAA is opening a number of new hearing centres across the country.

We are taking this measure as a result of the considerable productivity demands being placed upon adjudicators and the need for greater judicial management in the new network of hearing centres. Currently judicial management is provided through regional adjudicators, with the chief adjudicator and his deputy having an overview of the system. These offices are all provided for in statute. The judicial management requirement for a deputy regional adjudicator will be considerable, with day-to-day involvement in case management, mentoring and performance monitoring. The new arrangements would have salary implications which will be borne from funds agreed for IAA expansion. I beg to move.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

It has been explained to me by the Minister's department that the adjudicators will be appointed by the Lord Chancellor in Scotland. Will Scotland be considered a region under these amendments? I do not believe that that will go down well.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

I do not have a specific answer to that. My gut reaction is that it will not. Perhaps I can write to the noble Baroness to let her know whether I am correct. I fully understand that there may be certain sensitivities if the matter is not dealt with appropriately.

On Question, amendment agreed to.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

moved Amendment No. 8:

Page 45, line 6, at end insert—

"( ) A Deputy Regional Adjudicator—

(a) may act for the Regional Adjudicator whose deputy he is if the Regional Adjudicator is unable to act or unavailable, and

(b) shall perform such other functions as may be delegated or assigned to him by the Regional Adjudicator whose deputy he is or assigned to him by the Chief Adjudicator."

On Question, amendment agreed to.

Clause 75, as amended, agreed to.

Clauses 76 to 87 agreed to.

Clause 88 [Appeal from within United Kingdom: unfounded human rights or asylum claim]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 9:

Page 50, line 11, leave out from "76(1)" to end of line 13 and insert "where the appellant has made an asylum claim or a human rights claim (or both)."

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

On a previous occasion we debated the arguments for introducing non-suspensive appeals where an asylum or a human rights claim is certified by the Secretary of State as being "clearly unfounded". The substantive amendments put down to Clause 88 and to Clause 107 build on this provision by introducing a list of countries where the claim is presumed to be clearly unfounded. Let me begin by explaining why we have decided to introduce such a list.

The United Kingdom has a long tradition of considering every asylum claim individually to see whether a person would face persecution in his own country. That tradition will continue: it is not affected either by the existing terms of Clause 88 or by the introduction of a list of safe countries. I am sure that your Lordships will agree that in assessing an asylum claim a crucial consideration is the conditions in the country in which a person is claiming they fear persecution. Individual factors must be considered, because there will always be some cases that depart from the norm. But clearly individuals, such as those present in this House, who are fortunate enough to live in a stable democracy, with an effective criminal justice system and a respect for human rights, will be far less likely to have a genuine fear of persecution than counterparts in a war-ravaged country run by a despot.

We do not rule out the possibility that a person from a generally safe country can be a refugee. But we do rule out the possibility that many of them will be refugees. This statement is surely true when considering the 10 countries which are first in the queue to join an enlarged European Union: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. They have all had to pass a series of rigorous tests in order to satisfy the European Union that they are ready to join. Those countries are all democracies, with functioning criminal justice systems, a respect for human rights and a commitment to deal with elements of their society who seek to pick on minority groups.

Those are the kind of countries in which a person will be very unlikely to face persecution. That expectation is borne out in a number of ways: the fact that in the first half of 2002 there were only one or two decisions to grant asylum out of over 1,000 decisions taken; the fact that of those who appealed those decisions over 90 per cent had their appeals dismissed; and the fact that the independent Immigration Appeal Tribunal has said in several judgments on those countries how unlikely it will be for a person to show a well-founded fear of persecution.

It is therefore no surprise that earlier this week at the Justice and Home Affairs Council meeting in Luxembourg a declaration was adopted to the effect that member states should start from the presumption that any asylum application from a national of one of the 10 EU accession state countries listed in the Government's amendment is manifestly unfounded. The United Kingdom is therefore fully in step with our EU partners in taking the measures that we are debating this evening. This is a common problem for member states and it calls for a common response.

All the indicators are that those 10 countries are safe. Yet, despite that, the United Kingdom still receives a significant number of asylum applications from nationals of those countries. There were over 1,500 applications in the first half of 2002, with the rate rising between the first and second quarters; for example, figures from the Czech Republic rose from 80 to 595 between those two quarters, and the high figures were maintained over the summer months. And these figures just cover principal applicants: the numbers are considerably higher once dependants are added.

It would be wrong just to sit back and accept this situation. Dealing with all these clearly unfounded claims is not cost neutral. Far from it: there are considerable resource implications from processing these applications, and providing support, often for months, while we await the appeal hearing. At over £200 per family per week the costs soon mount up. Furthermore, if we do not act now the problems will just get worse as our EU partners take a firm stance reflecting the Justice and Home Affairs Council, to which I referred earlier, and as a result the UK would become an even more attractive destination.

It should not be forgotten that in dealing with all these cases we are diverting resources which could more usefully be employed processing more genuine claims. So other asylum applicants also lose out if we leave matters as they are.

The Government therefore consider that something must be done to ensure that these applications are dealt with rapidly. We have concluded that the sensible way to do this is to make clear on the face of the Bill that all asylum claims or human rights claims from people entitled to reside in one of these 10 countries will be certified as being clearly unfounded unless the Secretary of State in an individual case is satisfied that the claim is not clearly unfounded.

This measure does not, as I mentioned earlier, take away the right for a person to have his case considered on its merits. He will still be given a substantive interview. He will have the safeguards enjoyed by others who have made asylum or human rights claims which might be subject to a non-suspensive appeals certificate; for example, early access to legal advice and a second pair of eyes checking the decision of the first officer. But the measure will also make clear—as I think all fair observers would agree—that few applicants from these countries will have a valid claim.

In short, this is a common-sense provision which will improve the credibility of the asylum process in a manner consistent with our international obligations.

Some Members of the Committee may feel relatively comfortable about the 10 listed countries but uneasy about the scope for extending the list. This is an important point because the merits of having a list of safe countries largely stands or falls on the countries included on that list. There are two strong constraints on the power to add to the list of countries.

First, the order-making power to add countries to the list is subject to the affirmative procedure. Whereas the safe country list measures inserted into the 1993 Act by the 1996 Act provided for the affirmative procedure only in respect of the first order, under these amendments any order which seeks to add to the list of countries will be subject to such a procedure. So no countries will be added without Parliament having debated and agreed to the inclusion of those countries.

Secondly, the Secretary of State will have to be satisfied of two things before making an order. The first is that the state, or part of a state, being added is one where there is in general no serious risk of persecution of persons entitled to reside in that country. That test mirrors the 1993 Act provision.

