§ 3.39 p.m.
My Lords, I beg to move that the Asylum and Immigration Appeals Bill be now read a second time.
Your Lordships will remember that a similar Bill came before your Lordships' House almost a year ago, but that it did not get beyond its Second Reading before the dissolution of the last Parliament. The Bill which is before your Lordships today reintroduces the main provisions of last year's Asylum Bill. It also contains new provisions to make the immigration appeals system more efficient.
The main aim of the Bill is to improve the efficiency and the speed of operation of the immigration system. It seeks to ensure that resources are used more effectively in deciding the questions which really matter.
In relation to asylum, the main aim of the Bill is to allow applications for asylum in the United Kingdom to be dealt with more speedily than they are at present but, nevertheless, still fairly. The Government remain committed to meeting their obligations under the 1951 United Nations Convention on Refugees.
Like many other countries in western Europe, we have in recent years seen a massive rise in the number of applications for asylum. But again, like most other countries in western Europe, we have found that most of the applicants are not genuine refugees. There has, therefore, been a marked fall in the proportion of applicants who prove, on examination, to have a "well-founded fear of persecution" within the terms of the 1951 convention.
It is clear, therefore, that many people are now using the asylum process simply as an attempt to circumvent the normal immigration controls. That is a misuse of the process, and it is one which the Government consider should be stopped. An important objective of the Bill is, therefore, to discourage the non-genuine applicant for asylum from trying his or her luck.
The main weakness of the present system is the long delays which leave the genuine applicant uncertain about the final outcome of his application for far too long. And it is the genuine applicant whom we all wish to help. At the same time, those delays give many applicants who are not genuine refugees the opportunity to stay on here for so long that it becomes virtually impracticable to remove them.
It would be quite unrealistic, of course, to try to exempt from the normal immigration controls any person who simply declares himself to be a refugee. By the nature of things, many people who are not refugees would simply just take advantage of such a loophole. The Government's aim is, therefore, to create a system which can speedily and fairly identify 1148 which applicants are genuinely in need of the country's protection, and then to help them. But at the same time, we must ensure that those who do not need our protection, or who simply set out to abuse the system, do not succeed in staying on here. I find it hard to believe that your Lordships would disagree with such a principle.
When I introduced the Asylum Bill to your Lordships last year, I said that asylum applications had increased tenfold, from about 4,000 in 1989 to nearly 45,000 in 1991. Those are figures for principal applicants. They exclude dependants.
I am glad to be able to tell your Lordships that, in 1992, the number of new applicants fell from 45,000 to about 24,600. Although that figure is nearly half what it was the year before, it is still six times what it was three years ago. It certainly does not mean, as I believe some have suggested, that the Bill is now therefore no longer required.
We are not introducing this Bill because we have some predetermined figure for the number of refugees which we believe should be accepted in any one year. The enormous increase in recent years cannot, though, be explained by world events, and the fact is that the great majority of applicants prove, when their case is examined, not to be genuine refugees. The need for a speedy and effective determination system is, therefore, just as strong now as it ever was.
In order to achieve that situation, the recruitment and training of staff for the Asylum Division of the Home Office has continued throughout the last year. Since April 1991 (and that is less than two years ago) the number of staff in the division has risen from 120 to 530. I suggest that to recruit and train those numbers of staff represents a considerable achievement and it underlines our intention to see that the whole system functions better. And we are beginning to see the results.
The number of cases which were decided in 1992 was almost 35,000. Of those, just over 15,000 were refused simply because the applicants repeatedly failed to attend interviews or to provide information. That leaves 20,000. Of that remaining 20,000, only 1,000, which is just over 5 per cent., were found to be genuine refugees and were therefore granted asylum. But over 15,000 (that is, nearly 80 per cent. of that remaining 20,000) were granted exceptional leave to remain.
Some of that category—those who were granted exceptional leave to remain—were people who did not qualify as refugees under the United Nations Convention but who were, nevertheless, allowed to stay for genuine humanitarian or compassionate reasons. A great many more, though, had to be given exceptional leave to remain simply because by the time that their case was decided, it was far too late to try to return them to the countries from which they had come. So by any standards I do not think that we can be accused of being harsh. In fact, we have been enormously understanding and conciliatory.
Perhaps I may briefly describe the main provisions of the Bill. Clause 1 defines a claim for asylum in terms of a potential breach of the United Kingdom's obligations under the 1951 Convention on Refugees. Clause 2 ensures that the provisions of the convention 1149 will prevail over any potentially inconsistent provisions of the immigration rules. This means that the rules, which prescribe the procedures in more detail, will always be consistent with the conventions.
Clause 3 provides powers to fingerprint asylum seekers and their dependants. At present there is a problem in identifying asylum seekers, as many of them present themselves without the proper documentation. There is evidence which shows that people have been claiming asylum in a whole host of different names so that they can fraudulently obtain social security benefits.
When we debated the Asylum Bill last year, I mentioned to your Lordships that one person had made 34 applications for asylum, all in different names. One asylum applicant had even applied for social security benefit under 50 different names. He has, I am glad to say, been prosecuted. Abuses of the system like this are quite intolerable and must be stopped.
A comprehensive record of the fingerprints of those who are seeking asylum will enable the Home Office to be sure that an applicant has not made a previous application. It has been suggested by some, I know, that the reduction in the numbers of new applications since the adoption in November 1991 of a standard acknowledgment form bearing the applicant's photograph, and the fact that convictions for social security fraud have already been obtained, show that the fingerprinting power is not necessary.
That is a view with which I am afraid I cannot agree. The fact is that no-one knows the scale of multiple applications, and systematic fingerprinting is the only way in which multiple applicants can be reliably identified. There is no question, as some people have suggested, that this precaution will somehow criminalise asylum seekers. It will not do anything of the sort.
The system will be operated by the Immigration Department, and it will be entirely separate from police records. It will not operate because an individual asylum seeker is believed to have committed or is considered likely to commit an offence. It will be a routine part of the administrative process of handling an asylum claim. Every other country of the European Community, except Ireland, makes use of fingerprinting in their asylum systems. I suggest that it is right that we should.
Clauses 4 and 5, and the first schedule, contain provisions which would modify the duties of local authorities under the homelessness legislation in relation to asylum seekers' and their dependants. It makes no sense—and it is unfair to people on local authority housing waiting lists—if asylum seekers, whose claims have not yet been decided, were able to secure permanent accommodation in this country. The provisions in the Bill would allow local authorities to take into account the availability to the asylum seeker of other reasonable accommodation. They would also limit the duty on the local authority, so that, until the application is decided, the local authority would have to provide only temporary accommodation which is suitable for the asylum seekers' needs.
1150 Clause 6 prohibits the removal from the United Kingdom of a person who has an outstanding claim for asylum. This clause, which simply confirms our existing policy and practice, was added during the Report stage of this Bill in another place. It complements provisions which were already in the second schedule to the Bill and which prohibit the removal of a person who has a pending asylum appeal.
Clause 7 provides for the curtailment of an existing leave to remain in this country when an asylum application is refused. The curtailment power is not in fact new, since it exists under the 1971 Immigration Act and the current immigration rules. It is, though, a cumbersome and protracted way of requiring a person's departure, as it involves successive rights of appeal—first against the curtailment of the existing leave and then, if the person refuses to go voluntarily, against a decision to deport him.
We do not intend to curtail the leave of all unsuccessful asylum seekers as a matter of routine but, in many cases, the asylum application will have cast serious doubts on the entitlement of a person to continue to remain here in the capacity for which he was admitted—for example, a person who claims to be a tourist but who plainly has no intention of leaving at the end of his purported visit. In these cases, we need to be able to move quickly in order to require a person's departure, subject to a single right of appeal on which the merits of the asylum claim can be investigated.
Clause 8 and Schedule 2 provide for a right of appeal to a special adjudicator for all unsuccessful asylum applicants. Your Lordships may remember that, in last year's Asylum Bill, there was a requirement to obtain leave from a special adjudicator before an asylum appeal could proceed to a hearing. We have changed this, having taken full account of your Lordships' observations on the previous Bill, and the present Bill dispenses with the need to obtain leave before an appeal proceeds. All asylum applicants will now, under this Bill, have a right to an oral hearing.
There is, though, still a need for a filter in order to prevent applicants, who have quite obviously unfounded claims, from "working the system" in order to delay their departure. Such a filter is now provided for in Schedule 2, by means of a special, quick system for claims which are certified by the Secretary of State to be without foundation.
Clause 9 provides a right in asylum cases to appeal, by leave, to the Court of Appeal, on a point of law about a determination of the tribunal.
Clauses 10 and 11 are new provisions which were not in the previous Bill. They remove the right to appeal under the 1971 Immigration Act against certain immigration decisions. Clause 10 removes the right of appeal against the refusal of entry clearance, or against the refusal of leave to enter, as a visitor, as a short-term student, or as a prospective student. Clause 11 removes the right of appeal against decisions which are taken on the ground that certain specified mandatory requirements of the immigration rules have not been met—in other words, where the law has not been adhered to.
1151 These proposals have understandably aroused a degree of controversy in another place, but the Government remain of the view that these changes are necessary in order to provide a fair and speedy solution to all those applicants who are seeking to challenge decisions which have a fundamental impact on their future lives. I really do not believe that these people should have their cases delayed because the system has been clogged up by a whole host of cases which are for visits of a duration of less than six months. Decisions on these short-term cases, however important personally they may be, are simply not in the same category as a decision on whether or not to let someone stay permanently in this country.
Clause 12 amends the Immigration (Carriers' Liability) Act 1987 and puts on a statutory basis the existing administrative arrangements for requiring passengers who pass in transit through a United Kingdom airport to be in possession of visas.
The provisions in this Bill reaffirm the Government's commitment both to protect the genuine refugees and to maintain a firm and fair immigration control to deter and to deal with those who are unscrupulous. We have no intention of sending refugees who enjoy the protection of the 1951 Convention back to countries in which they would have a well-founded fear of persecution. We need, therefore, to prevent the abuser from "working the system". We need, in short, to have a system of considering applications which is both fast and fair, and which also commands respect and confidence. That is the system which the Bill seeks to create. I hope that it does so, and that it has your Lordships' approval. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Earl Ferrers.)
§ 3.56 p.m.
§ Lord McIntosh of Haringey
My Lords, the House will be grateful to the noble Earl for the very clear way in which he introduced the provisions of the Bill. I note that he managed to do it in six minutes less than he took last year on the previous Bill although the present Bill is slightly longer. However, he presented the Bill rather as if this was the end of a process of legislation lasting a number of years—as though this were some kind of tidying-up measure and that, when this legislation has been passed, there will be no need for further reforms. I fear that he is wrong.
I fear that in the 1990s we are entering a period in which, throughout the world, the issues of migration, especially between third-world countries and first-world countries, and, sadly, the issue of those who are in fear of their lives, in fear of torture and in fear of severe discrimination in their own countries, will not go away. I fear that this is an issue which will become of increasing importance in our political life not only in this country and not only in Europe, but throughout the world.
We can already see how this issue is affecting our fellow members of the European Community. Germany has an immigration problem which is very much greater than ours. It has, for example, a border 1152 with Poland—the Oder-Neisse border, which is as open as the Rio Grande is between the United States and Mexico. The effect of that has been, to the horror of decent German people, that there has been an upsurge of racist violence within Germany—racist violence against Romanian gypsies, against many people who are not ethnic Germans and even against those ethnic Germans who are guaranteed a right of return by the German constitution.
Britain is a country which can deal with a very large number of the problems faced by our European partners by denying access to determination to would-be entrants to this country. And that, of course, is what we do. The Asylum and Immigration Appeals Bill is dealing only with the tip of the iceberg of those who would like to enter this country. Those people never reach the determination procedure. They never reach the appeals procedure. They never reach any of the procedures (however good or bad they may be) which are described in the Bill because they cannot get here in the first place. As soon as there appears to be a situation that might result in people wishing to flee to this country as refugees, we immediately slap on visa requirements for them. We have slapped on visa requirements in relation to Yugoslavia in particular and have made sure that visas are available only in cities which the applicants most in need cannot reach. Therefore, we are dealing with only a small part of a world-wide problem. I should not like it to be thought that consideration of the Bill by Members on these Benches will be conducted in ignorance of the nature of the world-wide problem that we face.
Neither should I like it to be thought that Members on these Benches can see a possibility of the unrestricted entry of economic refugees into this country, into any European country or into any first-world country. The problems created by the different levels of standards of living and of poverty in third-world countries will not be dealt with by border controls. They must be dealt with by concerted efforts as discussed at the Rio de Janeiro Conference last year. Concerted efforts must be made to deal with poverty where it arises rather than shutting it off, putting it into a large ghetto and dealing with it by immigration controls. That is not to say that the problems with which the Bill is concerned are not real. They are the problems of those who achieve entry into our ports and airports and claim to be what the Bill calls "asylum seekers" but who we ought honestly to call "refugees" because that is what they are recognised to be. We shall have many disagreements about the provisions of the Bill but I wished first to put the matter into context and to indicate the seriousness with which we view it.
As the Minister has said, the Bill deals with the definition of asylum and uses the 1951 convention. We welcome the fact that that convention is declared to be superior to any provision of legislation in this country. Unfortunately, when we look at the draft immigration rules published by the Home Office it appears that that is not the case. We shall propose an amendment to insert into the Bill as a new schedule the draft immigration rules which were previously published on 22nd October last year. We propose to put them onto 1153 the face of the Bill in order to deal in detail with the rules, which are the subject of a great deal of disquiet in this country.
Those draft rules are not on the face of the Bill but amendments will be debated in Committee. I hope therefore that the House will allow me to comment briefly on them. Rule 2 deals with removals to and from third safe countries. Rule 11 provides that the Secretary of State does not need to consult those third countries in order to be satisfied that they are safe countries. That is an extraordinary provision. It implies that the Secretary of State will have the opportunity to return people to a third country but no ability to satisfy himself that it is a third safe country. For geographical reasons the concept of a third safe country is of importance to us.
Rule 7 provides that it shall be a presumption against asylum that false representations have been made and that there has been disposal of documents. In other words any of the actions which a refugee escaping probably illegally from a country would have to take will be a presumption against granting asylum. I suggest that that is directly in contravention of Article 31 of the 1951 convention. It is certainly in defiance of the common sense of anyone who can conceive the conditions under which people must sometime make representations to escape from discrimination, torture, imprisonment or, even worse, for political reasons.
Rule 6 refers to the necessity for a prompt application to be made. Let us imagine the conditions under which some people reach this country having effected an escape from their own country and the difficulty which they might have in making a prompt and full disclosure of their circumstances. By far the most tempting thing will be to describe immediately how they arrived. They might not think it relevant to describe the long periods of imprisonment or the discrimination which they and their families previously suffered. Rule 7 refers to the necessity to make that application forthwith, which is another way of saying the same thing.
In general, Rules 6 to 10 refer to the decision-making criteria which will be used in determining the application. The significance is that they are directly against the good practice set out in the handbook issued by the United Nations High Commissioner for Refugees. At page 2, paragraph 4, his position statement declares that:any selection of factors which should be given special consideration when assessing a claim will necessarily be arbitrary".If, in addition, the selection is made with the declared aim of providing the Home Office with a list of reasons to refuse applications the impression conveyed is one of bias against asylum-seekers. Our case against those draft rules is that they have the impaired declared aim of providing the Home Office with a list of reasons for refusing applications and they are, therefore, biased against asylum-seekers. We shall be seeking to correct that position.
