ADJUDICATORS

HC Deb 05 November 2002 vol 392 cc207-22

Lords amendment: No. 127, in page 39, line 17, at end insert , and ( ) may appoint one or more adjudicators as Deputy Regional Adjudicator.

Beverley Hughes

I beg to move, that this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker

With this we may discuss Lords amendments Nos. 128 to 153, 154 and amendment (a), 155, 156, 157 and amendments (a) to (f), 158 to 178, 179 and amendments (a) and (b), 180 to 183, 184 and amendments (a) and (b), 185 to 187, 188 and amendments (a) to (d), 189 to 191, and 215 and amendments (a) to (c).

Beverley Hughes

The amendments in this group are for the most part minor and technical and I do not intend to speak to them, although I will be happy to answer any questions. I should, however, explain why the Government tabled amendments to non-suspensive appeals provisions in clauses 82 and 101 which were fully discussed in the other place but which this House has yet to be able to consider. Without delaying the House, I hope that I can set the provisions in the context of what the Government are trying to achieve through their overall approach to asylum and immigration, as outlined in February's White Paper.

The strategy is threefold, and it is important to remember the three elements. The first is to return asylum to its proper purpose: a route through which people who are fleeing persecution can readily and easily be identified and, once they have gained permission to stay, be integrated properly and helped to settle here. So returning asylum to its proper purpose is a very important part of the strategy. The second element is the need to do a lot better at integrating refugees, including opening a gateway—with the United Nations High Commissioner for Refugees—for people to come in directly from out of country. The third element, because we do welcome migrants generally, is the opening up of managed legitimate routes for economic migration.

Most Members will agree that we need to deal with the very large numbers who seek to remain here on the basis of asylum and human rights claims that are clearly unfounded, and whose motivation in coming has to do not with fleeing persecution but with other objectives—however understandable—that are outside the asylum system. The term "clearly unfounded" is not defined in legislation, but the courts have held that it constitutes a claim that is obviously without substance, or is bound to fail. An example would be those who come here for economic reasons, or those whose fears—even if true—would not amount to persecution, or to inhuman or degrading treatment. It is essential that clearly unfounded cases be identified and dealt with quickly. There can be no justification for allowing a person who has made a clearly unfounded claim to remain here to pursue a hopeless case.

We debated the arguments for introducing non-suspensive appeals at an earlier stage. The amendments to clauses 82 and 101 build on this provision by introducing a list of countries where a claim will be presumed to be clearly unfounded.

Simon Hughes

The Minister rightly points out that we had a general debate, and we shall come to the more specific view that the Government have taken in the Lords. Superficially, the argument is very appealing, but will she explain why the Government are proposing such a rigorous response in terms of their definition of manifestly unfounded cases? Throughout the 50 years for which we have been signed up to the refugee convention, people have regularly come from other democracies with cases that were found to be good ones. Most importantly, the Home Office's own statistics for this year show that about 40 per cent. of "manifestly unfounded" certificates are being overturned on appeal to the adjudicator. It seems that, when looked at more carefully, apparently manifestly unfounded cases are not unfounded. That would trouble anybody, and it is, I hope, a reason for proceeding much more carefully than the Government's proposals allow us to do.

Beverley Hughes

I understand the hon. Gentleman's concern, and it is a valid one, but he is not comparing like with like. Claims that have been dealt with will not go through the same system that we plan to use for the cases under discussion. I shall outline the system for the hon. Gentleman shortly, but I agree that we must ensure that the quality of the initial decision making, the care taken at that stage, and the building in of additional scrutiny are sufficient to ensure that decisions in cases so certified are robust and defendable. Those are very important points, and in view of the outcome of the cases that the hon. Gentleman outlines, we are building that degree of rigour into the initial decision-making system. I shall explain to the hon. Gentleman exactly what the stages are shortly.

This country has a long tradition of considering every asylum claim individually to see whether a person would face persecution in his or her own country, and that will continue. In tabling these amendments, we do not rule out the possibility that a person from a generally safe country could be a refugee. However, the fact is that the vast majority are not refugees. This is true of the 10 countries that are the first in the queue to join the European Union. These countries—they are listed in the amendments—are all democracies. They have functioning criminal justice systems, respect for human rights and a commitment to dealing with elements in their society who target minority groups. For these countries, more than 90 per cent. of those who appealed against a refusal to grant asylum had their appeals dismissed. As Members will know, at a recent meeting in Luxembourg the Justice and Home Affairs Council adopted a declaration that member states should start from the presumption that any asylum application from a national of one of the 10 states is manifestly unfounded. We are therefore in step with our EU partners in adopting this measure. A significant number of asylum applications from these countries contributes to the total number that we are dealing with.