Photo of Lord Avebury Lord Avebury Liberal Democrat

Why does the noble and learned Lord think that this is an adequate test when the Home Secretary in a letter to Labour MPs, which was discussed at his meeting with them yesterday, said that there was absolutely no risk at all?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

We are talking here about adding countries not presently on the list. He is not saying that there would be no risk at all in any country ever.

Photo of Lord Avebury Lord Avebury Liberal Democrat

This is exactly what he is saying. He said that,

"where there can be absolutely no doubt about their safety".

Those are the words used by the Secretary of State in his letter to Labour MPs.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

I have noted what the noble Lord says. He says that that is the test to be applied. I am saying that this is what is reflected in the Bill.

Secondly, the Secretary of State must be satisfied that removal to that country of persons entitled to reside there would not in general contravene the United Kingdom's obligations under the European Convention on Human Rights. In addition to inserting these two constraints in the Bill, the Home Secretary has said that we would consult with the independent advisory group that is being established about the assessment of risk in any country which the Government is thinking of adding to the list. Should circumstances change for the worse in any of the countries added by order they can, where appropriate, be removed from the list by order. So I think that concerns about the possible future use of this provision are satisfactorily addressed by the amendment.

The amendments to Clause 107 provide powers similar to those in Clause 88 but apply to appeals under the 1999 Act rather than to the new appeal arrangements created by Part 5 of the Bill. By amending the 1999 Act, Clause 107 will enable us to take action against clearly unfounded claims as soon as Royal Assent is achieved without waiting for Part 5 of the Bill to be brought into force. With the number of claims from accession states running at around 250 per month it is important that the new measures are activated at the earliest possible opportunity. That explains our amendments to Clause 88 and Clause 107 in relation to the list.

I now turn to the various opposition amendments tabled in response to the government amendments to Clauses 88 and 107. These amendments are concerned with a number of issues: the persons of a listed country to whom the provisions apply, the order-making powers to add to the initial list of 10 countries, and the ability to include parts of a state as well as a whole state on the list. It is additionally suggested that the non-suspensive process should not include refusals on human rights grounds. There is also an amendment to Clause 107 which would have the effect that during the transitional period from Royal Assent, when Clause 88 will come into force, to when the rest of Part 5 comes into force there would only be non-suspensive appeals against asylum refusals and not against a decision to refuse on human rights grounds.

I shall deal with each of the amendments individually. Amendments Nos. 12A, 12G and 12H would have the effect of somewhat expanding the category of people within a listed country to whom the new provisions apply. Under the government amendments they apply to those who are "entitled to reside" in a listed country. The main group of people we have in mind are nationals of the country in question. But there are also some people who live in a country who have not acquired citizenship of it. One example is Estonia where, although residents legally living there may apply for and acquire Estonian citizenship, not all do so. We believe that such people should be included since Estonia is their home country.

The proposed amendments go further by including those who are "temporarily" entitled to reside in a country. That could embrace people who are, for example, simply visitors or students there. We would not want the provisions to extend to these kind of cases. This would turn the provisions into something akin to third country removals since temporary visitors to a listed country would have a separate country of nationality against which an asylum or human rights claim would normally be assessed.

We think it is better to stick with the unqualified term and not to use the other adverb proposed in the amendments; that is, a person entitled to reside "permanently" in a listed country. Use of that term could cause difficulties. For example, in the United Kingdom there are people who do not have British citizenship but have indefinite leave to remain here. But they can be removed in extreme cases where deportation action is taken. This illustrates that the issue of permanency is not always that easy to pin down.

Amendment No. 12B seeks to omit the power to add to the list of 10 countries. I explained in some detail the safeguards that exist for how those powers can be used. But I have no doubt that the powers are needed. As time passes, it is to be hoped that an increasing number of states will strengthen their human rights records, such that their designation under this clause may become appropriate. It would be wrong not to be able to respond to real world situations by taking a power to add to the list of countries considered to be generally safe. That would simply lead to undue time being taken up by regularly passing primary legislation to update the list. I have no doubt that an order-making power, subject to the affirmative resolution procedure, is the answer.

Amendments Nos. 12D to 12F and 12J would leave the order-making powers in existence but restrict the circumstances in which they could be used. Amendments Nos. 12D and 12J would enable an order to be made only where the Secretary of State was satisfied that there was no serious risk of persons being persecuted and no contravention of the United Kingdom's European Convention on Human Rights obligations in removing a person. At first blush, that seems a sensible amendment with which it is hard to argue.

The difficulty, however, is that it would mean that in effect the Secretary of State could designate a country only if it were safe for every one of its residents. I regret that such a situation, desirable as it may be, does not currently arise in the real world. There is always the possibility that one or two people in a given area will face persecution and that the removal of a person may occasionally breach the UK's obligations under the ECHR—possibly for reasons wholly unconnected with the country of intended removal. For example, there may be an Article 8 breach involving family life.

It is because there is always the possibility in an individual case of a person making out an arguable asylum or human rights claim that we have retained individual consideration of such claims and not included a provision for automatic refusal of cases from the list of safe countries. The corollary of that is that the condition for a state to be designated should be one relating to general rather than absolute safety.

Amendment No. 12E is along similar lines. It would enable a state to be designated only where there was "no risk" of persecution rather than where there was "no serious risk" of such persecution. We consider that we need to qualify the term "risk". The courts have noted the difference between a mere speculative risk that a person may face mistreatment if returned to their country and a "real" or "serious" risk that such mistreatment will occur. In the former case, a person will not have made out a well-founded fear of persecution; whereas in the latter case they will have done so, provided that the feared mistreatment amounts to persecution. So the word "serious" does not set as high a threshold as it may first appear. Rather, it distinguishes between speculative and concrete risk. A serious risk need not be a probability but it must be a reasonable possibility.

Amendment 12F is, I think, intended to remove the scope to designate part of a state. It would unnecessarily limit the provision to restrict its scope in that way. There will be cases where a defined area of territory will be generally safe, such that most claims from individuals living in that area are clearly unfounded. A recent example is Kosovo. Because Kosovo is not a state, it would be impossible to designate that discrete territorial area without a power to add part of a state to the safe country list. I cannot see the advantage of taking away the ability to designate in such cases, and I therefore cannot support such a restriction.

The final amendment on Clause 88 that I want to mention is Amendment No. 12K. Its effect would be to enable any of the 10 countries listed on the face of the Bill to be removed by order, should the Secretary of State consider that appropriate. It would be unhelpful to have such a power. Those countries are on the fast track to joining the European Union, so it is reasonable to suppose that they will continue to be safe countries until that time. It would not be helpful to leave open the door for legal challenges to the Secretary of State's refusal to delete one of those countries from the list. Such would be the risk with this amendment.