I shall spend only a short time on fingerprinting and the issue of unaccompanied minors entering this country. I know that many of my noble friends are better informed than I and that noble Lords 1154 throughout the House will wish to deal with that. The use of fingerprinting in anything other than criminal cases is an innovation in this country and that is a little extraordinary. The Minister has told us that there is no way of knowing how many multiple applications there are. In Committee in the other place the Parliamentary Under-Secretary stated that he knew of only 27 prosecutions for multiple application. Under those circumstances, and bearing in mind the fall-off of applications after the introduction of the standard acknowledgment letter, it is difficult to see the case that is being made for the serious new extension of fingerprinting, in particular of children who will be well aware of the suffering that their families have undergone and the powers of an uncontrolled autocracy in their own countries.
I am sorry to say that Clauses 4 and 5 which deal with housing are equally objectionable. The principle that we have always had in our housing policy, and to which local authorities have rightly been required to adhere, is that housing should be allocated in accordance with need rather than status. They are now being told that the status of an applicant for housing is more important than need. "Need" has been perfectly well defined; it is priority need or vulnerability. The local authorities are being required to satisfy themselves of the status of such applicants. Local authorities are not members of the Home Office and they do not know the rules for defining status. Their job is to deal with housing need and it is a distortion of that job to turn the problem over to them.
The problem is of course local because only 1 per cent. of applications for housing on the grounds of homelessness come from refugees. The burden is unevenly spread and occurs in only a few local authorities. It so happens that it occurs in my local authority of Haringey. That appeared to be the first place to which people went from Kurdistan in 1989, from Eritrea in 1990, from Somalia in 1991 and 1992 and from who knows where in 1993. That should be dealt with positively by special grants to those authorities which are in difficulty and by a policy of using national resources to relieve the burden rather than by a distortion of housing policies which are well established and well justified.
I pause briefly to welcome Clause 6 and then turn to the issue of curtailment of leave to enter or remain in this country. The curtailment of leave to enter or remain imposes a kind of catch-22 situation. If somebody who is here for another reason applies early for asylum, then he or she is likely to find, if leave is refused, that their legitimate accepted reason for staying no longer exists and their visit is curtailed. If they apply late, they will be caught under the draft immigration rules which say that an application must be made forthwith.
The lack of an appeal is the most serious element. Judicial review is no substitute for that. On Second Reading last year the noble and learned Lord, Lord Ackner, warned about the dangers of relying on judicial review as an alternative to proper appeals procedures. He used the phrase "forensic myopia" about it. Judicial review not only costs more but it is 1155 increasing. It is in danger of taking over from the proper formulation of primary legislation. I am not reassured by what the Minister said about curtailment not being done as a matter of routine.
In Clause 8 there are improvements as regards dealing with the right of appeal. Certainly it is right that Clause 6 should have been introduced. It is right that there should be oral hearings. Of course it is right that there should be a speed up of the time in which appeals are considered. We welcome the target of 28 days for the consideration of appeals.
As regards Clauses 8 and 9, which deal with the rules of procedure, many of the matters which are objectionable about the Bill are not to be found on the face of the Bill. Therefore, we shall take the rules of procedure, which have been published by the Lord Chancellor's department, and we shall move an amendment to insert them into the Bill as a schedule so that they can be criticised in detail and can be subject to amendment when the Bill is considered in Committee. That is the only way in which we can deal directly with the most objectionable of the rules of procedure; namely, the fast-track, two-day system.
Clause 10 refers to visitors and short-term students. It is here that we begin to be concerned with wider issues. We are concerned almost entirely with ethnic minorities because those are the people whom it affects. There may be a funeral, a wedding or some occasion when the visitor may need or wish to come from Bangladesh, India, Pakistan, the Caribbean or wherever it may be, to visit a person who is legitimately in this country. According to Clause 10, such visitors can be turned away by an immigration officer at the frontier with no right of appeal.
It is not just an issue of whether or not appeals are successful. The experience of the Immigrants Advisory Service shows that 40 per cent. of appeals against refusal to visit and 30 per cent. of appeals against the right to enter as a student are successful. Therefore, the appeals procedure is clearly doing something. However, immigration officers will surely behave differently if they know that there is to be no appeal against their decisions. If they know that there is a right of appeal, they must behave with more circumspection and care. It is not satisfactory to say that there will be detailed refusal notice and that there can be a second application.
Clause 10 and Clause 11, which is related to it, as the CAB evidence has clearly shown, eat into the heart of the family and community life of a large number of the people of this country—those not of white, UK origin. Those clauses are deeply objectionable to us and we shall try to take out the whole of Clause 10 as well as seeking to amend it.
I shall not spend time on carriers' liability, but clearly this is a particularly objectionable attempt by the Government not to have a determination process which is fair but to deny as many people as possible access to that determination process. That is the Government's aim.
This piece of legislation has far wider implications than the length of the Bill and the acknowledged welcome clarity of its language suggest. We are 1156 dealing with a definition of refugees which is 40 years old and which is, frankly, inadequate at present. We are dealing with issues which are being treated negatively by border control procedures rather than positively: first, by taking international action to remove the causes of migration between countries; and secondly, by providing internally for a positive settlement policy for those who are allowed into this country.
Had we been in government, we should have been looking to those positive aspects of international migration rather than to this footling, unnecessary and rather damaging piece of legislation which is before us now.
§ 4.17 p.m.
§ Lord Bonham-Carter
My Lords, I thank the noble Earl, Lord Ferrers, for the very clear exposition which he gave of the Bill. I do not propose to go through it clause by clause, which has already been done twice, but I shall touch on certain aspects of the Bill which seem to me to be objectionable.
I express some surprise at the noble Earl's description of the Government's attitude as being "enormously understanding". That is an extraordinary description of certain elements of the Bill to which I shall refer later.
I share the sentiments expressed by the noble Lord, Lord McIntosh of Haringey, and in particular his reference to the rules and the need to look at them very carefully, as they seem to me to be, on the whole, thoroughly undesirable. I agree also with the noble Lord when he says that this Bill tries to tackle a problem which is real, worldwide and will not go away. At present it is estimated that there are 18 million refugees in the world, mainly from what is called the third world and mainly settled in other third world countries. As the noble Earl told us, we had 44,000 applications last year, dropping to 22,000 or 24,000 this year. One cannot draw any firm conclusions from those variations but it is clearly the case that the numbers of refugees have greatly increased.
It is equally the case that we are living in an age of migration of which refugees are a part. I agree with the noble Lord, Lord McIntosh, when he says that this Bill is part of a wider picture and cannot be considered in isolation from the huge migratory movements which are taking place today. In the 1990s migration will remain very high on the agenda. Potential migration from Maghreb in the southern Mediterranean is put potentially at 1.25 million per annum. Potential migration from the ex-Soviet Union countries and from central and eastern European is even more difficult to estimate, depending as it does on political and economic factors. It is substantial already, and could become huge.
I conclude from this—and it seems self-evident—that no single country can meet this problem acting on its own. A European response at least is required, probably a world-wide response to a world-wide problem, whereby some kind of agreed quotas are allocated to those countries able to receive asylum seekers. I do not see much sign of any such response 1157 in the Bill or in the Government's response to the free movement of labour enjoined by the Treaty of Rome, reinforced by the single market. I see all too many signs of a somewhat insular approach based on the proposition that we in this country are different, that our borders are defined by the white cliffs of Dover, and that being fixed in that way we can continue to rely on border checks to an extent which no continental country does.
As the Economist pointed out in an article last August, that is becoming an increasingly anachronistic view of the situation. Most people who come to this country come by air. Very few, relatively speaking, come by ship, and when the Channel Tunnel is open that view will become even more anachronistic.
Although Ministers will no doubt resist furiously any denial or qualification of our special position, I doubt whether they will be able to maintain it in the long run, both because the free movement of labour is intrinsic to the single market and because if we have benefits within the Community we must also share burdens. Also, I suspect that in due course the European Court will not uphold the position which we have maintained.
In my view it is not good enough to insist that refugees should settle in the country nearest to them, resulting in Germany receiving in 1991 256,000 asylum seekers as against the United Kingdom and France with 47,000 each. The consequences of that situation were described very accurately by the noble Lord, Lord McIntosh, as outbreaks of wholly undesirable manifestations of racism. We must aim to provide, for those who are genuine refugees, havens which satisfy their needs and wishes as far as possible, and we must share the burden equitably within the Community as a whole.
I should like to support and draw your Lordships' attention to a proposal made by the noble Lord, Lord Jakobovits, which he would have made had he been here—unfortunately he is not—which seems to me constructive and sensible. In a letter which I think others of your Lordships will have received, he suggested that we should remember the Evian Conference called by President Roosevelt in 1938. In the event it was not very successful, but that does not mean that the idea was not one which we might consider. He called it under the aegis of the Refugee Committee of the League of Nations, and in it the United States undertook to take in 27,000 to 30,000 refugees per annum, which was about a quarter of the number of projected emigrants at that time, provided that other powers followed suit according to their population and capacity. It was estimated that this would have meant that 100,000 people a year would have come out of Europe at that time. Regrettably, very few powers responded to that idea, and in the event millions of people died in the holocaust.
I do not see why this country should not call an international conference, a new Evian, to deal with this international problem under the auspices of the Community or the United Nations or both. It is far preferable that this should be done openly, and that we should try to allocate rationally and answer the needs humanely of the large numbers of people whom 1158 we know exist, than that there should be hole-incorner confabulations of the Ad Hoc Group, as it is called, which meets every six months, the discussions of which are secret and outside parliamentary scrutiny. It has nothing to do with the Commission, and is one of those examples of that concept of political co-operation which is so beloved of our present Government. Political co-operation of this sort ends in a compromise, in a bargain, and nearly always in the lowest common denominator. We have seen political co-operation at work throughout the Yugoslav crisis, and we have seen how badly it works.
In my view, what is wrong with the Bill is the attitude that underlies it, expressed by the noble Earl when he emphasised almost throughout his speech the need to deal with those who set out to abuse the system. It seems that those who drafted the Bill would prefer to keep someone out who ought to be allowed in rather than let someone in who perhaps ought to be kept out. Rather than allow someone to manipulate their system, they are prepared to consign others, it seems, to imprisonment, to the possibility of torture and of death. That is what makes the whole Bill so thoroughly negative and unpleasant in its content and in the impression which it gives to anyone who examines it.
The people who drafted the Bill seem to think that people become refugees for fun or profit. That is a very unlikely idea. By far the greatest number of people who become refugees, who leave hearth and home, their family and their culture, moving to a country the language of which they probably cannot speak, the customs of which they do not know, do not do that for fun. They do it from despair, from fear of persecution. That is the main motive driving people to become refugees and to seek asylum.
I find it depressing to see this country forget its own traditions in this matter, and forget that from 1823 to the end of the 19th century we did not refuse the entry of a single refugee; nor did we expel a single refugee. I know that conditions have changed since then, but that does not mean that we should forget the spirit of generosity which that tradition embodies. The spirit of generosity is singularly absent in the terms of this Bill.
In that respect I should like to point to the way in which the Bill treats children. Can one really say that the terms of this Bill in the treatment of children are, in the words of the noble Earl, enormously understanding? The fact of the matter is that children are not treated as such at all. The United Kingdom law does not distinguish between adults and children seeking asylum. Children are expected to negotiate the asylum procedures as though they are adults. It seems self-evident that special provision should be made for dealing with children, as is recommended by the Select Committee which has just reported on migration, and as has been recommended by almost all the bodies concerned with children and the reception of children under the Bill.
That is particularly relevant to unaccompanied children. The fact that there are very few unaccompanied children—only 128 in 1992—does not invalidate the argument. One has only to think of the predicament of the unaccompanied child, who, 1159 probably in a terrified and traumatised condition, has been thrust onto an aeroplane by terrified parents. It has probably never been on an aeroplane before and does not speak the language of the people on the aeroplane. It is dumped from the aeroplane at the other end and is met by no one who has any idea of its background, circumstances or needs. It seems to me that the Children's Legal Centre which, backed by Save the Children, has proposed a system of special advocates to look after children who arrive in that position, has made a case which cannot be denied.
The needs of refugee children coincide with the needs of large numbers of other vulnerable people which are not met or even addressed in the Bill. Nothing demonstrates that more clearly than the rules. That point was illustrated clearly in the speech of the noble Lord, Lord McIntosh, and I do not need to dwell on it.
I was interested by the noble Earl's discussion of multiple and concurrent applications. How many multiple applications have been made by children? What is wrong with concurrent applications? It seems perfectly sensible to make concurrent applications. If I were a refugee and wanted to settle somewhere I would try at least two countries in case one of them turned me down. I do not see anything wicked about that. However, it is referred to as though it were a dishonest and sinful procedure. I should like to be told why it is not just common sense.
The rules relating to children show a total lack of understanding. How can a child be expected to apply for asylum forthwith on arrival? Is it possible or likely that a child from Somalia who lands at Heathrow will immediately say in perfect English that he wants to give a full account of why he wants to settle here? That is beyond comprehension. The rules as they stand need totally redrafting and I hope that that will be done.
It is no good saying that fingerprinting does not criminalise. In this country at present the only people who are fingerprinted are criminals. Therefore, to say that it is not a sign of being a criminal is contrary to common sense. To fingerprint children would be a monstrous act.
The application of carrier liability, to which the noble Earl referred, to children is also shocking. Some children have not been allowed to land here and have been sent back by the airline because of carrier liability. Do the Government think that that is enormously understanding? The noble Lord, Lord McIntosh, dealt with the subject of housing very fully and I need not repeat what he said.
While we welcome the automatic right to appeal, which is indeed a great step forward, as the noble Lord, Lord McIntosh, said, we greatly regret Clause 10 under which short-term visitors and students who are refused asylum can be deported and have no right of appeal. That is a matter which must be contested, particularly in the light of the number of appeals in the last year which have been successful, which has also been mentioned.
I conclude by saying that I thought that the Bill 1160 which we considered last summer was a thoroughly bad Bill and I think that the Bill which we have this winter is also a bad Bill. I hope that it will emerge from your Lordships' House improved. There is certainly room for improvement. Its blemishes derive from a fundamental lack of generosity, a lack of imagination and a basic hostility to the idea of the refugee. Yet it is a truism that this country has been largely populated by waves of immigrants. I ask your Lordships to consider your Lordships' House. How many distinguished Members of your Lordships' House arrived here as refugees? How many as immigrants? How many are the children of refugees or the children of immigrants? In some ways this House is a living demonstration of the benefits of accepting and welcoming refugees and immigrants. It is proof of a law which I have invented and which I am afraid is true: all immigration in the past is good and all immigration in the present is seen to be bad.
§ 4.35 p.m.
§ The Lord Bishop of Ripon
My Lords, I also should like to thank the noble Earl, Lord Ferrers, for introducing this Bill with his customary blend of courtesy and robust argument.
Those of us fortunate enough to live in a stable and relatively prosperous society have little understanding of what it means to live in a society which is unstable and violent, where power is exercised arbitrarily, brutally and viciously and where the normal expectations of settled home and livelihood are absent. We find it difficult to imagine the apprehension, fear and trauma induced by such experiences. Perhaps the dissolution of the former Yugoslavia has to some extent sharpened our sympathies and deepened our compassion. Many of us knew that country, only as visitors or tourists, and now reflect that the neighbourhoods that we knew as settled, welcoming places have become battlegrounds. The situation is replicated in country after country. We have been set free from major world confrontation between East and West only to find that a multitude of lesser hostilities besets our world. Each one brings its share of suffering, misery and destruction.