Vera Baird (Redcar)

Do not the Minister's own figures make it perfectly clear that 10 per cent. of people who applied from white list countries did have a valid claim? Under this system, how will they be protected?

Beverley Hughes

People will enter into the non-suspensive appeal process, but that will not remove the possibility of their seeking judicial scrutiny of their case by applying for judicial review. If an application were made, such a person would not be removed until the application was determined. If the application were approved, they would not be removed pending the determination of the judicial review itself.

We must recognise that the fact that tens of thousands of people are using the asylum system has a serious impact on our ability to identify and integrate refugees. That introduces a degree of chaos into the system, and we really need to rationalise it. If we do nothing about these problems now, they will simply get worse as our EU partners take a firm stance, and the United Kingdom perhaps becomes a more attractive destination.

8 pm

The hon. Member for Southwark, North and Bermondsey mentioned safeguards. Those affected by the measure will have safeguards to ensure that their claims are properly considered. They will have access to legal advice while their case is being considered. Their application will be considered by a specially trained officer. The decision to refuse—if that is the decision—will be checked by a senior officer. And random quality testing of decisions will be carried out by a legally qualified person. However, the measure will make it clear that very few applications from those countries will have a valid claim.

Circumstances change, and there may come a time when other countries achieve the settled conditions that are enjoyed by those on the list of 10. In that case, if large numbers from one of those countries continue to seek asylum, it may be appropriate to add that country to the list. Clause 82 has constraints to ensure that other countries could only be added appropriately.

Mrs. Ellman

What powers will a Minister have to add other countries to the list and what scrutiny of that decision would take place?

Beverley Hughes

My hon. Friend will be aware of other provisions in the Bill for the establishment of an advisory group on in-country conditions. The Home Secretary has already made it clear that when he considers the range of evidence on the circumstances in particular countries that might justify inclusion in the list he will take the views of that group into account before reaching a decision. That decision would be subject to the affirmative resolution procedure. Therefore, no country could be added without Parliament having debated and agreed its inclusion. Additions cannot be made unless the Home Secretary is satisfied that there is no serious risk of persecution in that state, or part of a state, and that removal to the country of the persons entitled to reside there would not be in contravention of the European convention on human rights. The opposite also applies: if circumstances change for the worse, the country can be removed from the list.

Simon Hughes

The Joint Committee on Human Rights, on which I sit with the hon. and learned Member for Redcar (Vera Baird) and other colleagues, pointed out that the documentation considered by the European Commission, in its assessment of applicant countries, contained good reasons for concern about human rights matters in all those countries. For example, the Minister will remember that for Estonia the Joint Committee listed the following causes for concern: position of stateless persons, who constitute about 12.5% of the population; use of force by police; treatment, including arbitrary detention, of disabled and mentally ill persons". For the Czech Republic, the causes for concern include: treatment of people in police custody; legislative discrimination against religious groups, especially minority religious groups: and widespread discrimination against Roma in education, housing and employment, despite attempts to improve the position". Those are just two examples. Although those countries are applicant countries, they will not satisfy human rights tests for all their citizens or residents. I share the Joint Committee's concern that we are making presumptions that are unacceptable on human rights grounds, because they will be rebuttable in theory but not in practice.

Beverley Hughes

The hon. Gentleman has provided the answer to his own point. The presumption is for the generality of people in a country, but it is rebuttable. The terms of the measure acknowledge the possibility that any particular individual may be able to establish, on grounds of his or her experience, that the general presumption does not apply in that case. As I have explained—and I hope the hon. Gentleman will accept my assurances on this point—we want to certify only clearly unfounded claims. We do not want to certify individuals whose cases reach the European convention threshold. That is why we are taking great care in providing how certification decisions should be made, so that that eventuality is covered.

Fiona Mactaggart

If the Minister could give the House an assurance that she does not intend to certify the cases of Roma from the accession countries, many of us would have our fears allayed. I have cases from Women Against Rape and the Refugee Legal Centre involving Roma from many accession countries who have had their cases certified, but under the present arrangements, that certification has been overthrown and they have been granted asylum. It is the situation of the Roma in the accession countries that is causing the greatest concern to many of us.

Beverley Hughes

I have different experiences and I could cite different examples. In this country in the past few months, not a single application from a Czech Roma person has been successful. I do not claim that the Roma's circumstances are not difficult in some countries, but only in very limited circumstances will their claims reach the threshold of persecution or torture and inhuman treatment under the convention, or prove that the state in question cannot or will not protect them.