In the extremely unlikely event that matters turned for the worse in one such country, that would not lead to any removals in breach of our obligations, because in appropriate cases the Secretary of State would be satisfied that a claim was not clearly unfounded and would accordingly not certify the claim.

Perhaps I may deal briefly with the amendments proposed to Clause 107. They largely mirror those proposed to Clause 88, so I shall not detain the Committee by repeating arguments made about that clause. However, one set of amendments is different. Amendments Nos. 18A and 18B, tabled by the noble Lords, Lord Dholakia and Lord Avebury, would make a non-suspensive appeal possible only during the transitional period while Part IV of the Immigration and Asylum Act 1999 remains in force, in cases where there is a decision to refuse an asylum application that is clearly unfounded but not a human rights claim.

The effect of that would be that whenever a person put forward a human rights claim, he would be entitled to an in-country right of appeal, even if both that claim and the asylum claim were clearly unfounded. Such an outcome would defeat the purpose of the provision because, in the majority of cases, Article 3 human rights claims and asylum claims overlap considerably. That would make the non-suspensive appeal provision wholly ineffective. I do not know whether that is the intention of the noble Lords who tabled the amendment, but, having regard to the purpose of the government amendments, that is not something that we can accept.

I am sorry to have gone on for so long, but it is helpful to put in context our amendments and the amendments tabled to them. I urge the Committee to accept the government amendments for the reasons that I have given and to reject the proposed amendments to them. I beg to move.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 7:00 pm, 17th October 2002

moved, as an amendment to Amendment No.9, Amendment No. 9A:

Line 2, leave out "or a human rights claim (or both)"

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

In moving the amendment, I want to speak also to Amendments Nos. 9A, 12B, 12C, 12E and 12G, 18A and 18B, 22A, 22B, 22C, 22E, 22F, 22H and 22J, all of which are grouped with Amendment No. 9 and stand in the names of my noble friends Lord Dholakia and Lord Avebury. They have also added their names to Amendments Nos. 12B and 12J, in the names of the noble Baroness, Lady Anelay, and the noble Lord, Lord Kingsland, but I shall leave it to them to speak to those.

In due course, I shall explain the amendments—indeed, the Minister has already to some extent done so. But our main position on the amendments is that we disagree with the concept of the white list in principle and therefore oppose the government amendments in the group. No country is 100 per cent safe—that applies even to the United Kingdom. We can certainly think of circumstances in Northern Ireland in which people may well be persecuted for their religious or political beliefs—not, of course, by the Government but by non-governmental groups such as the paramilitaries.

It is true that the existing members of the European Union are broadly speaking safe countries. Naturally, the corollary of that is that we receive few applications from citizens of those countries—who, if they want to be economic migrants, have a right to come to this country to take employment. But the safety that applies to existing member states is considerably less true of the countries proposed for inclusion in the new white list in the government amendment.

They are the candidate states or accession states. There is considerable reason to believe that human rights standards are lower and that there is a substantially greater risk of persecution in those countries. That is understandable—and not necessarily a criticism of those countries. All of them have effectively emerged within the past 12 to 15 years from domination by the Soviet Union or other communist governments. Obviously, it takes time to raise human rights standards to those enjoyed by the more fortunate countries of western and northern Europe for upwards of 50 years. The result is that, in the accession states, serious problems remain. One notable example is the position of the Roma, particularly in the Czech Republic. My noble friend Lord Avebury will speak in more detail than I have about the risks to which various groups of people are subject in the accession states.

Cases should be taken on their merits and should not be subject to any legal or statutory presumptions. It is true that cases relating to countries with high standards of human rights will be inherently less credible, but there will be many cases from such countries which, when heard, will be seen to be unfounded. However, a claimant should be entitled to present his or her case in the United Kingdom without any pre-hearing presumption and should be entitled to do so at the appeal, as well as at the preliminary hearing.

With regard to the Government's proposals, the United Nations High Commissioner for Refugees said:

"UNHCR does not accept that a country may be declared 100% safe. It is impossible to exclude, as a matter of law, the possibility that an individual could have a well-founded fear of persecution in any particular country, however great its commitment to human rights and the rule of law. It bears emphasising that the process of determining whether a country is 'safe' for a particular asylum seeker is itself the core objective of asylum procedures. This suggests that safe country lists are at odds with the fundamental premise of refugee protection that everyone has the right to seek and to enjoy asylum from persecution. It is a basic requirement of international refugee protection that asylum seekers are given access to fair and efficient asylum procedures without discrimination on the basis of the country of origin. A 'safe country' list must never be used therefore to bar asylum seekers from entering the asylum procedure altogether".

I shall also refer to the views of the Select Committee on the European Union, which considered the issues in its report Minimum Standards in Asylum Procedures, the 11th report in the 2000–01 Session. I was a member of the Select Committee and of Sub-Committee E, which prepared the report. Paragraph 122 of the report says:

"In the real world, with a large number of applications and perhaps relatively junior officials carrying out interviews and taking decisions, some guidelines have to apply in order to facilitate speedy decision-making. But while it would be absurd for public administrations, including determining authorities in asylum cases, not to be able to have a rule of thumb, the danger is that guidelines may be applied automatically and de facto replace the individual consideration of cases. Lists carry this risk. Nor do they remove the risk and delays of litigation. Certainly in the UK context, lists can be challenged, and recent experience shows that the designation of a particular country as 'safe' may be reached on an erroneous view of the facts or of the law, or both, and thus be 'plainly wrong'".

A later paragraph of the report refers specifically to the accelerated procedure that was authorised by the draft directive. It is not the same issue, but it seems to me that what is said with regard to lists in the case of accelerated procedures is equally applicable to the use of lists to prevent in-country appeals. Paragraph 133 says:

"if, as seems likely, Member States decide that the accelerated procedure will remain, we do not believe that it should apply to safe country of origin cases or, indeed, that there is any substantial advantage to be had in retaining that context in the Directive. The accelerated procedure for applicants from safe countries of origin means that their applications may not be scrutinised in the same detail as other applicants. This means that there is a greater danger of a breach of the principle of non-refoulement, i.e. that asylum seekers will be sent back to a country in which they may be in danger of serious harm. It is particularly important that the position of the individual is properly considered. This may not be overly burdensome. Anyone coming from a country with a widely acknowledged record of respect for fundamental freedoms and human rights would, in practice, have a substantial evidential burden to overcome".