I hope that I shall be forgiven for telling a short story which has nothing to mark it except perhaps its ordinariness. It is the account of a journey by bus to the city of Jaffna in the North of Sri Lanka. It was written by a young woman doctor who was going to visit her parents. She described the frequent military checkpoints. She was particularly aware of an elderly man and his grandson who were the object of suspicion from the military. Finally, the grandson was separated at one checkpoint and the military threatened to take him into detention. All Tamil young people in Sri Lanka are suspected of belonging to an anti-government group. The old man fell to his knees, wept and pleaded, and finally his grandson was restored to him. The doctor commented on the extreme range of emotions which the grandfather endured, a range of emotions commonplace in Sri Lanka and many other countries. Other stories of 1161 course have a different outcome. In a country like Sri Lanka disappearances and deaths are frequent. Behind each story is a suffering family.
It is no surprise therefore that in such circumstances the number of asylum seekers is high. The noble Lords, Lord McIntosh and Lord Bonham-Carter, spoke of migration. A substantial part of that migration is due to the unstable nature of many countries. I find it curious that those who deny that seem unable to relate what I find to be a very high correlation between numbers of people seeking asylum from a country and the state of unrest in that country. As a statistician it seems to me quite clear that that correlation is high.
Each unstable country has its own statistics. In Sri Lanka it is estimated that over 1 million people are refugees in a population of some 15 million. Mostly, they remain in their own country. Those who flee to another country do so mostly to a neighbouring one. The vast majority of Asian refugees are still in Asia.
It is in that setting of a world in which internal strife is increasingly rampant that we face the situation of those who seek asylum in a more distant country. The moral basis of our response to them is compassion for those of our fellow humans whose suffering we can help to alleviate. Those who have a well-founded fear of persecution in their own lands need a refuge. It is the responsibility of those who are privileged to live in stable societies to offer that refuge, which is embodied in the United Nations convention.
In a world where such strife is increasing, the need for asylum is also likely to increase. That point was made by the noble Lord, Lord Bonham-Carter. As he said, no single country can be expected to cope with the response on its own. Should there not be agreed action and a coherent policy which enables countries not only to agree internationally how they will handle the issue but which also enables any single country to have within its own structures ways of handling those who seek refuge and asylum? Would that not be better than the piecemeal response both internationally and within our own country which at present seems to be the rule?
It is my belief (and others have echoed it) that the liberal attitude and policies of a former generation which gave this country a fine reputation are now steadily being eroded. I speak first of attitudes. There is much use of the term "bogus asylum seeker" with the implication that the majority of those who arrive here have no genuine case. We know of course that they can arrive here only with great difficulty. Yet when they arrive they are greeted by an inhospitable climate, a climate clouded by the implication that they are frauds. I accept that some of them will be frauds. However, there is a great difference between presuming that such asylum seekers are genuine until proven not so, and presuming that they are bogus until they have established a claim. That difference in attitude is bound to affect the way in which immigration officials and others carry out their work. It seems to us that the presumption that they are a fraud until proven not so, lies at the heart of the 1162 present immigration rules. I hope that we shall be able to debate those rules in Committee in your Lordships' House.
I now turn to the Bill. I wish to refer to only one or two points within the Bill. It is intended to speed up the system by which the status of an asylum seeker is determined. As such it is a Bill which in principle should be welcomed. If it achieves that aim, I welcome it. There is a backlog of about 47,000 undetermined cases. Each year thousands of further cases are added —about 24,000 in 1992. Will the provisions reduce that number, as the Government hope? I suggest—it may be somewhat naively in your Lordships' House—that possibly the most effective way to reduce that backlog is to give an amnesty to all those whose cases are being considered. I have heard that suggestion made by those who work in the field; perhaps it is not so naive as it seems. Some of them suggest that that is the only realistic way of getting rid of the great backlog. It would then enable us to deal more expeditiously with the cases of those entering the country at present.
With reference to the notion that many who come to this country are frauds, I put a question to the Minister on his comments that the majority of those whose cases are determined are found not to be genuine asylum seekers. It is indeed the case that only a small proportion of those are given asylum status. A much larger proportion are given exceptional leave to remain. Did the Minister base his statement on the figures given? Is it not the case that many in the category given exceptional leave to remain are very close to the borderline, if not within the status of those who ought properly to receive asylum?
I instance one example: those from China who, at the time of the Tiananmen disaster were all given exceptional leave to remain although it is possible that among them there were a number who should have been granted asylum. Among those given exceptional leave to remain, are there a large number whose cases are more genuine than is being suggested?
I welcome the granting of appeal rights in the revised Bill. I continue to believe that the chief requirement of the legislation should be not rapidity but justice. If any of the provisions of the Bill increase in any way the likelihood of an asylum seeker being returned to a situation about which he or she has a well-founded fear of persecution, such provisions should be altered.
Other noble Lords will speak on a variety of worries. I wish to address only one or two. I refer first to the 48-hour time limit. A number of persons to whom I have spoken who work in this field seriously question whether the time limit is workable. Indeed, they believe that it will not be. I understand that the clock will not begin to tick until the moment at which a document is given into the hands of an asylum seeker. Nevertheless such a person surely needs access to legal advice. If legal advice is not provided with thoroughness and care, are there not likely to be more appeals made frivolously? Will not the system work more expeditiously if proper time is allowed for access 1163 to legal advice? Has the appellate authority been invited to give a view on the workability of the 48-hour regulation? If so, what was its view?
Other noble Lords will speak, as has the noble Lord, Lord Bonham-Carter, about the clauses for unaccompanied child asylum seekers. As has been pointed out, our legislation does not at present distinguish between adults and children seeking asylum. Although small in number, those children represent a vulnerable group. The Children Act 1989 gave special consideration to the needs of children. The United Nations convention on the rights of the child stated that in all matters affecting a child the best interests of the child should be a primary consideration. Given the fact that children arriving in this country are an exceptionally fragile and vulnerable group, should not provision be made especially for them under the legislation? Should there not be the provision of a child-advocate, as was suggested in another place? Such an advocate would be responsible both for the child's welfare during the determination of the asylum case and also in relation to statutory services. The provision of such an advocate would be a substantial step forward.
Fingerprinting is surely an unnecessary provision. I make that comment from two angles. First, it is well known that in some countries children and young people are fingerprinted, interrogated and perhaps tortured. Inevitably for them fingerprinting will be associated with that kind of activity. The children arrive in this country believing that they are reaching a safe haven. The first thing that happens is that they are fingerprinted. Surely the trauma associated with that is considerable. It is easy for us to say that there is no difficulty in fingerprinting, and to point out that it happens in other countries in Europe. But we are not in the situation of those children. For them it is a difficult and possibly traumatising event with which they have to cope. I question whether it is necessary.
The noble Earl, Lord Ferrers, talked about the statutory acknowledgment letter. Perhaps he will explain in greater detail why that letter is not effective in preventing multiple applications. A photograph is required. Such evidence as is available indicates that the letter is achieving its aim. Surely it is unwise to introduce legislation which will arouse feeling both in this country and among asylum seekers and which is also unnecessary.
The clause requiring a visa for transit passengers produces considerable difficulties for children. It will make it extremely unlikely that they will be able to reach this country. It is often difficult for many refugees to obtain the documents they need; but especially difficult for children. They are effectively being prevented from exercising their right under the Geneva Convention to seek asylum.
That brings me back to the thesis with which I began: far from being a defended fortress, keeping at bay all those who seek asylum from unstable areas, we should acknowledge and accept our responsibility.
I have other anxieties to which I know other noble Lords will speak. I finish by saying that we shall be concerned in Committee to address those anxieties 1164 and bring forward amendments which will make the Bill a more compassionate piece of legislation, as well as a fair one. In doing so, we seek to sustain the reputation of this country as a place where human dignity is maintained and human rights are secure.
§ 4.50 p.m.
§ Lord Mackay of Ardbrecknish
My Lords, I believe that I am typical of most people in this country when I say that when I examine the question of asylum and immigration I am torn in two directions. One direction very much follows that which the right reverend Prelate has just been discussing: we, with our civilised values, ought to give succour to those people who suffer from political persecution, wherever it is in the world. As the three previous speakers indicated, we have a long tradition of that and most people in this country would wish that tradition to be maintained.
On the other hand, we are aware—especially in the modern world with communications being so easy, with people seemingly able to move from one continent to another with great rapidity via aircraft and the like—that many people would quite happily move to this country simply to get away from the misery of their own country. That misery may be brought about by the political system, but usually it arises because the political system brings economic chaos in its wake. It is from that economic chaos—whether it be direct or the indirect economic chaos which we see in some parts of Africa with famine and disaster—that they wish to escape. We understand that, but I believe that most of us feel that as a small country with a large population in a small island we are quite unable to run the kind of open-door policy to which our sympathy might well tempt us. We simply cannot do it and we must have some controls. I believe that the noble Lord, Lord McIntosh, admitted as much in his speech. However, I did not notice that admission in the speech of the noble Lord, Lord Bonham-Carter, and I was not surprised at it.
When granting political asylum we must try to distinguish between those people who, if they stayed in their country of origin, would be persecuted for their political views and others who would not. I believe that we should treat the former sympathetically and speedily. However, those people who want to come here as economic migrants are, I am afraid, quite a different kettle of fish. If we had plenty of room and a vibrant and growing economy, then perhaps we might be able to be much more sympathetic. But I believe that we have neither of those advantages.
When, day after day in your Lordships' House, I hear the parties opposite complain of unemployment and housing problems, I find it difficult to square that with the desire to be fairly uncritical when it comes to allowing people into the country for reasons other than those which I mentioned of persecution and political asylum. I therefore believe that the Bill will be welcomed by most people in the country if it attempts to draw a clear and fair line between those two kinds of people who wish to join us in this island.
On the question of asylum, there is absolutely no doubt, as my noble friend said, that the figures have greatly increased in the past few years. I am interested 1165 that between 1991 and 1992, as he indicated, there was a fall in applicants for asylum. I wonder whether that had something to do with the existence of the Bill which fell at the general election.
What worries me more than that fall and the reason it should have come about is that many people, when investigated, are found to be fraudulent in the claim they make for asylum. I found it interesting that the two speakers from the parties opposite did not argue with the figures that my noble friend put forward. If I remember them, he said that of 35,000 people considered, only 1,000 were found to be genuine. I had thought that we had reached a stage where only about 10 per cent. were found to be genuine, a decrease in about five years from 60 per cent. which appeared to he genuine.
§ Lord McIntosh of Haringey
My Lords, if I may intervene, the noble Lord appears to be saying—and I hope I am misinterpreting him—that those people who do not achieve asylum under the rules must be making a fraudulent application. Surely that is not the case. There are those who apply genuinely and are not granted asylum, but that does not mean that the applications are fraudulent.
§ Lord Mackay of Ardbrecknish
My Lords, perhaps I should not have used the word "fraudulent" but the applicants certainly did not obey the rules for being genuine seekers after political asylum. Otherwise we should have let them in.
What my noble friend said—and perhaps it answered one of the points mentioned by the right reverend Prelate—is that most of the other 34,000 were allowed to stay under exceptional leave or simply because so much time had elapsed. If I wanted to enter this country and realised that the system was so clogged up that if I applied and sat in the waiting room long enough, the British Government would allow me in under exceptional leave, then I should be tempted to do that, if the country from which I came was a pretty miserable one. However, that is not fair on those people who wish to come here and genuinely seek asylum because of persecution.
What concerns me is that if too many people try to use the asylum procedure to enter the country when they are not genuine, it will damage those people whom we wish to allow in as quickly and expeditiously as possible because they are fleeing from political persecution. I do not believe that anyone can argue with the need laid out in the Bill for the speediest possible resolution of the cases of those people who apply for political asylum and their right to come and live here to escape the persecution which they suffered in their own country.
The same has to be said as regards immigration. The speediest possible way to resolve the applications must be provided for in the legislation. In my capacity in the other place I had little experience of immigration partly, I suppose, because not many people thought that the West Highlands of Scotland —especially in a January such as we have had—was exactly the place where they wished to settle. 1166 Interestingly enough, when I had cases and had to apply to Ministers, I found them extremely sympathetic, understanding and careful.
One could never extrapolate from the couple of cases which came to me, but I point out that one of them was genuine and the Home Office quickly agreed that in the exceptional circumstances the person should stay. In the other case—the only one in my history to date—I ended by receiving an apology from a lawyer because he had been hoodwinked, as I had. We were assured by an Indian restaurant owner in Oban that the individual was absolutely essential; for the whole edifice to continue, it required him to cook for them. He had come to the country specifically to do so and was being held at Heathrow, etc. I wrote to the Minister and, after a fairly short time, he replied. He said that it was funny because the gentleman at Heathrow had never mentioned that he wished to go to Oban, in fact he wanted to go to a restaurant in London. The Minister had also received a letter from that restaurant along similar lines. The lawyer sent me a profuse apology that he had misled me and I sent a similar apology to the Minister.
Thus I am afraid that with 50 per cent. of people being genuine and well treated by the Home Office and 50 per cent. not genuine at all, that is perhaps not a good start from which to extrapolate. But I fear that it may be a reasonable picture of the total.
Therefore, I believe that we must be fair both to the people of our own country and to those who over the years have come from abroad to our country. We must ensure that everyone realises that we have firm and fair immigration rules. If we do not ensure that, then I believe that our own racial harmony within the country will be damaged. Certainly, when we look at other countries with freer immigration policies, we realise that that is something we do not want.
I very much welcome the Bill. If it manages to speed up dealing with applicants both as political refugees and for immigration, then it will have served a useful purpose. My noble friend says that there is nothing in the Bill and nothing in the Government's intentions to prevent those people who are genuinely being persecuted in their country of origin from seeking the asylum which they and many people over hundreds of years have found in this country. I am sure that that ought to be more than enough for noble Lords to support the Government and vote for the Bill to receive a Second Reading this evening.
§ 5 p.m.
§ Lord Mishcon
My Lords, some of the finest speeches have been delivered in Parliament over the last century on the subject of this country and its tradition in admitting refugees. Most of the finest speeches have been brief. I cannot try to imitate the first category, but I can try to imitate the second.
Noble Lords have already heard criticisms and praise of the Bill in a detailed fashion. I would especially like to commend those who have delivered merciful speeches this afternoon and speeches in the great tradition of this country.
Following the point of the last speaker, I think one ought to try to get this matter into some sort of 1167 perspective. The perspective that I try to adopt, knowing your Lordships' good hearts, is: how would you feel if you were leading a refugee family? I do so because of the use of adjectives such as "fraudulent", "wicked" or "wrong" in regard to people who have come here knowing of the hospitality of our shores and fearful of the conditions in the country from which they have come. Many of them have to be turned away. They do not come within our definition of refugees. But is this House or any Member of it going to regard as criminals those who seek a place on God's earth—it is all God's earth—merely because they have come to better themselves and the conditions of their families?
They are not criminals. They are not wicked people. That is the way I would act had I not had the great benefit and blessing of being born a British subject. Had I been in Somaliland, or in many of the countries ravaged by hatred, war, bestiality and torture, I would try to get my family away. Were I merely in an impoverished country and could see no chance of my children having a proper education, even of getting proper food, would I not try to lead them to a kindlier shore? So, may we get that situation into perspective? When we have it in perspective, perhaps we may look at some of the remarks that were made, for example, by the noble Lord, Lord Bonham-Carter.
Indeed, I had to cross out from my memory some of the things I had intended to say because he has said them so well. When will the Government Front Bench come forward with a proposition to the effect that, although we have to bring in a Bill which of necessity must discipline the entry for asylum into this country of refugees, we intend to lead a campaign? This is a rather wicked world. There are all too many people who will have the designation of refugee. We intend to lead a plan for Europe. We are going to make it fair. We are going to see that each country takes the quota that is possible. We will see that regulations are fair. We are going to adopt them, if we can, nation by nation, internationally. If we cannot do it, as I said, on a world scene, perhaps we can do it on a European scene. Surely that is an excellent reason for the EC. It is perhaps far better than some of those that have been given of late.