The hon. Member for Southwark, North and Bermondsey will wish to speak on the amendments he has tabled, and I will be happy to give specific responses to any questions that he has. However, I shall make some general points now rather than address each amendment individually. There are two groups of amendments, one relating to clause 82 and one to clause 101, which seek to achieve the same objective. They try to remove the human rights claim from the clauses. As was acknowledged by some Liberal Democrats in the other place, the amendments are wrecking amendments, because the clauses could not work if the potential to make a human rights claim is taken out. That would undermine the purpose of both clauses, because anyone making a clearly unfounded asylum claim could get an in-country appeal right simply by lodging an equally unfounded human rights claim. Therefore, we will not accept those amendments.

Mr. Malins

I shall not detain the House for too long, but I wish to pose one question to the House. What is a safe country? Hon. Members will have been on holiday to countries that were perfectly safe for them but which might not have been so for some of their nationals. Equally, I suspect that we will have been to countries where the reverse applies—where we might have been in some danger, but nationals were not.

The Government have to perform a difficult balancing act. They want to speed up procedures and at the same time they want to be fair. I understand that. I have a high regard for the Minister, so I shall tell the House that the Opposition have no difficulty with the Government's proposals on these matters. However, we do have a few queries.

We discussed non-suspensive appeals a little in Committee, with the Minister's predecessor. Matters have progressed since then. The Bill reached Report stage in the House of Lords in a slightly different state. The so-called "white list" is set out in Lords amendment No. 188, and the prospect of the Secretary of State adding a state by order is very much in line with Conservative party thinking.

As always, however, the devil is in the detail. No hon. Member would want to send a person abroad to conduct an appeal if that meant that that person was being sent to severe danger and possible death. No decent person could ever want that, but it also makes absolute sense to speed the procedure up, so that a person whose case is unfounded can be told that he or she will be sent back to conduct an appeal from a country that is safe. Do we have bilateral agreements with the countries set out in Lords amendment No. 188 that mean that, following certification, we are able to send people back to those countries in the certain knowledge that they will be received and able to conduct an appeal from there?

I may be wrong, but my understanding is that we have bilateral agreements with Norway and Iceland. Do we have such agreements with any of the other countries? I do not think so, but I should be grateful if the Minister could tell me a little more about that.

We do not have long tonight for discussion of the nuts and bolts of these matters. I always enjoy discussing nuts and bolts rather than theory, but I hope that the Minister will give me—either this evening or in writing—a step-by-step guide to how the proposals will work in practice. All hon. Members feel strongly that we must make sure that a person who is certified and sent back to one of the listed countries should not be grossly disadvantaged. Such a person must be able to conduct an appeal, without prejudice or unfairness. If that person is not scuppered in that way, he or she will have a chance of mounting a proper appeal. I therefore want to ask the Minister a series of questions regarding the mechanics of certification and how the appeal procedure will work.

I shall deal first with certification. The phrase if the Secretary of State is satisfied crops up all over the Bill, but the House knows that the Secretary of State does not examine all the cases. He cannot do so. He delegates, and so the person who must be satisfied is the determining officer. The initial decision maker will be a Home Office official, and that is the person who must be satisfied in these matters.

The Minister has mentioned the special training and expertise that initial decision makers must have if they are to deal with these difficult matters. I asked a series of parliamentary questions earlier this year about initial decision makers. In January 2001, there were 761 initial decision makers in asylum cases in post, but the number had fallen in January this year to 697. I am sure that the number will have increased by now, and that the Minister will be preparing for the future by seeking to recruit more initial decision makers.

8.15 pm In Committee, and subsequently, many hon. Members have told the Minister and the Home Secretary that it is vital to make high-quality initial decisions in asylum cases.

Mr. Mullin

indicated assent.

Mr. Malins

The hon. Gentleman and I agree on that, as do all hon. Members. It is very important to get matters right at the beginning, to avoid long-term problems. Getting matters right first time is very much in the interests of the Government and the country, and it is certainly in the interests of the asylum seeker.

In July, I asked the Minister what plans she had to increase and improve the training of initial decision makers in asylum cases. I was disappointed to be told that, at that stage, there were no such plans. I think that the position may have changed. Indeed, an answer that the Minister gave me later in the year suggested that there were moves afoot to "maintain and improve" the quality of initial decision on asylum applications. I am pleased about that. All the non-governmental organisations involved in this matter place great emphasis on getting the decision right at the beginning. Nowhere is that more important than in cases where the stakes are high, as they are for people who are to be removed from this country so that their appeals can be heard from abroad.