In taking the view that we have, we have the backing of the UNHCR and of a highly regarded committee of your Lordships' House. The principle should be observed and should apply to the proposed amendments to the Bill.

If the new government amendments in the group are to apply, they should be modified. Amendment No. 9A ensures that claims under the European Convention on Human Rights cannot be certified, even if the asylum claims can. Claims under the ECHR would include claims under Article 3 that there is a threat to life or claims under Article 5 that there is a threat to liberty. In such cases, if there is any justification in such claims, there is a real risk to the safety of the claimant. In such cases, no presumption should be applied.

Amendment No. 12B prevents new countries from being added by statutory instrument. One might imagine that, if the list were extended, candidate states a little lower down the list—notably, Romania and Bulgaria—might be added. Although Bulgaria does not present particularly serious problems, Romania unquestionably does. There can be no doubt that Romania is not a safe third country for a large proportion of its population. It is true, as the noble and learned Lord said, that the affirmative resolution procedure will be used, but we do not believe that that, in itself, provides adequate opportunity for debate, particularly in the other place, where affirmative resolutions are dealt with summarily and without anything that the Committee would regard as adequate debate.

Amendments Nos. 12C and 12G would mean that, if the procedure set out at subsection (2)(b) were used to add new countries, it could not be used unless the Secretary of State was satisfied that there was no serious risk of persecution in any part of that state. Persecution has a nasty habit of spreading through a state. If there are parts of a state where there is a serious risk of persecution, that state should not be added to the white list, even if the situation is better in other parts of it.

Finally, Amendment No. 12E seeks to provide that a country cannot be added to the white list unless there is no risk of persecution. If there is some risk of persecution the claimant should be entitled to say, "Yes, there is some risk, and that risk is a serious risk for me". Therefore, this alteration to the Government's amendments is also justified.

The later amendments in the group which stand in our names mirror the amendments that I have already spoken to in relation to Clause 107 and I do not propose to say anything further about them. I beg to move.

Photo of Lord Kingsland Lord Kingsland Conservative 7:15 pm, 17th October 2002

I rise to speak to Amendment No. 12A. I shall refer also to Amendments Nos. 12D, 12F, 12H, 12J, 12K, 22D, 22G, 22K and 22L.

As my right honourable friend Mr Oliver Letwin has said, the Government's amendment to Clause 88 mirrors very closely a position advocated for some time by the Conservative Party and previously opposed by the Government, both when in opposition and when in government. Indeed, some two-and-a-half years ago, my right honourable friend, the then Leader of the Opposition in another place, said:

"It is extraordinary that we receive applications for asylum from countries which have now been formally accepted as candidates for EU membership. How can we say, on the one hand, that we accept that a country has the rule of law and good government that would qualify it to join the EU and, on the other, that we believe its citizens to be suffering systematic persecution?".

The amendments to the Government's amendment, tabled in my name and that of my noble friend, seek to probe points related to the detailed wording of the proposal before the Committee.

EWHC 1897.

I shall not rehearse the detailed circumstances of the case, which attracted considerable publicity when the Ahmadi family were removed to Germany by the Home Office. The issue relevant to the debate is the Home Office's view of what constitutes an entitlement to reside. That is the test laid down in the Government's amendment for the certification of a claim from one of the states as "clearly unfounded".

The Home Office's decision letter to the family, dated 13th August and quoted by Mr Justice Scott Baker at paragraph 16 of his judgment, stated:

"the family are no longer asylum seekers in Germany, having been granted residence there on humanitarian grounds. Therefore the family will not be settled in a reception centre as these facilities are for people whose asylum claims are being processed, and not for people in this family's position who have been granted residence in Germany.

Accordingly upon their return to Germany, the family will have settled rights of residence. This means that they will be housed within the Community and, as they are lawfully entitled to reside there, they will have full access to the various social and welfare provisions of the German state".

However, Mr David Pannick QC, counsel for the family, pointed out that these statements were erroneous on four grounds. One of these grounds was that,

"The claimants"— that is, the Ahmadi family—

"have not been granted residence. The grant of temporary protection in accordance with Section 53(6) of the Aliens Act entitles them only to tolerated status . . . The earliest they could be granted longer term residence status . . . is April 2003, but thereafter it is a matter for the discretion of the Bavarian authorities how they treat the period of this family's absence in the United Kingdom".

Mr Justice Scott Baker concluded at paragraph 54 of the judgment, by saying:

"Of more significance, however, is that there were significant discrepancies between what was said in the letter of 13 August and told to Mr Justice Roderick Evans"— that is, in the appeal proceedings prior to the family's removal to Germany—

"and the position as it turned out in reality. I cannot say that these errors of fact were immaterial to the Secretary of State's decision".

The point I am seeking to make is that it is clear from this judgment that the Home Office's view of what entitles a person to reside in Germany is very confused and, according to the judgment I have just quoted, not on all fours with the position in reality.

What does the phrase in the Government's amendment, "entitled to reside", actually mean in practice? Does it cover only permanent residence, or does it also cover temporary residence and other forms of protected status? I hope that the noble and learned Lord the Minister will be able to clarify the issue.

Secondly, I turn to Amendments Nos. 22 and 22D, which relate to the test under which the Secretary of State will be able to add further countries to the list in the amendment. The Government's wording proposes that the Secretary of State will be able to do this if he is satisfied that there is,

"in general . . . no serious risk of persecution", in that state, and that removal of persons to that state will not,

"in general contravene the United Kingdom's obligations under the Human Rights Convention".

The phrase "in general" is quite vague. What level of test will be applied by the Government when deciding whether or not to place a country on the list? Will there be an independent country risk assessment before the Government decide to include a country on the list? I ask these questions in particular because no less a luminary than the noble Lord, Lord McIntosh of Haringey, attacked the then Government in 1996 for seeking to use the same expression, at a time when he was Opposition spokesman for home affairs.

I have directed my attention to Hansard, and what do I find there? I find the following analysis of the expression "in general" by the noble Lord, Lord McIntosh of Haringey. He stated:

"It is extremely dangerous for us to accept that the judgment as to whether there should be a fast-track procedure for an asylum application is that there is 'in general' in any particular country a risk of persecution. Persecution does not happen in countries in general. It happens to people in particular. It happens particularly to minority groups in countries in which there is no risk of persecution in general to the majority but where there is a very serious risk to the minority.