We hear that it is a blessing that in the Maastricht Treaty each country is able to make its own policy for immigration and refugees. I do not regard that as a blessing for Europe. I would have thought it was quite the opposite. I would have thought that hands would go out from one country to the other, offering to combine all this, so that none takes an unfair share but all take a fair share.
I look at the detail of the Bill. Of course the noble Lord, Lord Mackay, is right. There has to be a limitation. The gates may be open but they cannot be stretched so open that it becomes an absolute evil. It can become an evil if gates are stretched too wide. I acknowledge that, and so do my friends. Nothing that my noble friend Lord McIntosh said contradicts that —in fact, he said it quite expressly. But when we have limitations, ought we not to imagine for a moment that we are subject to those regulations?
1168 I listened to the noble Earl, Lord Ferrers, as I and all Members of this House do, with the greatest possible respect. I say it openly of him, that there is not a better hearted man in this House. But when he talks, for example, in terms of taking fingerprints and says that every other country in Europe has done it so why should not we not do it, I am ashamed of those countries. I am proud of my country that does not.
Are we to take people who have come here in misery, wanting our help, and say to them—we do not say it to anyone else at all except those who are charged with a criminal offence —"We want your fingerprints taken"? What reason is given? There could be duplication of applicants and presumably we must have somebody examining thousands of fingerprints to see if they happen to be duplicated.
When Members of another place were faced with the fact of children under 16 having their fingerprints taken, the Government were moved. They were hugely moved. They put in an amendment to the effect that that the child had to be accompanied by an adult. What mercy was shown!
There is then the question of housing somebody who is in this country. Normally, as your Lordships know, it is the duty of the local authority to house the homeless. What do we do in our good-heartedness and sagacity? Do we say to the local authority that if they have found temporary accommodation—in other words, if a church institution, or any body, has housed them for a little while, or some family has taken them in—it has no obligation at all to house them? No assistance to local authorities is spoken of by the Government; nor any idea for settlement and education of the refugee children. We just say: do not house them; you do not have to.
I know that we have to pass a Bill of this kind. It is inevitable. According to our tradition we will pass the Second Reading of this Bill. But when it comes to the other stages, can we keep to our tradition?
§ 5.10 p.m.
§ Lord Donaldson of Lymington
My Lords, following the advice to be brief of my noble friend Lord Mishcon, I shall confine myself to commenting on Clauses 10 and 11 of the Bill. I do so in the belief that they raise issues of principle.
As your Lordships will know and as can be seen from the Bill, Clauses 10 and 11 contain restrictions on existing rights of appeal. What the Bill does not bring out is how limited are even the existing rights of appeal. They are contained in Section 13 of the 1971 Act. Section 13(1) provides the basic right, namely, that,a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the decision that he requires leave or against the refusal".Subsection (2) provides somewhat similarly for certificates of entitlement or entry clearance which, as your Lordships will know, is a procedure which can be gone through abroad, in effect giving one a personal visa to assist one's entry into this country.
One reaches the snag in subsection (3). After dealing with people who have a right of abode in this country—that is not the category being dealt with in the Bill—subsection (3) states, 1169and a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit".In other words, unless he has some form of official approval before he arrives here, he cannot appeal without first leaving the country. That has been brought to the attention of the courts on more than one occasion. As judges we were unable to say that it was wrong. We must respect the law as laid down whatever we may think of it. But many learned judges said that it works extreme hardship, and indeed it does.
The Government now propose to cut down even that right of appeal. As I understand it from the speech of the noble Earl, they do so in the interests of efficiency. I am bound to say that that reason had not occurred to me. It has a certain brilliance based upon its sheer simplicity. Some noble Lords may be aware that for 10 years I was Master of the Rolls and striving in every way to make the Court of Appeal civil division more efficient. It never occurred to me that one of the simplest and best ways would be to abolish certain categories of appeal or, if possible, all categories of appeal. But that is what is proposed in this instance.
Therefore I look at Clause 10. I am told by the noble Earl that it does not matter greatly because it is all concerned with applicants who merely want to spend a short time in this country. What is wrong with the draconian limited right of appeal which exists at present? For those people and indeed for others, it says, "You cannot appeal unless you go away." What is wrong with that? I cannot imagine that many people were able to make use of that right of appeal if they were coming for a short visit which, in the circumstances of their case, probably had to occur at a specific time or not at all.
However, Clause 11 is the really vicious clause—I use the word advisedly. It is not limited to short-term applicants. It provides that to Section 13 (the primary right of appeal section) we are to add subsection (3B), which states:A person shall not be entitled to appeal against a refusal of an entry clearance if the refusal is on the ground that",and there follow three grounds.
At the end of the clause appear the words:a person shall not be entitled to appeal against a refusal of leave to enter if the refusal is on any of those grounds".Let us look at the words. Subsection (3B) says,if the refusal is on the ground that".Those of us who have dealt with immigration cases know that the proposed immigrant is given a piece of paper on which there is a blank to be filled in by the immigration officer. I imagine that there is an equivalent one for entry clearance certificates. It says, "I have refused leave to enter on the grounds that". There then appears a colon, a dash and a blank where he inserts in manuscript whatever is the reason.
Is the Minister seriously saying that if the immigration officer fills in that blank saying that the applicant or his dependant does not hold a relevant document required by the immigration rules, then that is an end of the matter? Is he seriously saying that if the applicant or a person whose dependant he is has 1170 not satisfied me of some requirement of the immigration rules, or as to his age, nationality or citizenship, then that is an end of the matter? There is either a naivety or an arrogance in the attitude of the Home Office that its immigration officers must inevitably be right. Yet if they are not right, what is to happen?
I hope that the answer, if the applicant is properly advised, is that he should immediately apply to the High Court for judicial review on the ground that Parliament never intended to take away an existing right of appeal on the footing that it had gone whether the decision-maker was right or wrong. That was explored in this House in its judicial capacity in a case called Kwaja. It was laid down that in cases where a jurisdiction or lack of jurisdiction depends on what is described as a precedent fact, the courts will entertain a challenge to the existence or non-existence of that precedent fact and the burden of proof will be on the Home Office to prove or disprove it.
If the Bill should go through in this form and if, as I hope, disappointed applicants, who are not only disappointed but who know that they were right and that the immigration officer was wrong, are properly advised, the courts will have added to their already far too long judicial review lists an additional number of immigration appeals or applications. If the choice is between allowing injustices and errors by immigration officers—they are not infallible—to go unremedied or seeing the courts become clogged up, then the courts must follow their traditional role of accepting an undue burden in the interests of justice.
I hope that the noble Earl and the Government will think again about a clause which, as phrased, must remind every judge and lawyer of the great battles fought some years ago in the case of Anisnimic.
§ 5.18 p.m.
§ Lord Reay
My Lords, a situation has arisen which the Bill seeks to address and which any responsible government were bound to have to do something about sooner or later. The number of those seeking asylum in this country, as in other European Community countries, has risen vastly in recent years, as my noble friend Lord Ferrers explained. At the same time the proportion of those found eligible and whose applications are found to be genuine under the 1951 Geneva criteria has steadily dropped until it now represents only 10 per cent. or less of all applications. That was a point made by my noble friend Lord Mackay of Ardbrecknish.
Why should increasing numbers of those who are ineligible nevertheless apply for asylum? Surely it is because cumbrous appeal procedures allow temporary rights of stay with a good chance that a temporary stay, or in many cases a further temporary stay, may produce the right to a permanent one on other grounds. To such an extent had this developed that the Secretary of State was able to tell another place that up to 60 per cent. of those whose applications for asylum were rejected under the Geneva criteria were nonetheless ultimately admitted into the United Kingdom on other grounds—for example, because they had acquired British husbands or wives. My 1171 noble friend Lord Ferrers gave similar figures this afternoon. What at first looks like a 10 per cent. success rate among those applying for asylum is more like a 70 or 80 per cent. success rate but largely on grounds that have nothing to do with those originally purported. It is no wonder that the numbers have continued to swell, as my noble friend, Lord Mackay, suggested. Our asylum law and in particular its appeals procedures have been used as a means of bypassing our immigration law. As my noble friend said, it has been misused; it has been clogging up the system for those truly entitled to asylum, who may have to wait years for the decision to be allowed to settle. And it has been imposing an increasing administrative burden on this country.
I firmly believe that to allow such a disparity to persist between what the law is intended for and what in practice is permitted to take place is dangerous. In this country we have been fortunate to enjoy broad public support for our immigration policy. What happens when the public cease to have confidence in a country's immigration laws has recently been demonstrated all too clearly in France and Germany. I have no doubt that there is a direct link between the difficulty that Germany has in acting to stem the flood of asylum seekers and the re-emergence of manifestations of fascism in that country. The public in all countries expect governments to act to protect their way of life and standards of life from assault from outside in whatever guise that may come.
Having earlier increased the number of Home Office staff dealing with asylum cases from 120 to 500 and still finding themselves unable to reduce the backlog of 64,000-odd, the Government are now sensibly seeking to streamline the appeals procedures. As I understand it, the aim is to establish a timetable to enable the appeals process to be completed within three months. Clearly, unfounded cases will be dealt with more quickly. To deal with the problem of multiple applications and the apparently prevalent practice of applicants arriving at ports of entry with their papers destroyed, the Government will introduce fingerprinting to assist in identification—a power now held by virtually all our EC partners. Asylum seekers may continue to have the right to temporary local authority housing but no longer (as at present) permanent local authority housing. Surely, on the face of it that is a justified proposal, although I note the objections made to it by the noble Lord, Lord McIntosh.
What the Government have to do and will be doing under the Bill is to reduce the advantages of unjustified asylum applications. Too many advantages attach to the making of an appeal irrespective of its chance of success. It must be emphasised that no asylum seeker will have his right of appeal removed under the Bill; indeed, that right is extended. Further, almost alone in Europe, free legal representation will continue to be provided. The Government have also taken the opportunity presented by the reintroduction of the Bill to attack the parallel backlog of immigration appeals currently running about a year in arrears. Large numbers of immigration appeals 1172 (over 10,000 a year) are appeals by prospective visitors and short-term students or pointless appeals against mandatory refusals where the applications do not meet the basic requirement of the immigration rules. The purpose, presumably, is to procure an extension by taking advantage of the law's delay. Here the Government propose to remove the right of appeal. Those who fail to satisfy the authorities that they are bona fide visitors may be greatly disappointed. But, as my right honourable friend the Secretary of State justly said on Second Reading in another place:If I were to be turned down on a request to visit another country, I would no doubt be annoyed, but I would not expect full judicial procedures to be invoked in my appeal against that decision". [Official Report, Commons, 2/11/92; col. 33.]Nothing will prevent an unsuccessful applicant making another application at a later date.
However, cases of greater importance—for example, applications for settlement on grounds of marriage—will continue to enjoy full rights of appeal and, almost uniquely in Europe, will have the cost of those appeals met from public funds. As my right honourable friend the Secretary of State, at col. 34, put it:There are few countries where taxpayers pay for legal representation to allow people who have never previously set foot in that country to challenge the decisions of the authorities".We will remain just such a country.
We have an open country where people come and go as they please in large numbers. Last year 8 million people came to this country from outside the EC. We must also preserve our ancient tradition of offering asylum to victims of political persecution in other parts of the world. No doubt in an ideal world we should like to welcome to these shores all who seek to come here in order to make a better life for themselves. There is nothing reprehensible in such ambitions. In that respect I entirely agree with what the noble Lord, Lord Mishcon, had to say. But no country—not even the United States—can today afford to welcome all-comers on a permanent basis. The more crowded and more accessible countries of Europe certainly cannot afford to do so.
What we need to do is use our influence by means of aid policy and other measures—here I echo and expand upon what the noble Lord, Lord McIntosh, said—to further the growth of democracy and free enterprise in other parts of the world and permit the spread of the prosperity which we enjoy to other parts of the world by the adoption of liberal trading policies. By such means we can hope eventually to act on the numbers desperately seeking to come here.
The Government and the Secretary of State are to be congratulated on having had the courage to grasp a difficult nettle in an intelligent and moderate manner. I do not know whether the Bill is perfect in all respects. We will have an opportunity to examine it more closely in Committee. Several noble Lords have already laid down markers as to the ways in which they will seek to change it. But I believe that the Bill should be given a chance to succeed in its primary purpose of addressing a problem whose existence, I suggest, is by now obvious to everyone.
§ 5.27 p.m.
§ Lord Taylor of Gryfe
My Lords, like the noble Lord, Lord Bonham-Carter, I should like to feel that this debate on our attitude to refugees can be lifted into the real world of experience and away from the atmosphere of the fraudulent and bogus.
Recently I had the privilege of being in one of the last outposts of the British Commonwealth in Central America: Belize. There I witnessed the arrival of the victims of persecution in Guatemala and Nicaragua. They had been wandering through the forests for days eating whatever they could gather with their families, including young children. They arrived at the immigration procedures.
I am happy to say that the attitude of that outpost of the British Commonwealth to the arrival of refugees was rather more liberal than that evidenced in this Bill. Those poor people were welcomed with the assistance of the United Nations High Commission for Refugees and cared for. Today 20 per cent. of the population of Belize is an immigrant population speaking Spanish whereas the existing language in Belize is English, which they are learning. My point is that this brought home to me the reality of the refugee problem. These are not bogus or fraudulent people; these are not dodgers. They are people. At the latest count there are 20 million people who have been uprooted from their homes, uprooted from their families, and uprooted from their languages and their traditions. They are wandering around the world at this moment. And so we should be sensitive to the needs of these poor, rejected and miserable people.
I attended a meeting in Westminster last night presided over by the right reverend David Sheppard. Speaking at that meeting were representatives of the Jewish community and the Church of England race relations committee and representatives of some of the black Churches. In addition there were representatives of the Roman Catholic Church and so on. It was a broadly ecumenical affair. I only regret that I cannot match the eloquence of the indignation that was expressed by those representatives last night in examining the impact of the Bill.
In addition to their respective criticism on various aspects of the Bill, I have never received so much briefing material as I have received in connection with this Bill. This includes material from the Association of Local Authorities, dealing with housing. The Commission for Racial Equality is a government appointed body responsible for looking at the provisions for racial harmony in our midst. It is alarmed at the impact of the Bill on race relations in the United Kingdom because it appears to be a Bill prejudiced against ethnic minorities. I have received material from the British Refugee Council, dealing with the question of fingerprinting, and from the Churches Commission for Racial Justice. I have received material from Shelter, dealing with housing and the effect of the Bill on family life in the United Kingdom. I hope the Minister will realise that this is not a small party issue of the Opposition fighting the Government. We will try to improve the Bill. I would hope that we might command some Cross-Bench support, which has been evidenced by some of the 1174 speeches made today. Let us try as a House to be committed to doing our best to respond to the great moral challenge of the refugees.
My experience with refugees goes back a long way. I worked on relief and rehabilitation in Europe after the last war. I try to compare the attitudes today to the refugees with the attitude of this country to the problem of refugees at the end of the last war. The problem of the refugee is not a new one. At the end of the last war 21.5 million people had been removed from their homes one way or another. The Germans had brought them into Germany for the war factories and so on. There were 21.5 million footloose people at the end of the war in 1945. If we look simply at Europe, in 1946 there were more than 1 million displaced persons. By 1945 the United States had taken the large majority of 195,000 refugees from Europe into the United States. It was reported in a Foreign Office report in 1945 that Britain had taken 60,000 immigrants from Europe.