I want to ask a few questions about how the appeals will work in practice. In this country, if my right hon. Friend the Member for West Dorset (Mr. Letwin) or I were convicted of an offence in the court, we would go to our appeals in person. That has always been the tradition. We understand and agree with what the Government are doing, but the Minister must accept that the proposals represent a departure from the norm. It is not what we in this country have got used to in the legal or asylum systems over many years.

I want to put myself in the position of a person who arrives in this country and makes an asylum application. Let us say that I am from the Czech Republic, which is on the white list. I assume that an initial decision about my application will be made. How does that work? If the Minister cannot answer that tonight, I should be grateful if she could write me a note. After the initial refusal, I suspect that there will be a removal. Let us assume that I do not make any applications but that I am removed in any case. How quickly will that removal take place? Will I be at liberty in the period between the initial decision that goes against me and my removal, or will I be detained?

After the initial decision has gone against me, will I have the opportunity to take competent legal advice, either straight away or in the intervening period, however long that may be, about the prospects for my appeal and how it should be undertaken? Will I have to lodge all my appeal papers before I go? I will get a chance, I am sure, to see my lawyer before I go, but what about after I am removed, when I am in the Czech Republic? Are there any circumstances—I think that the Minister will confirm that there are not—in which the adjudicator can say, "I demand to see this person personally"? I do not think that that can happen, but we need it spelled out. What about my legal help and advice after I have gone, if I have gone?

In October, I asked the Minister about the circumstances in which asylum applicants from abroad who had been removed would be entitled to advice from lawyers, how they would get it, whether the lawyers over here would be publicly funded to give advice to people abroad and whether they would be publicly funded to travel abroad to take instruction, talk to witnesses or talk to the appellant himself or herself. That is a narrow question, but it is important for those who give legal advice and help to know, when someone is certified and removed, what the scope is for providing, in a sense, a full legal service. I was told in a written answer by the Parliamentary Secretary, Lord Chancellor's Department, the hon. Member for Doncaster, Central (Ms Winterton), that the Legal Services Commission would authorise expenditure only in exceptional circumstances if an interview was absolutely necessary and there was no reasonable alternative such as communication by telephone, post, fax or video link. Sponsors, relatives or friends of a client based in the UK could also be used as a channel for instructions. Lawyers abroad could also be used as agents and paid out of public funds. Is the Minister saying that I could go back to the Czech Republic and consult a local lawyer in Prague who would then be paid by the Legal Services Commission? That is what seems to be suggested. In that case, what about the Legal Services Commission quality mark and standards?

These are not flippant questions but real ones. It will not be very long before, under these procedures, people become certified. When that happens, they will have to go abroad and make their appeal from there. It would be helpful for the House to have answers to some of these purely practical questions. If the Minister could write to me, a copy of the letter could be put in the Library. These questions are raised quite frequently with me by NGOs such as the Immigration Advisory Service, which I had the honour to found some 10 years ago. They could matter very much to people who might be affected by the Bill. I notice the hon. Member for Sunderland, South (Mr. Mullin) nodding in agreement. I hope that means that I have not overstepped my mark in speaking from the Conservative Benches. I am sure that I have not. I pose these questions to the Minister because Members on both sides of the House are approaching the issue with humanity, fairness and decency.

In conclusion, we have no difficulty with what is proposed. We support the white list; we support the white list plus. I pay tribute to Lord Kingsland and to Baroness Anelay for the work that they and others have done in the other place. They found support and sympathy for many of their arguments from members all around their lordships' House. I hope that the Minister will accept our support for what she is doing. However, I hope that she will be prepared to say loud and clear that the Government will do everything as we would want it done to ensure that the system, which may be fast, is also patently and clearly fair.

Fiona Mactaggart

I have two issues of concern relating to certification connected with white-list countries and people who may lose their rights of appeal under clauses 82 and 84.

I raised the matter of certification in June and was reassured to some extent by the response of my right hon. Friend the Home Secretary, who said that he wanted to ensure that the possibility of review was readily available. He continued: We are keen to establish a pattern that will be checked by the judiciary on certification to provide us with a base on which to make common-sense decisions." —[Official Report, 11 June 2002; Vol. 386, c. 802.] I referred to Roma in an earlier intervention. I have had a number of cases presented to me by the Refugee Legal Centre and by Women Against Rape. I do not know the dates of all these cases, but most of them are of recent origin because in all cases—and the episodes complained about happened in countries including Poland, Latvia, the Czech Republic and Slovakia—there have been certificated appeals which, under the present law, can be appealed against. The applicants have appealed and have been granted asylum. In many cases, applicants have been subjected to rape and their assailants have colluded with state forces, including the police. That seems to be exactly the sort of pattern to which the Home Secretary referred. There is an issue about the way in which the power exists to mediate the exercise of the certification process. Were the Home Office to do that in the case of the Roma, I believe that much concern would be mitigated.