Before I start to give examples, let me ask the Minister"— the then Conservative Minister—

"these questions. What does 'in general' mean? How would it be interpreted? Does 'in general' mean that 75 per cent, 90 per cent or 95 per cent of the people in a particular country need fear no risk of persecution? Is it a matter of the severity of the persecution? Would it mean that the risk could involve detention but not torture? Is it a matter of whether there is persecution not of groups but of individuals? All those questions, to which there are and can be no adequate answers, reveal the inadequacy and danger of the phrase 'in general'".—[Official Report, 23/4/96; cols. 1061-62.]

Those were the words of the noble Lord, Lord McIntosh, some six years ago.

Finally, Amendment No. 12 relates to the removal of countries from the list. As I read it, the Government's drafting of subsection (2D) of the amendment would mean that any country added to the list in future by an order passed under the affirmative resolution procedure could be removed by an order subject to the negative resolution procedure.

However, the countries specified on the face of the amendment will not be removable except by primary legislation. Is that the position that the Government intend? I do not expect any of those countries, which, after all, are candidates for EU membership, suddenly to become dangerous. I simply make the point to the Government that, in the case of events occurring, which may be totally unforeseen at this time, they may wish to remove one or more of these countries from the list—and that the wording of subsection (2D) would deny them the flexibility to do so.

Photo of Earl Russell Earl Russell Liberal Democrat 7:30 pm, 17th October 2002

I am entirely in agreement with everything that my noble friend Lord Goodhart has said about the views of the UNHCR and shall therefore not repeat them. I am also entirely in agreement with what the noble Lord, Lord Kingsland, said about the words "in general". If I am imprisoned, I am not imprisoned "in general". I am imprisoned in particular; and I mind it in particular.

The question of whether a country is safe in the abstract is totally irrelevant. The question raised by the former Leader of the Opposition referred to by the noble Lord, Lord Kingsland—namely, whether there is systematic persecution—is irrelevant to whether the person concerned happens to be being persecuted.

Perhaps I may give two examples from countries which are widely and reasonably regarded as safe. The first is our own country—and I hope that Ministers will realise by the time that I have finished my remarks that I intend no criticism whatever of this or any previous British government. The case I want to mention arose in County Tyrone, in the town of Dungannon. A group of masked men visited the village priest and asked him to convey to a certain pair of young men that their presence was no longer welcome and if they knew what was good for their health they would leave the country.

As I understand it, the two were perfectly willing to avail themselves of the protection of their own government but, given the circumstances in Dungannon, did not believe that they would be able to do so. In the words of Kirsty Wark of "Newsnight", it is a story in which there are no heroes. But it is not only heroes who are entitled to liberty. If those people had turned up in another country claiming to have a well-founded fear of persecution, their case would not have been manifestly unfounded. It would have been entitled to a hearing.

The other individual case that I want to cite arose in the United States. Mr Matthew Shepard, a homosexual man from Laramie, Wyoming, was discovered bound and spread-eagled against a fence, where he had been beaten to death. Had Mr Shepard succeeded in escaping, and had he turned up, let us say, in this country claiming asylum because he had a well-founded fear of persecution, I should have said that the fear was manifestly well founded. However safe a country the United States may be, he had a genuine claim to asylum. Such cases may arise anywhere.

At Question Time, the noble and learned Lord, Lord Falconer, drew attention to the racist chants in the match that took place last week between England and Slovakia. I thought that Mr Emile Heskey showed great dignity in his complaints that what he called "monkey chants" were being used even by the stretcher-bearers.

I have never understood why the Home Office is so indifferent to complaints about the treatment of the Roma. Its attitude is very different from that of the Foreign Office. I remember, during the case of the Roma who arrived at Dover in 1998, my noble friend Lady Williams of Crosby putting a Question to the Foreign Office rather than to the Home Office. The Answer that she received was very different indeed from the Answers that she had received from the Home Office. In matters of foreign affairs there is a rebuttable presumption that the Foreign Office knows rather more than the Home Office.

An hour ago, I received a report entitled Unwanted Journey, published in 1999 by the Refugee Council. I opened it at random and found this statement:

"The ERRC [European Roma Rights Centre] have recorded a depressing litany of reported police harassment and violence against Roma in Slovakia. Such harassment has included the use of electric cattle-prods, knives and machine-guns by police during raids and interrogations. In Jarovnice osoba, police were even reported to have tied up a one year-old Romany girl, hung her up by the hair and beaten her on the feet. The Mayor of Jarovnice had been seen identifying Romany houses with police prior to the raid".

The report contains a great deal more to that effect, about which my noble friend Lord Avebury will say more.

One of the report's findings, set out in the executive summary, is as follows:

" . . . the UK Government's policy in regard to Romany asylum seekers was racist and discriminatory in outcome if not intent"— that distinction is an important one—

"and is therefore in breach of a number of international commitments such as the UN International Covenant on Civil and Political Rights, the European Convention on Human Rights and specific recommendations of the Council of Europe's Commission Against Racism and Intolerance".

The noble Lord, Lord Filkin, may recall my tabling a Question for Written Answer regarding what sum the Government had set aside for legal action resulting from the Bill. His answer was none. He may live to regret that reply.

Photo of Lord Monson Lord Monson Crossbench

Before the noble Earl sits down, will he agree that the young man whose case he described who, unhappily, was beaten to death in Wyoming, could have easily found sanctuary in San Francisco or almost anywhere on the west coast, or on the east coast of the United States? There would have been no need for him to seek refuge in this country.

Photo of Earl Russell Earl Russell Liberal Democrat

It is possible to be followed, and it is possible to move fairly rapidly from Wyoming to San Francisco. Had I been in his position, I might not have taken the risk. But in any case, he had every right to choose not to take it.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench

It was a pleasure to hear the words of the noble Lord, Lord McIntosh, coming out of the mouth of the noble Lord, Lord Kingsland. Those of us who remember the debates that took place in 1996 and later are surprised to see the shift in the Government's position. I hope that those words will come back to haunt them. This Government wisely decided to do away with the white list, saying that it was unsatisfactory. I refer to the White Paper published in 1998. Now, it has quietly reappeared in the disguise of these new government amendments.

I grant that there may well be no perceived risk of persecution in the new EU member states, and that will eventually become one of the principles of their membership. But the risk is still debatable. The noble and learned Lord still needs to give fuller justification for reintroducing the list. Given his remarks, this is a case of our old friend "fast track" telling us what to do. It is a device of those who are anxious to be seen to get things done quickly. But surely that is not sufficient argument when we are reminded by the UNHCR that such lists are, as the noble Lord, Lord Goodhart, said, at odds with the fundamental principle of asylum protection.