This whole exercise was organised by the United Nations Relief and Rehabilitation Administration, of which I was an official. This corresponds to the proposition by the noble Lord, Lord Bonham-Carter, and by my noble friend Lord Mishcon that this is an international problem and has increasingly to he dealt with at a European and international level. So great was the problem recognised in those days that a minute of the time stated—I regret to say that the noble and learned Lord, Lord Hailsham, is not in his seat—that:On Jan. 11 Mr. Eden received a deputation from both Houses of Parliament led by Mr. David Grenfell and including Lord Horder, Lord Lytton, Lord Melchett, Lord Perth, Sir Percy Harris, Mr. Quintin Hogg … and Miss Eleanor Rathbone, who urged, in view of the continuing German atrocities in occupied countries, the greatest possible activity and speed in rescuing as many persons as possible".That was our response to the refugee problem that emerged at the end of the war.
I sometimes wonder whether our society has changed dramatically when we were able to respond with such generosity at the end of the war to nations which had suffered even more than we had. We were a poor country at the end of the war. We had been bombed. We had soldiers coming back from the front. We had all kinds of economic problems at that time. We were not the affluent society of today. Yet at that time Britain responded generously to the demands and needs of refugees. Not only did we do that but in order to finance the international operations of the United Nations in this field, this country, despite its relative poverty at the time—we had suffered and we knew what suffering was—responded by giving 1 per cent and not 0.3 per cent. of our GDP to the United Nations Relief and Rehabilitation Administration in order that it might carry out its obligations and assist people who were less fortunate than we were at that time. What kind of society have we become? Why are the virtues of caring and compassion becoming devalued? We were a better people when we were able to respond to these demands.
I shall not deal with all the details of these clauses which have been so adequately dealt with already by my noble friend Lord McIntosh and others. What 1175 worries me is our attitudes and whether in our society we should be examining our responses to these great needs. In this global village of ours there are allegedly 20 million refugees. Are we responding to the moral challenge that is involved in that? I hope that we will do so in the course of our consideration of the Bill.
§ 5.39 p.m.
§ Lord Ackner
My Lords, I propose to start my submissions to your Lordships on a harmonious note, to end on a similar note and in between to venture a few slightly critical observations. I start by paying a tribute to the Government for accepting the criticisms which were made about the inadequate appeal procedure and granting to applicants who fail in their applications a full right of oral appeal. That is a great step forward. But I think it resulted in the Government, having experienced this degree of generosity, then taking fright; and like most actions dictated by fright, they tend to have a measure of irrationality about them.
I refer to the 48-hour time limit which is imposed by the appeal procedure rules, I understand, on port applicants who are in detention. That is both wrong in principle and in practice. In principle it goes quite against the keynote as adumbrated by my noble and learned friend the Lord Chancellor, when he moved the Courts and Legal Services Bill, that we are all anxious to improve access to justice. If one grants a right and then makes it impossible to exercise it, one grants nothing. That is the point of principle.
Perhaps I may now turn to the question of its practicability. It will be wholly counterproductive. A person who has no time to consult an adviser or an adviser who has no time to make the necessary inquiries of a safe third country, Amnesty International or elsewhere, will automatically put in an appeal notice. With thought and consideration, no notice of appeal might have gone in at all.
It is forensically myopic to think that a rushed procedure is in effect going to produce efficiency. It is not going to produce—although I wholly sympathise with the Government's aim—a quicker method of dealing with appeals. Perhaps I may take a rather poignant example in relation to a judge now sadly deceased, Lord Justice James, known to many practitioners here. He was a great friend of mine but, unlike myself, he was a workaholic. It is generally thought that he brought about his early demise by an excess of work. There was a very long list at Birmingham Assizes. He said, "I will seek to crack it"; that is a forensic phrase which some noble Lords may have heard before. To do that he decided that he would sit a nine o'clock every morning instead of at 10.30 throughout the six-weeks assize. The net result was that he achieved a performance of about one-half of what an average judge would have achieved sitting at 10.30, for the very simple reason that he deprived the litigants of the opportunity to discuss their litigation between 9 and 10.30 which so frequently leads to door-of-the-court settlements.
That is precisely what will happen with the proposal for the 48-hour notice. There will be an 1176 automatic entry of appeal and, so far from unclogging the system, the system will be more clogged; whereas 10 days to consider the validity of an appeal by sensible advisers, would produce a substantial reduction in the number of such appeals. I therefore urge on the Government to be realistic and to realise that sound advice is the way to cut down the number of appeals. That is something that we have been unsuccessfully urging on the Lord Chancellor in legal aid debates; namely, that if only people had proper access to advice they would either not exercise bad, non-existent claims or they would exercise sound ones which would settle quickly.
My second point is the withdrawal of the right of appeal to visitors and students who seek only temporary leave. They have a present right of appeal and it is now decided to withdraw it. As has been previously said, they should not —because it is not so serious as an application for asylum —receive the full judicial process. Again, I sympathise with that.
But there is always a via media in these matters. Having had their application rejected, why should they not have a right to apply to a special adjudicator for leave to appeal? That is a well-known sieve which is operated throughout the county court in relation to the Court of Appeal and from the Crown Court to the Court of Appeal (Criminal Division). If the special adjudicator then says "No, I have considered the merits of the decision. There should be no leave", then there is an end of the matter. The strain on the resources will be negligible. One has only to consider the list of 40 or 50 cases which the average stipendiary magistrate gets through every day, to realise that one could double or treble that figure with a special adjudicator who is dealing with cases of comparative simplicity.
I suggest that there are the following grounds to justify what I have submitted. First, the record to date of the fallibility of decisions on this subject. Out of 8,000 cases, I am told that there have been 1,700 successful appeals, which is one in five. Does not that justify a further step? Secondly, if one removes any appeal then one can expect the fallibility to rise. The check that a possible appeal has, not only on the behaviour of a judge or adjudicator, but on the merits of his decision, requires no further explanation by me. Thirdly, if one removes the right of appeal it will give rise to inconsistent practices. By the absence of any ability to have an appellate process you cannot in any way control the vagaries, inconsistencies and the eccentricities of decisions. Fourthly, a person who has been wrongly refused leave will have a taint as a result. He will be tainted in relation to future applications to this country whatever the protest may be to the contrary. But more serious still, he may be tainted as a result of this refusal when applying to another country. It may be said, "You have not been acceptable to the United Kingdom—and we know what a sound system they have—and so we do not look at you". Of course, there is no right of appeal. Those are my grounds.
My third point relates to the designation of so-called unfounded cases by the Minister. It is no doubt a characteristic of my profession that we do not 1177 like entrusting judicial decisions to the Executive. That is precisely what is being done. It will inevitably give rise to an increased incidence of judicial review because that is the only remedy. My noble and learned friend the Lord Chief Justice recently addressed this House and said that the present position as regards judicial review is little short of disastrous. There is a two-year wait to get on before the single judge and there are only two judges trying to run a list where five or six are necessary.
Since I cannot state it as well as Mr. Justice Megarry (as he then was) in 1970 in the case of John v. Rees, perhaps I may read out very shortly what he said:As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which somehow were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change". [Official Report, Commons, 21/1/92; col. 244.]I return to my note of harmony—certainly, harmony in relation to the Government. I refuse to get emotionally involved in this question of fingerprinting. I observed that in another place it reached the crescendo of being said to be an infringement of some fundamental human right. I suggest that that is nonsense. Only today I heard on the wireless at about 8 a.m. the suggestion that, to avoid the errors of misidentification in newborn children, there was a proposal that newborn children should be fingerprinted. I assume that there will be an outcry from those anxious to preserve human rights. But it is a nonsense when identification is so important, as in this field. Documents may not exist because they may have been destroyed quite innocently or were never issued. There is also the risk of fraud. I cannot understand why a person who is anxious not to have unfounded allegations thrown at him should be reluctant to go through the simple process of being fingerprinted.
My second note of harmony vis à vis the Government relates to the housing legislation. A great benefit is conferred by the Housing Act 1985 on one category of the homeless—those in priority need. They jump the queue (usually a vast queue) of those who are building up priority points in order to get housing. Why should an applicant for asylum, who has not yet had that application granted and who, on the statistics, stands a one-in-ten chance of being successful, jump the queue until he is found to be a valid applicant? What is the matter with such an applicant being housed in temporary accommodation, which has to be satisfactory in all the circumstances relating to that particular individual?
I end with two questions which I hope are not disharmonious. First, is any provision to be made for the unaccompanied child? With respect, I should have thought that that was essential. Secondly, what is the position to be with regard to legal assistance (in particular, legal advice), for those seeking to make their applications?
§ 5.53 p.m.
§ Lord Beloff
My Lords, as a child immigrant among those to whom the noble Lord, Lord Bonham-Carter, referred, I am obviously sensitive to Bills of this nature. I have therefore listened with great attention to all the speeches that have been made and have even tried to read the mass of briefing which, as the noble Lord, Lord Taylor of Gryfe, reported to your Lordships, has reached all of us.
I was particularly struck by one remark in the speech of the noble Earl, Lord Ferrers, who introduced the Bill. He said that in the interim, since this subject was last discussed by your Lordships, the Home Office has recruited and trained several hundred new officers for the duty of looking after these problems. The question that struck me was: what is the training? What does it consist of, and does it include some moral exhortations to those officers not to think themselves too clever? That is to say, finality does not exist—or should not exist—in agents of the Executive. For that reason, the fact that successive noble and learned Lords on the Cross-Benches have referred to the importance of a proper appeal procedure seems to me one of the most relevant points that has so far come out of our discussions.
Beyond adjuring those officers to be modest, I wonder what they are told about the background to this problem. It was referred to in passing—naturally, only in passing—by the noble Lords, Lord McIntosh of Haringey and Lord Bonham-Carter. The more one thinks of it, the more one can see that one of the problems—and none of us would deny that the Government have genuine problems—is that the world scene has changed totally in respect of, among other things, why people emigrate, where they emigrate from, and what we now mean by a "refugee".
The noble Lord, Lord Bonham-Carter, referred to the welcome which this country gave without question to all political refugees from the continent of Europe throughout almost the whole of this century. But, of course, those political refugees differed to one very considerable extent from many of those who now seek refugee status in that they hoped that they were coming here for a temporary stay. They hoped to use this country as a base—and sometimes they did—for intriguing or plotting against the despotic regimes they had fled in the hope that they would then return and perhaps replace those regimes with themselves and their friends.
We are not in that position now. Indeed, one of the problems that we face is that not only do many people now hope to make this country their permanent home —and that is understandable—but we must also worry about whether that kind of thing, which we thought was all right when it was a question of King "Bomba" of Naples or even Napoleon III, is conducive to our relations with some third world countries. This has been brought to our attention by the security problems that are currently attending the Prime Minister. It was also brought to our attention by the disturbances, luckily on a fairly small scale, involving ethnic minority communities in this country after the destruction of the mosque at Ayodhya in India. So, the position is different.
1179 It is difficult to use the term "a fear of persecution", which no doubt seemed perfectly obvious to the United Nations at the time of the governing convention, because "a fear of persecution" suggests that an individual is singled out for his religion, race or whatever, and that he is an identifiable individual who is seeking refuge. However, although most of the cases that we now see in the world involve people whom we would broadly call refugees—I am sure that the noble Lord, Lord Taylor of Gryfe, would agree with me—it is not individuals who are being singled out. We are talking about whole groups of people—indeed, whole nationalities.
Many noble Lords—certainly on this side of the House—have heard my noble friend Lady Cox talk about the suffering of the population of Nagorno-Karabakh. If those people could go to any country outside the former Soviet Union, they, as a whole, would be refugees because they are living under the threat of death through starvation or military action, but not as individuals. The Azerbaijanis do not pick out a particular Armenian—at least, not in most cases —and say, "We are going to torture you or persecute you." They are trying to eliminate an entire people. Yugoslavia, an area which is more frequently in the press, reproduces aspects of that. In such a country the definition of a refugee, which enables people to talk about bogus or pretended refugees, is largely beside the point.
We may have to build upon existing legislation and do what we can with it. However, we must face the fact that we live in a world where people migrate not only for economic reasons and in order to seek a better life —I agree with the noble Lord, Lord Mishcon, that that has always been possible and desirable, although there are problems for the host communities—and that we live in a world of extreme violence. That violence produces groups, among other things. However, the whole thrust of the legislation before us is to try to fix upon the case of an individual and to eliminate almost specifically the case of a group of people arriving because all, by virtue of their origin, race or religion, are under threat.
It is necessary that we should take up the challenge flung at us by the noble Lord, Lord Taylor of Gryfe, as to whether this country is less civilised than it was at the end of the Second World War. The noble Lord may exaggerate that to the extent that the attitudes of countries towards immigration have varied according to their need for labour in particular. After all, we had to explore the circumstances in which some immigrants reached this country. They later turned out to be undesirable citizens, to put it no higher. But there was then a feeling that we could find jobs and we did so.
A similar reason explains why at different times countries have been more or less generous to immigration. For instance, we all know about the migration to the Americas and to Australia in which the inhabitants of this country took a great part. Approximately 40 million people emigrated there during the middle decades of the 19th century. Between 1870 and 1914 three million people emigrated 1180 from eastern to western Europe because jobs in mining, construction and agriculture could easily be supplied. I suggest that the anxiety which understandably leads a government to say, "Clearly, the doors cannot be flung open excessively", arises in part because of the inevitable connection between the figures of unemployment and the feelings towards extra people coming in. Indeed, Germany and France have already illustrated that. Although one would like to say, "But, of course, immigrants have in the past created great opportunities for employment" and, in the various sectors of our national economic life, one can think of huge firms, giving employment to hundreds of thousands of people, which were created by immigrants during the last century, that argument does not, and should not, go down with people looking at their immediate circumstances.
Therefore, there are limits to the extent to which we can at present vary to a considerable degree our general view of the possibilities which are open in this country to asylum seekers or to immigrants. However, one hopes for a better and more realistic appraisal of the problem before we find a better solution. What we can do—and it is the lesson in the speeches made by the noble and learned Lords, Lord Ackner and Lord Donaldson—is to ensure that in the course of tackling the problem we do not retreat from the ordinary principles of British justice and of the British legal system. We should not say, "There is a particular class of case in which the right of appeal is withdrawn." Either it is a right or it is not a right.
Similarly, in regard to the issues relating to children, if we pass a Children Act because we believe that children have special needs and rights, ought not any Bill henceforth, including a Bill dealing with asylum and immigration, to take note of the fact that Parliament has decided that children are a special case?
I do not believe that we shall change the world by what we do. I cannot agree with the noble Lord, Lord Bonham-Carter, that enormous changes can be made by somehow pushing the responsibility on to Europe. Each country is so different as are the problems that they confront, the psychology of the people and so forth. Therefore, each country must take the responsibility for doing the best that it can for the people for whom it is a natural recourse. Given those aspects it is probable that we can improve the Bill while recognising that it is by no means the end of the story, as did the noble Lord, Lord McIntosh of Haringey.
§ 6.7 p.m.
§ Baroness David
My Lords, I intend to confine myself to two aspects of this ungenerous Bill; namely, its effect on children, in particular unaccompanied children, and on students. I shall deal first with students. Clauses 10 and 11 of the new Bill contain completely new provisions restricting the rights of would-be visitors, short-term students and their dependants to appeal against a refusal of leave to enter or of entry clearance. There is no rational justification for that proposal. The removal of a right of appeal against an administrative decision, thus giving 1181 unfettered powers to civil servants or immigration officers, can only lead to worse decision making because they know that the decision will not be reviewed by any independent authority.
There is ample evidence of that in the immigration field. For instance, when the Immigration Act 1988 removed from people who had been in the United Kingdom for less than seven years the right of appeal against deportation for any reason other than the facts of the case, the number of deportations shot up from 863 in 1987 to 3,440 in 1991. Many young people want to finish their education in the UK perhaps in order to take courses not available in their own country. The qualifications that they gain will not only benefit them as individuals but will increase the pool of skills available in their own country. Time spent enjoyably in the UK when they are young will encourage contacts between the two countries in the future, in particular in respect of trade. The provision means that fewer overseas students will be able to come to the UK. Others enter as prospective students in order to attend interviews or to settle their final choice of course because some colleges will not offer definite places to students before interviewing them. I hope that the Minister will respond positively to their case.