I am further concerned by the way in which clause 84(2)(c) is interpreted. Can the Minister give an assurance about its interpretation? Under this provision, if someone had had a right of appeal which they had not exercised, they could lose that right of appeal. At present, there is a way of testing that earlier before an adjudicator. Under this provision, someone can lose their right of appeal if they would have been permitted or required to raise on an appeal against another immigration decision in respect of which he chose not to exercise a right of appeal. That would apply to someone who made an application, then made a fresh application and did not appeal against the refusal of their earlier application.

I understand why the Home Office has introduced this clause. Some people exercise their right of appeal in a flawed way and use that to get more rights of appeal. I am fundamentally in favour of only one right of appeal. The present arrangement whereby people can spin out many appeals is ineffective; it creates cynicism about the immigration and asylum appeals process and is wide open to abuse.

In some cases, however, people were not aware of their original right to appeal and I am concerned about them; for example, they might have moved—we all know how asylum seekers are pushed around the country—or they might have had a bad adviser. Some advisers are corrupt and cheating.

Jeremy Corbyn

My hon. Friend makes an important point. Many of our constituents receive incompetent legal advice at the start of the process, so the damage has been done, however good their legal advice at the appeal stage. Justified cases are lost at appeal owing to the incompetence of earlier lawyers. People need the right of access to good-quality advice at the very beginning, but increasingly that does not happen.

Fiona Mactaggart

My hon. Friend makes a slightly different point, but he is right: we need to ensure that people have better access to advice. I hope that they can receive that advice in accommodation centres not only because they need it but because it helps the decision-making system to work well.

8.30 pm

Simon Hughes

The hon. Lady is an expert in this matter. I am sympathetic to her argument about a single appeal, but does she agree that an appeal cannot be exercised fully and properly if, in many cases, it is made from abroad? The appeal will have to take place in this country if we are to ensure that it is properly carried out, wherever it comes in the process.

Fiona Mactaggart

I agree, especially as regards people who, if they lost their appeal, could be removed to countries that are not even on the white list and where some groups are subject to the most grotesque violence. That is why I am concerned about these provisions.

At lunchtime today, I received a letter from a colleague of the Minister in response to questions that I had raised. The letter stated: Many of the people whose situations you describe should be making late appeals. The Home Office is bound to pass such appeals on to the adjudicator for an independent review of the timeliness issue and may in appropriate cases treat the appeal as in-time so that it proceeds directly. I shall be overwhelmingly happy if the Minister assures me that the interpretation of paragraph (c) will always be that if people chose not to exercise their substantive right of appeal earlier, the Home Office will allow an adjudicator to determine whether the appeal should treated as out of time. People who had well founded fears but who did not exercise their appeal at an early stage could thus have their appeal considered.

Mr. Gerrard

My hon. Friend makes an important point. The critical point seems to be the immigration officer's leeway in deciding whether to certify the case. Perhaps some guidance could be produced, so that if there were failings on the part of the legal adviser that had nothing to do with the applicant, they could be taken into account when deciding whether to certify.

Fiona Mactaggart

In effect, that is what I am suggesting. The clause provides that one of the grounds for certification is that the substance of the appeal could have been raised at an earlier stage had the applicant chosen to do so. The decision about that issue of choice does not have to be dealt with in the Bill; in practice, it can be covered by instructions to immigration officers. However, the point is substantial. We need to ensure that the interpretation of the Bill is such that cases that ought to have a right of appeal can have that right. If the Minister can give us that assurance, the serious injustices to which the measure might give rise will not occur.

Simon Hughes

This debate is important. As the Minister and the Conservative spokesman observed, we debated the principle of a non-suspensive appeal that would have to take place outside the United Kingdom during earlier stages of the Bill, but there was never a white list proposal.

Like other colleagues, I remember debates on this issue when the Conservatives were in power and the Labour party was in opposition. The Labour party was very critical of the principle of a white list—the idea that one listed countries in advance with presumptions—and opposed it, as we do. I have not changed my view with the change of Government, and I know that some colleagues in the Labour party have not done so either.