The noble and learned Lord accepts that there is always the possibility of a breach of the UN convention in individual cases. The noble Lord, Lord Goodhart, quoted from the latest UNHCR statement, which was strongly backed up by the Select Committee of this House. What concerns the UNHCR most is that the very presumption that applications from safe countries are invalid, without proper safeguards, could lead to erroneous decisions. Clearly this category of applicants will not be given the same opportunities as other asylum seekers to appeal against the decision, as they can hardly appeal from their country of residence.

I was glad to hear the noble and learned Lord answer the question that has not yet been put to him; namely, how do we know that other countries will not be added? I accept the safeguards that have been given, both in legislation and through the independent advisory group. However, there are questions that remain to be answered. I should prefer that the amendment was left out altogether.

Finally, I hope that the noble and learned Lord can comment on the concern raised by the ILPA on individual status determination; namely, that, contrary to what he said, the amendment undermines the fundamental principle that asylum seekers should have their status determined on an individual basis.

Photo of Lord Avebury Lord Avebury Liberal Democrat 7:45 pm, 17th October 2002

The Government claim that this is not a white list like the previous one of the Tories; indeed, that is what they say in the note that was distributed to Labour members—a copy of which somehow came into my hands yesterday evening. I am grateful to the noble and learned Lord for confirming that the Home Secretary genuinely meant what he said in the note; namely, that the amendment focuses on countries that are just about to join the EU and where there can be absolutely no doubt about their safety. That goes a great deal further than what the noble and learned Lord said in his opening remarks, when he conceded that even in a country that is to be placed on this list by means of the amendment there could be individual cases where an application for asylum might be justified.

The power is given to the Secretary of State in this clause to allow individual applicants to get through to the next stage of the process. Therefore, when we reach the Report stage of these particular proceedings, I shall table an amendment to the new clause embodying the words that the Secretary of State used in the note, which I am sure will meet with his approval.

Before I turn to the question of the Roma, I thought that the noble and learned Lord was being a little disingenuous in telling noble Lords that we are in step with Europe as regards the declaration on asylum seekers, especially when one considers that the proposal emanated from the Home Secretary. The latter was made clear in a letter of 10th October from Jonathan Sweet, the UK Permanent Representative in the European Union, in which he mentions the Home Secretary's intervention at an informal meeting of JHA Ministers in Copenhagen last month. That was how this declaration came to be made by the Council of Europe.

At lunchtime today I chaired a meeting with the intention of forming a parliamentary group on the Roma—an initiative that has been taken in another place by Paul Stinchcombe, MP. At the meeting we heard that the DfID has been helping NGOs in candidate countries to promote equality and to combat racial discrimination. I very much welcome that assistance. I believe that the remarks made by my noble friend about the Foreign Office also apply to the DfID. They are conscious of the discrimination and intolerance that Roma suffer in the candidate countries, and they are doing their best to help address the problem. However, is it not incongruous that we have two government departments—the Foreign Office and the DfID—which are helping to alleviate the effects of racism and intolerance, while a third government department, the Home Office, pretends that the problem does not exist?

I should start by saying that although the policy is declared to be one of treating all asylum applicants alike—indeed, the noble and learned Lord reiterated that when moving the amendment—it has to be in the minds of officials who consider asylum applicants who come from these eastern states that they are from a country that is extremely unlikely to generate any genuine asylum applicants, despite the fact that many people have gained asylum in the past. I refer noble Lords to the 28th report of the Select Committee on The European Union (Sub-Committee E), entitled Defining Refugee Status and Those in Need of International Protection, in which the head of the Refugee Council said:

"According to the United Nations High Commission for Refugees there were 7,232 Roma asylum seekers from accession states who were granted refugee status in the EU in the period 1990-99, not a small number, and in the UK itself ten Czech cases were granted refugee status and 20 Polish cases in 2000 alone".

We are not talking about a minute number of people, who could be dealt with in the procedure outlined by the noble and learned Lord; we are talking about a substantial number whom the Secretary of State must somehow identify as being at least eligible to go forward to the appeals stage. As the claim has already been refused by one of the Secretary of State's servants, he must be of the opinion that it is "unfounded", and there will hardly ever be any cases where an appeal is allowed.

If, as appears to be the case judging by the noble and learned Lord's speech, Ministers are prepared to acknowledge that there are some genuine cases—however small the percentage may be—can the noble and learned Lord explain how they will be identified? How will the Secretary of State make the decision not to certify? Without an appeal, at which all the evidence can be presented, the Secretary of State will have only the same information as the official who turned down the applicant. It is difficult to see how he could arrive at any other opinion without an oral hearing.

As we have heard, the Roma are an oppressed minority throughout the whole of eastern Europe. As the Minister is well aware, right up until the present day some of them are obtaining exceptional leave to remain or refugee status in this country. But the amendment will make it almost impossible for any Roma to succeed. The European Roma Rights Centre, which has already been mentioned, says that if Amendments Nos. 10, 11, and 12 are adopted an administrative framework could be laid for possible breaches of the UK's international law obligations. My noble friend put it much higher than that, and he is probably right. The centre was very restrained in its comments.

Last spring, the Committee on Legal Affairs of the Parliamentary Assembly of the Council of Europe produced a report in which it said:

"Today the Roma are still subjected to discrimination, marginalisation and segregation. Discrimination is widespread in every field of public and personal life, including access to public places, education, employment, health services and housing".

Let us take, for example, an individual country. I have in mind the European Union's progress reports on states that are moving towards accession. As noble Lords are aware, such reports are produced at about this time every year. The 2002 Regular Report on Slovakia's Progress Towards Accession, says that,

"the situation of the Roma minority has remained difficult".

In particular,

"the discriminatory attitudes of local communities towards the Roma make proper implementation of the projects [under discussion] very difficult, underpinning and perpetuating the segregation of the Roma minority in certain parts of the country".

The report continues to say that the Roma,

"run a particular risk of racially motivated violence".

They cannot look to the police for protection because they are ,

"at particular risk [of] degrading treatment by the police".

The European Roma Rights Committee reports a recent case of a Romani woman who was hospitalised in Poprad with brain injuries after she and two Romani men were attacked by skinheads. In July last year, the police in the village of Revuca handcuffed Mr Karol Sendrei to a radiator and beat him to death in front of his sons.

The latest report of the European Commission in relation to the Czech Republic states:

"Romas still suffer from widespread discrimination in education, employment and housing. There have been further cases of racially motivated violence against Romas. The fate of the much appreciated Roma advisers seem uncertain, as their administrative basis, the District Offices, will be abolished by the end of 2002. Roma unemployment remains very high. Widespread discriminatory hiring practices are still being reported".