Clause 7 ensures that there is no right of appeal against curtailment of leave on some other basis if an asylum application is refused. Thus, a student who might have applied in panic after a coup or change of government in his own country whose application is refused and whose leave to remain as a student is curtailed, will have no right of appeal on grounds of continuing to be a student. It is unjust that people should have no chance of explaining why they should be able to continue their stay on its original basis.
Curtailment of leave to remain may well deter people such as overseas students from applying for asylum, even though their home circumstances may have changed to the extent of making it dangerous for them to return home. That deterrent effect remains in spite of the Government's assurance in Committee in another place that leave to remain will not necessarily be curtailed following refusal of an asylum claim. The noble Earl, Lord Ferrers, referred to that in his opening speech. However, if that is so, why was the amendment proposed by Sir Timothy Raison, a former immigration Minister, that the curtailment provisions should not apply to students on recognised courses, not accepted by the Government? We shall try for that again here.
The Churches Refugee Network with its large and very wide membership says in its excellent briefing that it fears that Clauses 10 and 11 will be particularly damaging. Visitors and students from abroad who come into contact with the immigration services are mainly people from Africa, Asia and the Caribbean. Therefore, there could be a great danger that those clauses will appear to be blatant discrimination against black people with alarming consequences for community relations in this country.
It is important to point out that the UK Immigrants Advisory Service's success rate for student appeals in 1987–88 was 31 per cent., in 1988–89 it was 56 per cent., in 1990 it was 27 per cent., and in 1182 1991 it was 21 per cent. That surely proves that there would be miscarriages of justice if the right of appeal were removed. I hope that the Home Secretary's excuse that those appeals would clog-up the appeals system will not be accepted. Some extra resources to the appellate authorities and to the agencies dealing with advice and representatives in matters of immigration could rectify that.
I turn to the position of children. The Bill does not address the particular situation of children who apply for asylum in their own right, but it has serious implications for the children of asylum applicants. I agree with all that the noble Lord, Lord Bonham-Carter, said about that. Unaccompanied refugee children who apply for asylum are treated in the same manner as adults. No special provisions are made for the determination of their cases and the UNHCR's guidelines on that subject are not applied in the United Kingdom.
Those unaccompanied children are without the support of an adult who is legally responsible for them. Some are accommodated by local authorities which do not have parental responsibility and may have no expertise on asylum issues. Others live in the community with compatriot families who are themselves dealing with the difficulties of refugee life. They may be completely unaware of services that are available for children. Others are being cared for by older siblings who are barely grown up and who are struggling to keep the family together, often with no support.
The Children's Legal Centre proposes that an advocacy system should be established so that each unaccompanied child will have a person whose duty, as defined under statute, will be to ensure the child's welfare in both the asylum procedure and in relation to statutory services and—this is very important—to ensure that the child's views and feelings are taken into account. I support that and I am glad that that has received support from other noble Lords who have spoken.
The introduction of new immigration rules setting out negative criteria whereby an asylum application may be refused and the limited time available to lodge an appeal against refusal, increases the need for child asylum-seekers to be helped with their applications. The guidelines on unaccompanied children contained in the UNHCR handbook on procedure and criteria for determining refugee status under the 1951 UN Convention on Refugees should be implemented. Are the Government prepared to do that?
There are a number of particular anxieties with regard to children in several clauses. First, as regards fingerprinting, the Bill provides that both the dependants of applicants and unaccompanied children will be fingerprinted. They can be arrested without a warrant for failure to comply with that requirement. The Government have not declared whether there will be any lower age limit on fingerprinting. No evidence has been presented that children have been involved in any multiple applications. The implications of criminality are inescapable. Children may previously have had experience of fingerprinting as a prelude to torture and interrogation. Their feelings of fear can be 1183 imagined. In Committee in another place the Government agreed to an amendment to provide for the presence of an adult when a child under the age of 16 is fingerprinted. However, there is no requirement that that person should be known to the child or what kind of person would be suitable to give the child the support, confidence and understanding that is needed.
The housing clauses—Clauses 4 and 5—could mean that refugee children and their families are on the street before a local authority has a duty to house them. The time spent in poor quality bed and breakfast will be extended. The effect of that kind of accommodation on the child's health and education is very well documented.
As regards the appeal clauses—Clauses 8 and 9—unlike the Children Act, which in Section 1(1) makes the best interests of the child paramount, there is no formal consideration under immigration rules of the effect of any ruling on children's welfare. However, the function of the special adjudicator is subject to judicial review by the High Court which is bound by Section 1(1), as is the Court of Appeal. Therefore, it follows that the special adjudicator and immigration appeals tribunals should also be subject to the application of Section 1(1).
Article III of the United Nations Convention on the Rights of the Child also states that:In all matters affecting a child … the best interests of a child shall be a primary consideration".The Bill appears to ignore that and should certainly be amended to deal with that problem.
As regards carrier liability in Clause 11, children have been prevented from disembarking and claiming asylum and have been returned by airlines to avoid the fine. The Bill places an additional requirement on transit passengers to obtain a visa solely for the purpose of passing through the UK. It is often dangerous and impossible for many refugees, let alone children, to obtain adequate travel documents. Thus, refugee children can be prevented from claiming asylum (their rights under the Geneva Convention) either in the United Kingdom or in another country to which they are travelling.
I shall end with a quotation from an EC Select Committee report on community policy on migration. I was a member of that committee. It said on unaccompanied minors:Although not a large problem in terms of numbers, it causes great distress for the children involved, for whose welfare we are concerned. The proposal for reception centres appears a possible contribution to addressing the problems encountered in all Member States".It goes on:We recognise that there are considerable resource costs involved in a humane and adequate immigration policy, particularly at the point of reception and that these may be particularly high in the case of unaccompanied children. But the manner of first reception is so crucial to the image which strangers form of a country and the Community that we believe that these costs are unavoidable for a country which respects and wishes to be seen to respect human rights".I hope that the Government will take note of those points made by the committee.
§ 6.19 p.m.
§ Lord Monson
My Lords, although criticism from the Labour Front Bench is significantly more muted than it was last time round, before the General Election, nevertheless the Government are taking quite a lot of flak today. However the Government are in a difficult position, as would be any government in the circumstances of the 1990s. One wonders whether the Opposition parties would be taking quite the same line if they were in power. I rather suspect not.
In April 1977, having recently returned from a trip to Thailand where I had been moved, after witnessing accidentally the plight of Vietnamese boat people huddled behind barbed wire in an internment camp outside Songkhla in Southern Thailand, I asked, in an oral Question, whether the government of the day would consider admitting 750 south east Asian refugees, as an addition to the score or two who were already in this country. The Government were distinctly unenthusiastic. Indeed, the answer was a flat "no". In fairness, it must be said that there was no more enthusiasm shown by the then Opposition parties either.
Ironically, it was Mrs. Margaret Thatcher, as she then was, who in 1981 or 1982, after there had been massive harrowing media coverage of the plight of the Vietnamese boat people, agreed to admit 20 times the number that the then Labour Government had turned down four or five years earlier. This merely proves that parties in power often behave differently from what they may suggest they will do when in opposition.
In these matters it is often a question of choosing between the lesser of two evils, of striking the right balance between the heart, as epitomised by the noble Lord, Lord Mishcon, and the head. Thinking of recent events, it is a question of deciding on the one hand to what extent to react to spasms of short-term sympathy —often highly selective sympathy, depending on whether or not a press photographer has been around to record the agony of a sobbing child or a distraught mother—and on the other hand of evaluating coolly the long-term interests of the British people, as well as paying proper democratic attention to the wishes of the British people as a whole in these matters, which was so cavalierly dismissed by the Government, and far more so by the Opposition, in the 1950s and early 1960s.
There are five developments which those who framed the 1951 United Nations convention could not have dreamed of at the time: the noble Lord, Lord Mackay, alluded to one or two of them. Those who drafted the convention would have found it hard to believe that a generation later hundreds of millions of people throughout the world would still be living under varying degrees of tyranny—the entire population of China and of Tibet is a case in point —to the extent that they could all legitimately claim that they had well-founded fears of being persecuted; secondly, that the world population would have more than doubled from 2.6 to 5.6 billion, with the populations of East Africa, West Africa and Central America having more than trebled in the period, with South America coming up fast behind, as its 1185 population will have trebled by 1995 at the latest; thirdly, that the standard of living in many already poor countries and regions, mainly but not exclusively in Africa, would fall to very much lower levels after decolonisation because of over-population, mistaken political ideologies and maladministration; fourthly, that there would be a revolution in telecommunications technology which would allow almost every town and village in the poorer countries to have access to a television set from which townspeople and villagers would get the overwhelming impression that the streets of the Western world were paved with gold; and fifthly, that a similar technological revolution in the field of aviation would slash the cost of long-distance air travel in real terms. It is now possible to cross the Atlantic and return for well under £15 in 1951 money.
If those factors are added together the situation is volatile, to say the least. That is why Bills such as this one are necessary. Indeed, setting aside for now the problem of the wholly bogus asylum-seekers, one wonders whether the definition of persecution itself needs to be tightened up, and whether the 1951 convention is not in some respects slightly outmoded and should be redrafted to confine the definition of the persecuted to those who are really seriously at risk. We can all agree that people who risk being murdered, tortured or unjustly sent to prison for a long period should be given asylum, but what about milder forms of persecution?
Many groups of people are, quite unfairly, not allowed to have their children educated in their own language, such as the Kurds in Turkey, or the Hungarian speakers and the small number of German speakers in Romanian Transylvania. These people would be quite entitled to claim that in consequence they are being persecuted, and in a sense they are, but is that a good enough reason for western Europe, North America and Australia to have an open-ended commitment to admit every one of them, bearing in mind in particular that those who arrive are not necessarily always the most deserving? It is much easier to escape from mild tyrannies than from really brutal tyrannies, and those who arrive on our shores are often the richer, more astute people, and not necessarily the most deserving, who might be poorer and less worldly wise. That is for the future of course—this Bill does not concern that matter—but one cannot leave the problem too long before it is addressed.
Far more worrying, and what the Bill is directed at, is the problem of what might be described as purely economic migrants who disguise themselves as asylum-seekers. Some of your Lordships may have seen a riveting programme, the first of a series on Europe, presented by Francine Stock about a fortnight ago. One horrifying scene that sticks in the memory showed a beach in southern Spain near Tarifa littered with the bodies of young men, economic migrants not only from North Africa but as far south as Senegal, who had drowned while trying to enter western Europe illegally. Significantly, they were not the emaciated bodies of starving people but were well-muscled and obviously adequately fed: the 1186 extended family system ensures that people do not starve in Africa except in the most drought-stricken regions. They were also well educated, which did not surprise me. I had toured Morocco in 1984 in local buses and trains and spoken to many people, and had been astonished to learn that graduate unemployment was as high as 90 per cent: I cannot imagine what the level of unemployment among less well qualified people was. The interview with the survivors in detention in Spain revealed that they were well educated, and nearly all of them spoke good French.
It was striking that almost all survivors claimed an unqualified moral right to come to Europe in search of work and accommodation. In justice, they were not claiming the right to unemployment benefit, but they did claim the absolute right to come and search for work and the right to be housed, whether Europeans wanted them or not. If one genuinely believes one has just such a moral right, clearly one will feel totally morally justified in lying, exaggerating and using every form of subterfuge in order to achieve one's objectives. I think most of us would do the same in similar circumstances. Hence the need for laws such as this.
Certain organisations, for example the Society of Friends, claim that this Bill infringes human rights. If those trying to enter were British subjects by birth or by naturalisation, there might be some merit in the claims, but they are not. I do not think there is anywhere in the world where aliens have exactly the same rights as citizens. For example, if any of us went to the United States, Japan, Egypt or Brazil and were refused admission, we would be extremely angry and annoyed, particularly if we had paid our own fares, but setting aside the special case of the EC we would not think that we had a God-given right to enter anybody else's country. They have the right to refuse us for the most capricious reasons, which is undesirable and annoying, but we do not have an absolute unqualified right of entry.
Finally, switching briefly from the general to the specific, I think the fuss over fingerprinting is without foundation. I say that even though many libertarian colleagues of mine strongly disagree. In my opinion, they have not thought the matter through thoroughly.
Unlike photographs which can easily be doctored, and unlike DNA testing which is by no means 100 per cent. perfect we now read, I have always been brought up to understand that fingerprinting cannot lie. In the free countries of western Europe only those contemplating a life of crime could reasonably object to being fingerprinted. I would happily put mine on file tomorrow, for what it is worth.
In the United States students and other young people who hire cars often have to have their fingerprints taken before they hire the car. They are then returned to them when the car is returned safely and can be destroyed. Nobody worries about this procedure very much. Therefore, unless someone can prove that one's normal assumptions about fingerprinting are wrong and that prints can be tampered with by the police or security services, I believe that the issue is a red herring and the clause should remain unaltered.
1187 I am sure that the British people support the broad aims of the Bill. I do not know, like the noble Lord, Lord Reay, whether the Government and the other place, who have given it much attention, have got it 100 per cent. right but I am convinced that they have got it at least 98 per cent. right, and I congratulate the Government on bringing the Bill forward.
§ 6.31 p.m.
§ Baroness Faithfull
My Lords, I must apologise to the Minister and your Lordships' House because I may not be able to remain in my place until the end of the debate. Some friends of mine are flying in from America this evening; I arranged to meet them.
Four noble Lords and one noble and learned Lord have spoken about children. The noble Baroness, Lady David, made clear the feelings of those of us who are involved in work with children and with children's societies. As the noble Baroness said, both the Children's Legal Centre and the Children's Society recommend that there should be a panel of advisers who can speak the languages spoken by children coming to this country.
I speak from a personal point of view. I have had to deal with children who have arrived in this country unaccompanied. In such cases the child is put on a plane, perhaps by the mother who knows that the father has been killed and that she is being sought. She asks someone on the plane to keep an eye on the child and they do so. The child lands at London airport and those people leave the plane with the child. At immigration the couple say goodbye to the child, thinking that someone will meet it. When the child reaches the immigration desk, the immigration officers find themselves in a difficult position because there may be a crowd of people.
The noble and learned Lord, Lord Brightman and I visited London airport and spoke to immigration officers. They told us how difficult it is to deal with an unaccompanied child who is unable to speak English and is miserable, lonely and distressed. All that can be done is to have the child taken to a little room adjoining the immigration offices and to telephone the social services asking them to come and meet the child.
The social worker who is called to London airport to take care of such a child has a problem. The child cannot speak English and the social worker does not speak the child's language or may not even know what that language is at that stage. Nor does the social worker know what food the child likes. On one occasion I gave a child a bar of Cadbury's milk chocolate. The child took one bite and spat it out saying, "Ugh!" I did not know that he did not like chocolate; he did not know that I was offering him something which was good to eat. If it was possible to call on someone who could speak the language spoken by that child —and usually the child can say where it comes from—one would be able to communicate with the child. One might also be able to place the child in a foster home with someone who comes from its own country.
I cannot say how difficult that situation is and how distressing it is for the child. Furthermore, it is very 1188 distressing for the children's home to which one takes the child. The people at the home cannot speak to the child. They do not know how to feed it or clothe it. I know of one case in which a child would not sleep on the bed because she had never slept on a bed but always slept on the floor. The other children said, "Isn't it funny, that little black girl won't sleep on her bed?"
I know that those are anecdotal stories. However, I press the Government to think again about the proposal for a panel to be appointed by the Secretary of State put forward by the British Refugee Council. That would be of enormous value but would not be costly in view of the fact that there are few cases of children in those circumstances.