I am not convinced that the argument that the Government have given their Back Benchers is terribly persuasive. A parliamentary Labour party briefing on the amendments came into my hands yesterday, as these things sometimes do. It poses this rhetorical question: Is this a White List just like the Tories'? It then gives an answer in an attempt to persuade Labour Members: The situation is quite different. We are living in a very different world now, where we are seeing large flows of asylum seekers from countries which are just about to join the EU and where there can be absolutely no doubt about their safety. There is some truth in that, in the sense that there are new applicant countries to the European Union, but there are not many more asylum seekers. The number of those seeking asylum in western Europe has dropped by half over the past 10 years. So the argument for having a white list now, which was opposed by the Labour party only five years ago, is not borne out by the facts.

The Minister was right to say that some of the amendments tabled by my right hon. and hon. Friends and me go to the heart of the principle of whether appeals should occur outside the country, and to the heart of the principle of a white list. That is because we are opposed to appeals abroad and we are opposed to a white list. We have not changed that view, so we shall try to amend the Bill to create the legislation that we wish it were.

For the record, I should like to list the Liberal Democrat amendments, as the Minister referred to the amendments generally, although that is not a criticism. We have tabled amendment (a) to Lords amendment No. 154, amendments (a) to (f) to Lords amendment No. 157, amendments (a) and (b) to Lords amendment No. 179, amendments (a) and (b) to Lords amendment No. 184, amendments (a) to (d) to Lords amendment No. 188 and amendments (a) to (c) to Lords amendment No. 215. Some of them are parallel, in that they apply similarly to similar clauses. I shall not go through each in detail.

Mr. Letwin

Hallelujah!

Simon Hughes

I agree with that response, and I am sure others do too. The Minister is right that the amendments would omit in part from the purview of the Bill applications for human rights asylum as opposed to other bases of claim. As an alternative, they would not limit the category to serious-only cases, and would prevent the Government from adding other countries—one of the criticisms, this—to the list by secondary legislation.

Of course it is a good idea to have an advisory panel on country information, but it is less of a good idea if that panel does not have an obligation to give advice. There is the hint of a good thing without delivery of that good thing, as there is not as yet any obligation in the Bill to consult. That is also a matter that has been raised by the Joint Committee on Human Rights and others.

Jeremy Corbyn

One problem is that when a person is deported to, say, an EU applicant country and wishes to pursue an appeal, there is no individual monitoring of that person's circumstances—the degree of harassment that they might face from local official or unofficial forces, which object to the fact that the person has brought "shame" on their country by applying for asylum elsewhere. I believe that such people suffer considerable harassment as a result.

Simon Hughes

The hon. Gentleman is right. One question that I want to ask the Minister—I hope that she will have a chance to reply in her winding-up speech—is: what tracking process will there be of people who return to the country from which they came? I do not think that many would find the following judgment flawed. The chance of someone being able fairly, without influence or disadvantage, to pursue an appeal in this country after having been sent home to the Czech Republic—to take the example of the hon. Member for Slough (Fiona Mactaggart)—without the authorities in that country becoming aware of the people or person being put at risk is very small. The fact is that most appeals will not happen once the individuals involved have gone abroad. For the Government, the blunt truth is that those appeals are not intended to happen—it is intended that a whole series of appeals will be lost. That is why I put my question to the hon. Member for Slough. It seems to me that we could come to a perfectly reasonable view on a single stage of appeal, but only if an appeal takes place—evidence shows how flawed initial decisions often are—and takes place in this country.

I have asked the Minister whether the monitor will be used to track people. My second question relating to the monitor is: what will the monitor monitor? The decisions are not adjudicator's decisions, which result in a decision: nor are they tribunal decisions, which result in a report. What will the monitor have? We are told that they will have a certificate, but will they have any more than that? Will they have the notes of the hearing? Will they independently take notes of the hearing? How can someone monitor whether the job has been done if they have no access to material on which to judge the initial decision? Proper scrutiny of a judicial or quasi-judicial process is not possible unless there is material to scrutinise.

Home Office Minister Lord Filkin, when asked in the other place whether the white list would be the subject of advice from the advisory panel—whether the panel was to be asked about the countries on the list, the countries to add and those to remove—said that he did not think so. What is the point in having an advisory panel on countries if it is not to be asked for its advice? The purpose of having an independent documentation centre—for which the right hon. Member for West Dorset (Mr. Letwin) and others have argued—and an advisory panel is to have independent advice on, say, the state of play in the Czech Republic as it affects the Roma community.

Vera Baird

Is it not equally important to put into the legislation a positive obligation on the Secretary of State to have regard to that advice? Currently, it appears to me that the panel is merely one of a number of sources of advice to which he might have resort when refining his decisions, but there needs to be, first, a duty to advise and, secondly, a duty to have regard to the advice.