It is not surprising that Roma asylum applicants from those countries have in many cases been successful.

A report published by the OSCE High Commissioner for National Minorities two years ago stated:

"Even against the backcloth of a decade blighted by extreme forms of racist intolerance, the phenomenon of prejudice against Roma is singular".

A paper published by the Jewish Institute of Policy Research stated:

"Grass roots prejudice, deriving from centuries of official outlawing, runs deep and often results in public hostility and discrimination, lynchings, house burnings and murder".

That is not a description of a country that should be on a safe list. The remarks made in those reports could be extended many times over—for example, with a speech by Mr. James Goldston, who heads a highly reputable think tank, sponsored by Mr. Soros, operating from Hungary. I will not bore the Committee with similar quotations at this time of night. I could give also many other examples of individual cases of persecution.

The Lord Chief Justice, in a lecture a couple of days ago, issued a timely warning about government policies colliding with the Human Rights Act 1998, which reduced the risk of the Government scoring an own goal—but it can do so only after the event. If Ministers insist on the proposals, under the pressures that the noble and learned Lord, Lord Woolf, described the courts have to act only as a long stop. If that happens, we shall have failed in our duty.

Photo of Lord Hylton Lord Hylton Crossbench

Government Amendment No. 12 uses the words,

"is entitled to reside", and the noble and learned Lord the Minister explained that that means nationals or residents. I am concerned that wording shall not apply to people who have just been in transit through a listed country. I am strongly opposed to the words "or temporarily", which appear in no fewer than three Conservative amendments to Amendment No. 12.

There is a considerable danger that port, immigration and nationality department officials may be strongly tempted to apply clearly unfounded labels to people who have simply been in transit through a named country but who originally came from yet a third country. Can the noble and learned Lord assure the Committee that if he gets his way with Amendment No. 12 and it eventually passes into law, the clearest possible instructions will be given to all officials that transit passengers are not to be included in the Act's provisions?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

I dealt with many of the points in advance, and at this time of the evening I do not want to weary the Committee by repeating myself. The noble Lord, Lord Goodhart, opposes the principle of adding the list of accession states as countries where the individual applicant would have his or her case considered at the outset. If the claim were rejected, there would in effect be a presumption that the claim was clearly unfounded unless the Secretary of State was satisfied that it was not. The noble Lord said that EU countries—not accession countries—were generally safe and probably better than list countries.

We accept that individual cases might lead to a human rights or asylum claim being granted—frequently because of the individual's circumstances—but that would be unusual. The norm would be in relation to these countries that asylum would not be granted—a human rights claim would not succeed. The way that the amendment is drafted allows for that by ensuring individual consideration of each case. Then there is the presumption to which I referred, but the Secretary of State will have the right to say, "This is one of those exceptional cases where there should not be a designation of the case as clearly unfounded".

Amendment No. 12 deals with the propositions advanced by the noble Lord and other Liberal Democrat Members—all of whom opposed the concept of a list of safe countries. They said that even if a country is, in general, safe, there can still be cases that will succeed. We accept that proposition, but that is how the amendment's provisions are drafted. They actually deal with the precise points made by Liberal Democrat Members.

The noble Lord, Lord Goodhart, said that many cases from the countries in question will clearly be unfounded. We accept too that the vast majority of cases will be unfounded and the proposed provisions are common sense recognition of that fact.

Photo of Earl Russell Earl Russell Liberal Democrat

Will applicants from the named countries receive equal consideration with those from other countries?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

They will receive individual consideration, just in the way that every other applicant will do. The effect of the list is that if the claim is rejected—and it might not be and succeed—it will be certified as clearly unfounded, unless the Secretary of State considers that it is not clearly unfounded. Then there is the opportunity to go through the appeal procedure out of country.

As to Amendment No. 9A, the noble Lord, Lord Goodhart, suggests that where there is an ECHR claim, it cannot be certified. That would completely get around the intention. The noble Lord would be the first to accept that many asylum claims will also give rise to ECHR claims.

I am gratified to see the noble Lord nodding. The amendment would get around it by a side wind.

On Amendment No. 12B, the noble Lord says that it would be too risky to allow additions to the list. I went through the safeguards, affirmative procedure, independent advice and that which must satisfy the Secretary of State. We contend that that provides an adequate safeguard. The noble Lord argued, in reference to Amendment No. 12C, that the Secretary of State should not be entitled to certify that there is no serious risk in respect of a part of any state. I referred to that earlier, giving the example of Kosovo. There will be cases where one can identify that a part of a state is safe. In considering that, the Secretary of State must bear in mind the risk, which the noble Lord mentioned, of danger spreading from less safe areas to the part that he has certified. He should have that in his armoury.

The noble Lord cited the views of the United Nations High Commission for Refugees, which wrote to all noble Lords on the matter. Paragraph 11 of the document stated:

"UNHCR accepts that a safe country of origin list may be a useful tool for identifying applications that may be placed in the accelerated procedure. There are, however, some risks in the use of such procedures, not least the risk that an overly strict presumption that applications from safe countries are not valid could result in erroneous decisions to deny refugee claims. In order to avoid such risks the use of safe country lists should be accompanied by appropriate procedural guarantees".

I interpret that as saying that one can have safe country of origin lists but that there should be appropriate safeguards. We have a safe country of origin list—not one of third-party safe countries—with appropriate safeguards. The safeguards are that each case is considered on its merits, a second pair of eyes looks at it, and it is presumed to be clearly unfounded unless the Secretary of State considers that it is not. With the greatest respect, the UNHCR approach reflects ours.

He then referred to the European Union Select Committee Sub-Committee E. I have not read the details of that, so I may be taking the point out of context, but he referred to it as saying that some guidelines must apply. He accepts the principle that we must approach the matter to some extent with the benefit of guidelines. Safe country lists of origin such as those that we are dealing with, which involve individual consideration, do that.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 8:00 pm, 17th October 2002

I am grateful to the noble and learned Lord. The committee made clear its belief that safe country lists were not a satisfactory approach.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

If that is what it said, I stand corrected. I have not read the report so I cannot contest that. We take the view that it is a useful tool that reflects common sense. There was discussion about "some risk", and I dealt with that earlier. It reflects our debate on the principle that one can never give a 100 per cent guarantee in respect of every single country. One is talking about cases where there is a serious risk; that is to say, where there is a reasonable possibility rather than only a speculative one. I have dealt with all the points raised by the noble Lord, Lord Goodhart.