I ask my noble friend the Minister whether, in the drafting of the Bill, account has been taken of Section 1 of the Children Act whereby the welfare of the child is paramount. That was mentioned by the noble Baroness, Lady David. In the present circumstances, the welfare of the child is not paramount. Furthermore, under that Act the views of the child must be taken into account. If one cannot communicate with the child, how can its views be taken into account? In one case, I subsequently found that a child wanted to go back to his country of origin; but how was I to know, if I could not speak his language?
There is also the question of the responsibility of parents, which is also covered in the Act. Every social worker will try to find who the parents are, where they are, and whether it is possible to reunite the child with them or, if that is not possible, with relatives. Therefore, I suggest that this Bill contravenes the Children Act 1989 of which we are so proud.
I should like to mention housing. At the time of Idi Amin this country was flooded with refugees from Kenya. The government of the day arranged for every local authority to take a certain number of refugees and find them accommodation. Without meaning any disrespect or to make accusations, I should mention that there was great resentment on the part of a number of people who had been on the housing list for years and perhaps had three or four children who would have found themselves supplanted in order for a family coming to this country to be given accommodation. It was recognised that those families must be housed.
I was made responsible for housing 15 such families in my area. We did not give them council accommodation or bed-and-breakfast accommodation. We raised the money to buy a house for a family. We then mortgaged that house and were able to house two families. In the end, we mortgaged 15 houses. Ultimately the families found work and were able to pay for the accommodation.
The housing issue may lead to real difficulties for refugees coming to this country, particularly if they are given accommodation from the housing list thus pushing a number of people—who may themselves be from ethnic groups—down the list. Therefore, we have to be careful to ensure that we do not displace people 1189 in this country; and, secondly, that we house refugees. There are ways of doing that, and that was done when refugees came to this country from Uganda.
I urge my noble friend the Minister to think very seriously about how children are dealt with, and to rethink the position regarding housing.
§ 6.39 p.m.
§ Baroness Mallalieu
My Lords, the noble Earl, with his reasonable and convincing tones, is frequently called upon to place before your Lordships' House provisions which are intrinsically flawed. He does it so well. But there are parts of this uncharitable and unimaginative Bill which lie beyond even his powers of advocacy to commend to this House.
Of course, the scale of refugees worldwide is now such that on all sides of this House the need for some controls is recognised where people seek asylum. The advocates of the open door are very hard to find. Huguenot families such as the one from which I come would have found things very much more difficult if the Edict of Nantes had been repealed in the 1990s. I doubt whether any voice would have been found in this House to oppose legislation which did no more than try to curb misuse of our asylum and immigration processes by people who are fraudulent refugees, fraudulent students or fraudulent visitors. Yet the Government have managed to produce a piece of legislation which has drawn criticisms from, among many others, organisations which range from Amnesty International, Shelter, the Catholic Bishops Conference, the Refugee Council, law centres, the Council for Churches for Britain and Ireland, the United Kingdom Immigrants Advisory Service, Save the Children and even the Royal College of Nursing. That is a not inconsiderable achievement.
The Government have placed before your Lordships' House the second generation of a Bill to which there have been relatively minor concessions made since the original reared its head, not I think coincidentally, before the 1992 election. Unfortunately, this child has most of the unsavoury characteristics which rendered its parent objectionable.
Reading through the Bill, it is unfortunately not possible to agree with the Minister in his description of it as a measure which seeks to tackle only the bogus and fraudulent while enshrining satisfactory safeguards for the genuine refugee visitor or student. It is a measure which, very simply stripped of the cosmetics, apparently seeks to keep out as many people as possible.
The casualties of this piece of unsatisfactory legislation will be many. Let us take a few examples. Nurses from outside this country come here to study on adaption courses which usually last under six months. There would be a consequent loss to this country of a wealth of overseas experience and to their home countries of additional knowledge and experience from our health service. There are those who are fleeing from civil war and danger in such places as Bosnia or Angola whose claims for asylum would not fit the grounds listed in the convention and who, it seems, may no longer be granted by the Home 1190 Office exceptional leave to remain. There are students, part way through a course in this country, who, because of changed circumstances in their home country, make an asylum application, rendering themselves liable to deportation in the middle of their studies if that application is refused. The noble Baroness, Lady David, referred to that. There are children of British citizens but themselves foreign nationals who are refused entry here by a single entry clearance officer. That officer, however fair-minded, is not likely to be an infallible individual. Such persons would not now have any right of appeal.
Not surprisingly, many noble Lords from all sides of the House have spoken in the debate. Many have yet to speak; many have specialist knowledge. For that reason, I confine my specific criticisms of the Bill to a very few of the more objectionable features which strike me, as a practising lawyer. The Bill will apply, among others, to unaccompanied children, to men and women who speak little or no English and to those who have recently suffered severe traumas. In other words it will apply to those about whom the noble Lord, Lord Mishcon, spoke so movingly.
In common sense and fairness it is essential that legal aid and legal representation for advice and assistance, initially, continue; that representation is extended, at appeal if necessary; and that those provisions should be enshrined within the Bill. The Planning Group of the Refugee Legal Centre, appointed by the Home Office, make the point forcefully in proposals published last October for the functions of the new refugee legal centre office. It is argued that legal representation at an early stage is not only right in principle but is the most effective use of resources. A well presented application by an experienced practitioner is likely to produce solid, first instance, decisions, and so avoid the time and expense involved in unnecessary appeals.
The provisions in relation to appeals have requirements which are of some complexity and of a technical nature. They are full of pitfalls and difficulties for the genuine refugee. In the light of the way in which legal advice is being withdrawn in certain areas, it is surely crucial that the Bill provide that those who will need that advice in the future shall have it.
I wish to support what has been stated by many noble Lords, in particular by the noble Baronesses, Lady Faithfull and Lady David, about the essential need for children to have an independent advocate or representative who can assist them from the time that they arrive unaccompanied in this country.
The fingerprint provisions—hitherto the exclusive province of the criminal law in England—are, I understand from what the Minister told us, intended to prevent multiple applications and benefit frauds. However, I understand that multiple applications were effectively dealt with as long ago as November, 1991, through the provision of immediate screening interviews and a new secure identification form. The noble Earl has not given figures that enable us to judge the impact of those changes in relation to multiple applications. However, unless it is proposed to 1191 fingerprint those from overseas who apply for benefit also, it is hard to see how the prints on file with the Home Office could be used to prevent benefit fraud.
The practical use of those provisions seems negligible. The objections are many and the implications are worrying. The Bill provides no lower age limit in relation to the fingerprinting of children. That seems to run counter not only to decency but also to the spirit of the United Nations Convention on the Rights of the Child which requires states to act positively towards vulnerable refugee children.
Whoever drafted the appeal time limits cannot have been someone with experience at the sharp end of immigration appeals. The 48-hour rule for those who apply at the port, and 10 days in other circumstances, will effectively render it impossible for many to use the right which the Bill purports to give. To obtain a legal visit to see a detainee may take many days or even weeks. It currently takes over two weeks in the case of Pentonville where many of those detained are currently held. The period is not unusual. Language difficulties and the need for interpreters add to delay. Documents and evidence will often need to be obtained from overseas. That is all at a time when an applicant is likely to be frightened and distressed, in many cases having fled from his or her home in real fear of his or her life. Of course I welcome the right of appeal given by Clause 8 of the Bill. However, as the noble and learned Lord, Lord Ackner, said, it is of very little use if those entitled to that right cannot hope to meet the provisions. I hope and trust that that was not the draftsman's or the Government's intention. I hope that the provision can be corrected in Committee.
It is impossible to find anything good to say about Clause 10. Frankly, it is extraordinary. It withdraws any right of appeal from many visitors and students to this country. The Government have given their reason for the provision as the clogging up of the present system with visitors' appeals, a substantial proportion of which, I observe, now succeed. What a precedent!—And not one, as the noble and learned Lord, Lord Donaldson of Lymington, indicated that he had thought of as Master of the Rolls. Let us hope that it is not one which occurs to the noble and learned Lord the Lord Chancellor because the Court of Criminal Appeal is currently clogged up too. There are long delays in the hearing of appeals because of a shortage of High Court judges. This Government have not, as yet, suggested that the solution there is to remove any right of appeal from those convicted of crime, but with provisions like the one in Clause 10, who can tell what we may be in for?
If the system is clogged up with appeals, many of which have merit, surely the proper course is to provide sufficient resources to deal with those appeals or to streamline the process effectively and not to remove the right of appeal from many of those who have good grounds.
Time and again in this Parliament and in its predecessor we have seen legislation introduced in the House by the Government in response to some perceived public demand which is ill-conceived in its 1192 philosophy and inappropriate in its application. Sometimes, when it has been bitterly fought through both Houses of Parliament and reaches the statute book, it has proved to be unworkable and has had to be scrapped, at goodness knows what public expense. Sometimes, the resulting legislation which we were told in this House —and, more often than not, by the Minister—was urgent and necessary for the maintenance of law and order, lies unused, or virtually unused, on the statute book. We can think of many measures ranging from war crimes to dangerous dogs and aggravated vehicle taking.
This piece of legislation, if passed in its present form, is likely to cause real hardship and injustice as voices from all sides of the House have testified today. The time is surely ripe for a government with vision to take an initiative in the field of refugees and to turn to international co-operation. I do not believe that the people of this country want to see genuine refugees, genuine students and genuine visitors turned away. I wish that I were confident that that was not the Government's intention but merely an unfortunate by-product of this unsatisfactory draft legislation. As the Bill passes through the House and we see what changes the Government are prepared to make to it, so we shall see whether or not my fears are justified.
§ 6.52 p.m.
§ Lord Woolf
My Lords, when I made my maiden speech last week, I did not anticipate addressing your Lordships again so quickly. I am conscious that perhaps it is "unmaidenlike" and precocious to do so. However, last week I was not aware—and perhaps I should have been—that this Bill would come before your Lordships' House today for its Second Reading. As a result of my experience both at the Bar and on the bench, I thought that it was possible that I might be able to make a useful contribution.
As to the Bar, I should perhaps explain that during my last five years at the Bar, I had not the same role as the noble Earl but a similar one, to the extent that one of my tasks as Treasury junior was to defend the Home Office before the courts. I am afraid that I did not perform that task with the same elegance or indeed the same success as the noble Earl, but I sometimes found it uncomfortable having to do so.
I was also not unfamiliar with immigration issues when I went on to the bench because I was one of the judges who initially had to deal with judicial review applications. Since that procedure has developed, the major portion of the work has been affected by the demands which immigrant cases have placed upon the courts. Still today, the majority of cases coming before the courts can be described as immigrant cases.
Nonetheless, if I had appreciated that I was to have—if I may so describe them—two noble and learned Lords as leaders, I should not have put my name down to address your Lordships' House. Anyone who has had experience in the Judicial Committee knows that it is unwise for a junior to follow leaders of such eloquence unless perhaps he can provide factual information. That is what I shall try to do.
The position is that, as your Lordships have heard, Clause 10 proposes to take away a right of appeal 1193 which has existed for at least 21 years. I take the figure of 21 years because it is the figure which one arrives at if one takes as a starting point the Immigration Act 1971, albeit that there were rights of appeal before that Act came into force.
It is quite remarkable that the right of appeal which is at present available to visitors should be so regularly used, bearing in mind—as the noble and learned Lord, Lord Donaldson, indicated—that one has to leave the country before one can exercise that right. The explanation is that the visitors who exercise that right are not normal visitors who come here because they wish to enjoy the splendours which the ordinary tourist enjoys. They are visitors who are anxious to renew their connections with families from whom they have been separated for long periods of time. If they are not able to make a visit to this country, it often means that they are deprived of the opportunity of meeting again, before he or she dies, some grandparent, or meeting again some child who does not have the resources to return to the country from which the child originally arrived in this country.
That is why, notwithstanding the fact that these people are only visitors, they exercise this limited right of appeal. Even though it is a limited right of appeal, as noble Lords have heard, the number of appeals which are successful is disturbing. One in five is the information which was made available to me. We should bear in mind that those appeals are dealt with without the appellant being able to give evidence before the adjudicator who will consider his appeal. The appellant has to rely on putting his case on paper and thus I suggest that the number of appeals which are being allowed is doubly disturbing.
Normally, where there is a satisfactory appeal procedure, the courts will not become involved in judicial review of matters of this nature. However, in relation to the appeals where there has been some defect in the process, the courts have accepted that they should become involved. The reason for that is that the courts have recognised and accepted that for a visitor of the kind I have been describing to be wrongfully deprived of his opportunity to come to this country is a deprivation of his rights which is wholly inappropriate. It is not only a deprivation of his rights but a deprivation of the rights of people who are settled in this country because the visits are being made to those who are settled. They are the sponsors, the persons who seek that they should be visited in this way. The courts have been conscious of that fact.
Bearing in mind what I have just said, I should have thought that this was a matter which required careful consideration before the existing limited right of appeal was interfered with. I therefore communicated with the President of the Immigration Appeal Tribunal to ask him whether he had been approached as to whether there was any alternative procedure which would avoid that draconian step being taken. He assured me and authorised me to tell your Lordships that his advice and the advice of the chairmen of the Immigration Appeal Tribunal had not been sought, and that had their advice been sought, they would have recommended taking some different course. They would have recommended it because 1194 they also are impressed by the number of appeals which are being allowed at the present time. In the words of the president of the tribunal, it should be possible to devise other methods of speeding-up and dealing with the unfortunate backlog which at present exists. My noble and learned friend Lord Ackner suggested one alternative. Obviously there are other alternatives.
It is right to say that the immigration appeal structure is a creaking structure. It is complex. It is drawn out. But the whole of that procedure needs examination. What is not required is the removal of what has become an entrenched right of appeal unless there is no alternative and, indeed, the removal of that right is justified.
There is, however, another disadvantage in the proposal contained in the Bill and that is its effect upon the present state of the applications for judicial review in the High Court. Reference has already been made by the noble and learned Lord, Lord Donaldson, with regard to the problems which exist there.
I recently gave a lecture on this subject. I hope that I did not overstate the position when I described it as being in a state of crisis—a state of crisis because applications for judicial review are extremely important. Unless they are dealt with expeditiously, the citizen can suffer, and so can the public, from unlawful action which requires rectifying. Other noble Lords have also spoken on the matter. Noble Lords were reminded that this is a subject on which the noble and learned Lord the Lord Chief Justice addressed your Lordships. He authorised me to say that he would have wished to be here this evening to put his concerns about Clause 10 to your Lordships in person. Unfortunately, because of other public duties, he is not able to be here. However, his view is the same as mine: that it is the inevitable consequence of the present proposals contained in Clause 10 that, if enacted in their present form, they will lead to a substantial increase in the number of applications for judicial review.
The proposal that I made in my lecture to deal with the problems of judicial review included, in relation to immigration cases, extending the powers of the immigration adjudicators and immigration tribunals. It was my suggestion that such matters were more appropriately dealt with before those expert bodies, at least in the first place, and that that was a sensible way of relieving the burden on the High Court. I certainly would not have suggested that the right to apply to the High Court should be removed if there was no suitable alternative. I fear that what is being proposed here is just that.
I fully accept that the civil servants who have the difficult task of administering this legislation try to do their best. But it is very difficult legislation to apply in this particular situation. One needs only to see what the appeal figures at present indicate to know how fallible it is. It cannot be right that the actions now performed by adjudicators should instead be performed by High Court judges. The cost would be greater and the consequences to the administration of 1195 justice in this country could be serious. In those circumstances I would ask the noble Earl two questions.