Simon Hughes

I agree absolutely. The Joint Committee on Human Rights, of which the hon. and learned Lady is a member, was highly critical of the Government's proposal. That Committee does an excellent job of examining new Bills, and it produced a second report on the amendments. Its members can speak for themselves, but the Committee was highly critical of the process envisaged and made it absolutely clear that it goes against the advice given by the United Nations High Commissioner for Refugees, which says that a state-by-state presumption is invalid and cannot be justified. The Minister in the other place did not give the undertaking to which the hon. and learned Lady refers. Colleagues who advise us—the Immigration Advisory Service is based in my constituency—have specifically asked whether the advisory panel will be asked to advise, but we have received no such assurance.

The hon. Member for Slough gave lots of good examples—most drawn from the Refugee Legal Centre, which is an organisation with an excellent reputation that used to be based in my constituency but has now crossed the river—of people from each of the applicant countries who have suffered persecution and fled, and whose cases have been upheld. All the cases arose in recent years. Let me add one further case, which is relevant to more than just the issue of the white list of applicant countries.

My noble Friend Lord Avebury, who is a diligent champion on these matters, took up the case of Jaqueline Kunan, an asylum seeker from Ivory Coast. I believe that he described her circumstances when the Lords debated the Bill last week. I gather that her case was reported on "Woman's Hour" yesterday morning. She was in Harmondsworth from June, then detained in Dungavel, and then returned to Harmondsworth on 21 October. She has had three solicitors, one of whom, it appears, did not do a particularly good job. She has with her a baby who was born a year and a half ago, and I understand that she is again pregnant.

Jaqueline Kunan's claim is one that would normally be regarded as fundamentally unfounded, on the basis that the judgment given by the authorities was that she had not made out her case for asylum from Ivory Coast—a country where a military coup and takeover have occurred.

8.45 pm

In a couple of hours this week, my colleague Lord Avebury was able to substantiate independently the facts that the woman alleged, and in a way that made her case clear. With the assistance of the staff in my constituency office or other people, I have often asked for the facts to be checked, and we have been able to disprove the circumstances asserted against us. I do not yet have the confidence that the system will come to the rescue often enough of people in particularly vulnerable positions. The Minister accepted my point that 40 per cent. of the cases that were held to be manifestly unfounded had been overturned on appeal. When the Home Office did a spot check, it concluded that 85 per cent. of the decisions were satisfactory. By definition, 15 per cent. are not satisfactory, so 15 per cent. of—in that case—250 people, who may have had a terrible time, would be sent home, possibly to face persecution. We have a duty to deal with them.

I hope that hon. Members will be sympathetic to amendment (a) to Lords amendment No. 154, if there is an opportunity for us to move it before the guillotine falls, or if not, that they will join us in voting against Lords amendment No. 157. That is a dangerous road to go down. The United Nations High Commission for Refugees has advised against it. It is a fair interpretation of the view of our Joint Committee on Human Rights to say that the Committee was very worried about it. We should not sign off the principle of people being sent abroad to appeal, or presume that certain countries will be satisfactory. Disproving that will often be far too difficult to achieve.

Vera Baird

I have little to add. I rely heavily on what was said by my hon. Friend the Member for Slough (Fiona Mactaggart), who made most of the points that I had in mind. May I take the matter outside the white list arena for a short time? Suspended appeals were discussed in an earlier debate, but let us not forget that there will henceforward be a certificate from the Secretary of State that somebody's application, either on an asylum basis or on a human rights basis, is clearly unfounded. Such people will have no right to remain while making any kind of appeal, even if they do not come from an applicant country to the EU. There are all the hazards that my hon. Friend the Member for Slough set out in relation to people being returned to applicant countries in order for them to make their applications from there.

Ten or, as Opposition Members have said, 15 per cent. of people have cause for complaint and have succeeded on appeal, even from those countries. That is bad enough, but we will be sending people back to other countries on the basis that their claims are clearly unfounded. In addition, there will be no independent advisory service with any of the duties that would attach to such a service to tell the Home Secretary when a country is safe or not, and there will be no duty on him to have regard to any advisory service before making such decisions. The advisory service is an extra protection, but it comes into play only when the Home Secretary is considering whether to extend the white list.