The noble Lord, Lord Kingsland, supported the amendment. I dealt with "entitled to reside" at some length. His probing amendment was vigorously opposed by the noble Lord, Lord Hylton, who argued that the last thing one wants under this provision is to catch people who either happen to be in transit or are simply temporary visitors to the states on the list. We agree strongly that those in transit are not generally entitled to reside in a transit country, and we do not intend to apply the provision in that way. I cannot give the noble Lord the assurance that he seeks because I do not know what Parliament would do. We would have to determine our response in the light of what Parliament did. I make it absolutely clear that the Government do not support remotely the idea of temporary residence.

The noble Lord, Lord Kingsland, treated us to an exhilarating summary of the Ahmadi case, which is not very helpful in determining the right approach. We submit that the right approach is to look for someone who is ordinarily resident in these countries. That would normally mean a national, but some people will be ordinarily resident full time without being nationals, for the reasons that I described. We are not aiming to apply the provision to temporary residents. Equally, to use the word "permanent" gives rise to numerous legal problems and does not assist the resolution of a common-sense test. We are not necessarily far apart in our objectives. The real issue is how to draft it most effectively in order to achieve it.

The noble Lord then referred to the question of adding to the list, and to the words "in general". We were all pleased to be treated to the words of my noble friend Lord McIntosh of Haringey, who I am glad to see in his place. I am sorry that he did not hear his words quoted. The words "in general" reflect the approach that we have just been discussing. It will never be possible to give a 100 per cent guarantee in respect of every case. That is why the words "in general" are used. Although I am sure that it was not intended, it reflects the approach by the noble Lord, Lord Goodhart, who stated that EU countries, not the accession states, are "generally safe countries". That common-sense approach reflects the one that we have been taking.

The noble Lord, Lord Kingsland, also rightly said that any country that was added could be removed, but any country on the list that is added by this amendment to the primary legislation cannot be removed. The reason for the distinction is that these countries are very far down the road towards joining the European Union. It would be wrong to provide for their possible removal, thereby giving rise to the possibility of a legal challenge against the Secretary of State on grounds that he has not exercised his powers. We do what noble Lords said; we put the countries listed on the face of the Bill in a different category to those that would be added subsequently by order.

The noble Earl, Lord Russell, agreed with the noble Lord, Lord Goodhart, as one would expect him to do. Also, as one would not expect him to do, he agreed with the noble Lord, Lord Kingsland, on the words, "in general". He then made the same point that we discussed earlier. He used examples to indicate that even "safe countries" may not be safe. I have accepted that individual cases may succeed even from the countries on the list. However, that would not be the norm and, just as the UNHCR document recognises, our approach is a sensible way to deal with asylum claims. I do not think that I need to deal with the individual examples that the noble Earl gave.

The noble Earl, Lord Sandwich, said that I must still justify why we are taking a list approach. It is a sensible way of dealing with applications from countries where the vast majority of claims do not succeed. It would be wrong for us not to recognise that in how we deal with them. That does not mean that the system is unable to identify well-founded claims and allow those applications to succeed. The noble Earl referred to later added countries, which I have dealt with.

The noble Earl and the noble Lord, Lord Avebury, referred to the position of Roma. The case of Hrbac, which is about a Roma application for asylum, was heard on 23rd April 2002 by a legally qualified immigration appeal tribunal. After a full independent consideration of the matter, chaired by the president of the Immigration Appeal Tribunal, the case was determined on 7th June, 2002. It was stated that:

"The position in the Czech Republic is such that it will in our view be impossible for a Roma or anyone who has suffered as a result of a discrimination against Roma to establish a well founded fear of persecution".

The name of that case is Hrbac. That is the way the system deals with it.

Photo of Lord Avebury Lord Avebury Liberal Democrat

Is the noble and learned Lord saying that an individual adjudicator, however distinguished, knows more about the phenomenon than, say the European Roma Rights Centre, or the High Commissioner for National Minorities in the OSCE, or the rapporteur on racial intolerance at the United Nations High Commission and many other authorities which could be quoted?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

I am saying that the debate is about the extent to which the system that includes the Immigration Appeal Tribunal should be open on the basis of an in-country or an out-of-country appeal. The system to which the argument relates for allowing in-country appeals has given that comment. It is an independent judicial figure. I make no claim about who knows more about it than any other group. I simply draw attention to how the system has dealt with the claims so far.

Unless there are any other points with which, after reading Hansard I think I should deal, I urge Members of the Committee to support the government amendment and reject the amendment to Amendment No. 9.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

The noble and learned Lord cited a passage from the comments of the UNHCR. Immediately following that passage, there is another paragraph which states:

"Clearly, a safe country of origin list and a presumption of non-validity places a heavier burden of proof on an asylum applicant. Asylum applicants must therefore be given a real opportunity to rebut the presumption, recognising that a rebuttal will only be truly effective where an appeal is heard in the UK".

Does the Minister therefore agree that the UNHCR is saying that even if a safe list is justifiable for allocating cases to the accelerated procedure, it is not an appropriate motor to use for the purpose of deciding to return an applicant while an appeal is pending?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

Looking at Clause 12, I can see that to some extent that knocks a problem in the point I was making relating to the UNHCR document. However, it does not detract from the basic point I was making about the principle.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

I beg leave to withdraw Amendment No. 9A.

Amendment No. 9A, as an amendment to Amendment No. 9, by leave, withdrawn.

On Question, Amendment No. 9 agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 10 and 11:

Page 50, line 14, leave out "who is in the United Kingdom"

Page 50, leave out lines 16 and 17 and insert "the claim or claims mentioned in subsection (1) is or are clearly unfounded."

On Question, amendments agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 12:

Page 50, line 17, at end insert—

3 "(2A)

If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (2B) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.

(2B) Those States are—

(a) the Republic of Cyprus,

(b) the Czech Republic,

(c) the Republic of Estonia,

(d) the Republic of Hungary,

(e) the Republic of Latvia,

(f) the Republic of Lithuania,

(g) the Republic of Malta,

(h) the Republic of Poland,

(i) the Slovak Republic, and

(j) the Republic of Slovenia.

17 (2C)

The Secretary of State may by order add a State, or part of a State, to the list in subsection (2B) if satisfied that—

1920 (a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

2122 (b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention.

25 (2D)

The Secretary of State may by order remove from the list in subsection (2B) a State or part added under subsection (2C)."

[Amendments Nos. 12A to 12K, as amendments to Amendment No. 12, not moved.]

On Question, Amendment No. 12 agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 13:

Page 50, line 18, leave out "who is in the United Kingdom"

On Question, amendment agreed to.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I beg to move that the House do now resume. In doing so, I propose that the Committee stage begin not before 9.15 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.