In a sense, the white list people are somewhat better off. First, they have a 90 or 85 per cent. chance, because they are in a country that we regard as meriting application to the EU. Secondly, there will have been a screening process for that country through the independent advisory service, from which, I reiterate, it seems important to me that there should be a duty on the Home Secretary to accept advice, whereas people going outside the white list countries on the basis that their claims are clearly unfounded will have neither of those protections at all. They obviously will have no appeal in this country. They will have the prospect of judicial review, and I was pleased that my hon. Friend the Minister was able to reassure me that nobody who had a certificate judicially reviewed would be removed before the judicial review, whether allowed or not, had gone to a full hearing. I framed that question in connection with white list countries. Can my hon. Friend give me the same reassurance that people who are not from white list countries who want to appeal to the divisional court against their certificates will not be removed before the applications have been fully heard?

Beyond that reassurance, I seek a stronger reassurance, because a perusal of other aspects of the legislation seems to show that those who have been certified as clearly unfounded in their claim, even if they judicially review, whether or not they are going to a white country, will not be entitled to any asylum support while they wait for their case to be heard. Judicial review becomes a thin remedy indeed with no means of sustenance and support while trying to implement it. Can my hon. Friend give me some assurance about what seems to be a lacuna in even the scant protection that the divisional court may be able to offer?

Simon Hughes

Is it the hon. and learned Lady's personal interpretation or that of her Committee that the proposals as amended appear to apply to people whether they are inside or outside the UK? That has been a controversial issue. Does she accept that the UNHCR evidence is clear that a presumption against a person can be effectively rebutted only if that person has a right of appeal and is based in the UK? That is important.

Vera Baird

I have made it clear that I do not speak on behalf of the Joint Committee in any of what I say. The Joint Committee raised the real difficulty that, on the face of the proposed legislation, the exclusion of the words a person within the United Kingdom seemed to mean that no one had a right of appeal anywhere. However, I took that point up with the Minister only recently, and I am now satisfied that a proper reading of the legislation leaves open that appeal from outside the country. I accept wholeheartedly what the hon. Gentleman says about the UNHCR and the need to rebut by having an appeal in the country. It is a thorny area for those who have a strong interest in human rights and ordinary decency.

It seems that there will be resort only to the independent monitor who will produce a report only to the Home Secretary and presumably not deal with individual claims. May I suggest that the independent monitor should instead be answerable to the Joint Committee on Human Rights on behalf of the House?

Beverley Hughes

In the four minutes remaining to me, I shall do my best to address the issues that hon. Members have raised, and any that I miss I shall deal with in writing.

The hon. Member for Woking (Mr. Malins) raised a number of issues and invited me to write to him. I shall write to him on the many questions that he asked about the details of the process and make the reply public. We are still working on some aspects, but it is important that hon. Members should have the information for which he asked and I shall set that out as clearly as I can.

I invite the hon. Gentleman, and any other hon. Member who would like to do so, to visit Oakington. Anyone who saw the process, the circumstances and conditions there might be reassured about the close attention to the issues of quality that we want to bring to bear on the process. For the record, the hon. Gentleman asked me about bilateral agreements, and it is important to remember that these clauses provide for two types of non-suspensive appeal. The first type, on which there has been most focus this evening, occurs where the Secretary of State certifies the claim to be clearly unfounded. In such cases, the person would be returned to their country of residence, so there would be no need for the bilateral agreement to which the hon. Gentleman referred. The second type of case occurs when we refuse a claim and consider that there is a safe third country. The person concerned can appeal against that refusal. Clearly, we would need bilateral agreements to make use of that process. The hon. Gentleman is right to say that no bilateral agreements with other countries have yet been signed, but we need the necessary legal powers to pave the way for them.

My hon. Friend the Member for Slough (Fiona Mactaggart) expressed concerns about a person who had understandable reasons for not appealing against a refusal, but is denied a right of appeal on making a subsequent application for asylum. Certainly, the powers to certify under clause 84 will be exercised on an individual basis. If a person could have appealed, but did not do so and then applied again, we would consider what reasons they had for not appealing. I cannot give my hon. Friend an absolute assurance that the second application would be successful in avoiding certification. However, it would be judged on its merits and the reasons for not appealing in the first place would be taken into account, again on their merits.

I should like briefly to mention Lords amendment No. 215, to which a number of hon. Members have referred. The advisory panel is an important development. As I said, we will consult the panel about countries that we are considering adding to the list, but I say in response to my hon. and learned Friend the Member for Redcar (Vera Baird) that its job is to cover all countries from which asylum applications come.

It being five and a quarter hours after the commencement of proceedings, MADAM DEPUTY SPEAKER put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question agreed to.

Lords amendment No. 127 agreed to.

Madam Deputy Speaker, pursuant to Order [this day], proceeded to put forthwith the remaining Questions necessary to dispose of the proceedings to be concluded at that hour.

Lords amendments Nos. 128 to 153 agreed to.