First, I read from the information available in connection with the Bill that it was anticipated that the changes will lead to a saving of about £1 million to the two government departments concerned. Does that take into account the costs of the applications for judicial review, the costs of the employment of judges to deal with those applications and the legal aid which will have to be given to those who make the applications?
My second question is: has the noble Earl consulted the Lord Chancellor about the appointment of the additional judges that will be necessary to deal with those additional applications? I suspect that if the noble Earl and the Government have consulted the Lord Chancellor, he will have indicated that it will lead to an increase in applications for judicial review. It is inevitable. I also suspect that if he has consulted the Lord Chancellor he will have been told that that increase in the demands on judicial review at the present time is undesirable.
He may also have indicated—as he indicated in response to the requests made publicly by the Lord Chief Justice that additional judges should be appointed—that at the present time he does not have the resources to appoint those additional judges. I ask the noble Earl to answer those questions and perhaps give further consideration to the issues to which I have made reference when the future of the Bill is considered.
§ 7.7 p.m.
§ Baroness Perry of Southwark
My Lords, although no learned lawyer, I too would wish to lodge an appeal to my noble friend on behalf of those short-term and prospective students who will be affected by Clause 10. But I would like first to join others who have spoken to welcome this Bill and its proposals to speed up the procedures for those who have a legitimate claim to come to this country, whether as immigrants or as refugees.
The present system is not working. Perhaps before rushing to criticise the new proposals we should recognise how much distress and hardship are caused to many people. I have staff and students in my own institution who are caught in the lengthy process of application at the present time and who are waiting, sometimes for years, before getting any response to their request for refugee status.
It seems to me most strange that we in this country are quick to publicise the very tragic times when the system breaks down, and all too slow to recognise that we still have internationally a reputation for being one of the most welcoming and generous countries in any time of international crisis.
Others have referred to the period after the Second World War. I grew up in a family during the Second World War. I had a temporary sister for many years who was a German Jewish refugee, accepted by my parents along with many thousands of other British families like themselves, in the time when refugees 1196 were escaping from the horrors of Hitler and the concentration camps. Throughout our history and particularly in recent history, we as a country have been quick to respond. I understand that even now there are over 8,000 Bosnian refugees in this city alone. Let us therefore occasionally applaud the generosity and the good things that our country does while criticising the times it goes wrong.
I would like now to deal with one very specific aspect of Clause 10; namely, that which deals with the overseas students and the difficulties that I believe they will encounter as a result of these provisions, which take away from them their right to appeal against the decisions which can be made, sometimes in quite arbitrary fashion, on the part of entry clearance officers and immigration officers.
I wonder whether there is some feeling behind Clause 10 that short-term students who come here for less than six months are in some way not serious students and therefore do not really matter. That is simply not true. In the majority of cases they are here to follow three or four-month courses in the English language before proceeding to apply for quite substantial further or higher education courses. The majority of such short-term students are EC nationals with an automatic right of entry. But in recent years a significant and increasing proportion of short-term students have come from eastern Europe, central and southern America, Asia and Africa and have no automatic right of entry. They now face the possibility of being refused entry after being questioned at the port of entry, perhaps due to a misunderstanding arising from the language difficulty.
Others have referred to the large number of appeals which are currently successful against refusals of entry clearance. There is no doubt that a large number in the future could be refused, and without any right of appeal may have enormous difficulty in coming to this country. I welcome the Statement by the Minister in another place setting out a number of protections for those people who would be refused entry clearance and explaining that they would be entitled to make a further visa application. However, I do not believe that those measures compensate for the removal of their appeal rights or provide adequate safeguards.
It is important to remind ourselves that the British Tourist Authority, in a recent publication called, English Language Course Visitors to the UK 1990, which covered a piece of research on the population of short-term English language students in 1990, calculated that 615,000 language visitors came to the UK during 1990. While they were here they spent a total of £494 million. Around 12 per cent. of those visitors were from outside western Europe and it was found that those people spent more time and money per head than the western Europeans. It was calculated that they contributed around £95 million of the expenditure—19 per cent. of the total. The average length of stay of those students was 47 nights, making them short-term students under the regulations. In addition, a considerable number of them expressed a desire to become long-term students, and preventing 1197 them from entering would thus prevent them from coming here as substantial students over a long period of time.
I have represented British universities in many overseas visits on behalf of the British Council, battling for the business of encouraging governments, ministries of education and overseas companies to send more students to Britain instead of to the United States, Australia or Canada. The battle for the business is now extremely fierce. Other countries see the tremendous value of bringing students from other countries to study. They know that it creates long-term goodwill and natural links in industry and other areas. It would be most unfortunate if all the good work that the Government and the British Council have done in fighting for that business were now to be misplaced. I can promise that one of the things that I and my colleagues have frequently found on such visits is that the one or two bad anecdotes—the stories of somebody wrongly or badly treated—and one or two wrong headlines in the press about British higher education can destroy years of good work and goodwill that has been built up.
I ask my noble friend to look again at that specific aspect of the provision in the Bill. I am confident that he wishes to do what is right and I am sure that ways will be found—various suggestions have been made by noble and learned Lords—as to how that may be done. I beg him to think again and not to destroy what could be an important part of our national life.
§ 7.15 p.m.
§ Lord Ponsonby of Shulbrede
My Lords, I open by apologising that I shall not be able to attend the end of the debate. I am afraid that my duties as a local councillor will call me away.
In the past the Government have adhered to their obligations under the international human rights instruments. It is my hope that those humanitarian principles will continue to be upheld in any future changes to the asylum procedures. However, I am alarmed that the proposals before us will limit the prospects of asylum seekers reaching our shores and reduce the protection afforded to those who do reach our shores.
I believe that there are many reasons why my alarm is well founded. I shall briefly list them: first, the increased fares on airlines bringing in asylum seekers without proper documentation and the extension of the regulations to transit passengers; secondly, the restriction of legal aid to asylum seekers; thirdly, a new fast-track procedure which will give less scope for asylum seekers to put their case properly; fourthly, compulsory fingerprinting of asylum seekers; fifthly, the removal of the duty of local authorities to provide permanent accommodation for asylum seekers and their families; and, finally, the removal of the rights of appeal to visitors and prospective students.
The points that I have briefly listed will be familiar to all those present. However, I hope to illustrate their strength with two examples from my experience as a councillor in the London Borough of Wandsworth. In my work I have seen a number of cases where injustice has been prevented by the present appeals system. 1198 Until recently, Wandsworth had three law centres to represent local residents and their families at immigration appeals. The law centres showed that if people are given good advice at an early stage, only valid cases are put to appeal. Our law centres had a success rate in excess of 90 per cent. at the adjudicator stage.
Only two weeks ago the one remaining law centre in Wandsworth succeeded in an appeal for the son of a resident of Roehampton, the ward I represent. That young man of 22 had been refused leave to enter the country to visit his parents, despite the fact that he had had the right to come and live here up until his 18th birthday and had chosen not to do so, and despite the fact that he ran a viable business in his own country. As I said, his appeal was upheld. It is disgraceful and inconceivable to me that his family would lose their right to appeal, yet under Clause 10 of the Bill that would be the case.
My second example concerns the consequences of the proposed fast-track procedure. The law centre in Wandsworth is presently acting for a man who is a member of an ethnic minority in an African country. Because of his ethnic origin and his father's status as an opponent of the regime in power, he was picked up by the police. He was tortured and fled to Britain. Because of a lack of supporting evidence for his claim, his application for refugee status was refused.
The law centre is now gathering evidence for the appeal. It is taking a long time. They have obtained evidence from the consultant psychiatrist at the local hospital and the Medical Foundation for the Care of Victims of Torture. They have obtained evidence from witnesses in his country of origin to corroborate who he is and his likelihood of persecution. They have obtained evidence from many agencies, including the United Nations Commission for Refugees and Africa Watch to establish that this man's ethnic group is indeed persecuted in his country of origin. To repeat myself, that takes a long time and the fast-track system will inevitably lead to injustices. In that case, that would mean returning the victim to the torturer's dungeon.
I have sought to illustrate my anxiety with two simple and, sadly, common examples. It happens that both my examples concerned people from Africa— they are black. It has been widely commented that proposals contained in the Bill will be racially discriminatory in their effect, and I believe that to be the case.
In conclusion, I remind the Minister (though I am sure he needs no reminding) that development agencies across the world are estimating a massive increase in refugees in the years to come as conflicts multiply in the post-colonial world. Many of those conflicts will arise out of frustrated claims for self determination. In those circumstances, I believe that it behoves the Government and us all to seek a humane and generous response to the refugees who look to our country as a safe haven. I hope that the Government will give more support to multilateral efforts in the resolution of conflicts and be less concerned with the 1199 creation of a British laager in which legitimate refugees are barely tolerated rather than made welcome on our shores.
§ 7.20 p.m.
§ Lord Greenway
My Lords, I should like to concentrate on an aspect of the Bill which has not been touched upon very much this afternoon; that is, Clause 12 that deals with carriers' liability. But first, perhaps I may make a few general comments.
We have heard a good deal this afternoon about trends in immigration and emigration and the fact that more people seem to be on the move now than has been the case over the past few years. The Minister told us that the number of asylum seekers dropped last year. That is very welcome news and perhaps is evidence that the Government's immigration restrictions are having some effect. However, the ever-present threat of serious instability breaking out in eastern Europe may swing those figures upwards again in a very short time. Who can say what the effect will be when the population of the former Soviet Union—who as far as I can see are all continuing in their jobs as though there is still full employment in that country—discover that the inevitable and much-needed economic reforms lead to them being out of work? Those new unemployed will either have to face starvation or seek work in other countries. Whatever happens, the problems facing us in the field of emigration will not go away in a hurry.
I return to Clause 12 of the Bill which extends the liability of airlines and shipping companies under the Immigration (Carriers' Liability) Act 1987 to include the carriage of persons with transit visas. On previous occasions we have discussed at great length the question of carriers' liability and I do not intend now to rehearse many of the arguments I have already put forward. Suffice it to say that the mere fact that the Act is still in force is a matter of great concern to the carriers. Fines are still being levied upon them for transporting to this country persons without proper documentation despite their very best endeavours to prevent it happening. I believe that the fines total over £40 million, of which just over half remain unpaid. Unpaid fines show up as outstanding debts on companies' balance sheets.
Not unnaturally, the carriers would like to clear this matter up as quickly as possible. Is there no way that the Government can extend some kind of olive branch to the carriers and allow them to settle on a certain amount—not necessarily the full amount—and so clear up matters? It would be very nice to do that up to the end of 1992 and so allow the carriers to start with a clean sheet from the beginning of this year. I say "not necessarily the full amount" on purpose because I understand that some of the fines levied on the ferry companies in particular fell in a period when technically in both France and Belgium it was illegal for anyone other than a recognised official to check passports. Surely, it cannot be right for the Government to fine a carrier for an infringement when his staff are technically acting illegally in carrying out 1200 duties that have been imposed upon them under the carriers' liability Act. I believe that certain elements of tidying up can be dealt with here.
I should like to turn to an aspect where some progress has been made. I believe that discussions have taken place between the carriers and the Home Office concerning the issue of a new set of guidelines for immigration officials at ports and airports. These guidelines are expected to allow local officials to use more discretion than hitherto when dealing with cases. Hopefully, it will prevent some of the more ludicrous instances that have occurred from happening again. One has only to cite the favourite example of the noble Lord, Lord Harris of Greenwich. (I am sorry to see that he is not in his place this evening.) I refer to the case of the 16 Nepalese military bandsmen who had gone abroad during their tour of the United Kingdom to play in a concert on the continent. On their return to Dover the ferry company was fined £32,000 despite the fact that the bandsmen had onward tickets to fly home again from Gatwick the following day.
The new guidelines are very welcome so far as the carriers are concerned and are certainly a step in the right direction. That is something for which I have asked before. I wonder whether the noble Earl who is to reply on behalf of the Government can give the House any indication of how matters are proceeding with the issue of the new guidelines and when they may appear.
I have no illusions about being able to amend the Immigration (Carriers' Liability) Act in any way during the passage of the Bill. I am sure that the Government would resist any attempt to do so most strongly. However, I believe that the Government could take a serious look at clearing up in an equitable way the substantial fine problem to which I have alluded. I believe that that would go a long way towards alleviating the inequitable way in which the carriers feel they have been treated over this Bill.
§ 7.26 p.m.
§ Baroness Flather
My Lords, I should like to begin by saying to the Minister how grateful I and many others are that this time round the debate on the Bill has been conducted in an atmosphere of considered calmness. The present Bill has been discussed in a rational and constructive manner with many points being taken on board and properly debated on merit. The attitude of the Government has been positive and helpful, and for this I should like to thank the Minister and, through him, the Secretary of State. It is also helpful that in the present climate there is no longer a necessity to justify the need for the Bill at all. It is widely accepted that some form of legislation is now necessary.
I welcome the provision of the right of appeal for all asylum seekers under the Bill. This was a matter of great concern to the many agencies dealing with the problems of asylum seekers and refugees and to your Lordships who spoke at the Second Reading of the previous Bill in February 1992. However, there is still concern that a small minority may not have sufficient time to lodge an application for an appeal. The noble and learned Lords have already spoken about that. 1201 Bearing in mind the particular difficulties under which a potential asylum seeker may be labouring, two days may be a totally unrealistic time limit. I hope that the Minister can have another look at that point. I am the twentieth speaker so I do not have anything very original to say, but with the noble and learned Lord, Lord Ackner, I should like to emphasise that a right given must be capable of being exercised with ease or else it may not be given at all.
Some matters which have already been mentioned require further consideration. I too believe that we all have a right to be concerned about the blanket fingerprinting provision. There are good objective arguments for introducing fingerprinting for all asylum seekers. There have been some sensational examples of fraud in the past. But is that in itself sufficient reason to depart from long-cherished principles? We have heard what happens elsewhere. It is not a question of what happens in neighbouring countries; it is a question of what we hold dear. The question is whether we want to change the character of our society. It is reassuring to be told that there will be no criminalisation as the fingerprinting will be done by the Immigration Service, but that may be cold comfort to some who have strong personal knowledge of the Immigration Service and may have doubts in that respect.
We must also remember that a great deal of social security fraud is committed by United Kingdom citizens themselves. Do we have any ideas about what we are going to do about them? This is a major departure from accepted practice and we need to balance very carefully the benefits of catching fraudulent complainants against a serious erosion of principle.
I am not going to say anything about children because my noble friend Lady Faithfull and others have dealt with that subject much more eloquently than I could. However, I want briefly to mention the question of housing. It is a matter of regret that even those who are in priority categories will not be entitled to any kind of permanent housing. Of the others I would only say that they should be allowed to join the queue and to remain in the queue until their application is determined. Indeed, if they are allowed the right to stay they could gain the time from remaining in the queue and be there to get their accommodation. If they are not allowed to remain in the queue they will have to start all over again once their application has been determined.
That would not affect the housing list in any way because those people would not be entitled to permanent housing until their application had been determined. All this will mean is that if their application takes two years to determine they will not lose those two years on the waiting list. If they are not allowed the right to stay they will be taken off the list.
One of the most amazing aspects of the Bill is that leave to appeal is to be taken away from short-term students and visitors. I regret that the Bill deals with immigration appeals and asylum appeals together. This has caused confusion to some people. Here again I find myself in the company of those noble and learned Lords who have made such a strong case for 1202 maintaining the appeal system. They have said that what is proposed will increase the number of applications for judicial review. I hope that if this matter is reconsidered it will not be out of fear of too many cases going for judicial review but because of a wish to do the right thing. It is not right to take away the right of appeal.
In any event this proposal gives quite an inordinate amount of power to an entry clearance officer to affect the lives of individuals and their families. To be completely free from scrutiny by higher authority gives an entry clearance officer more freedom and more power to act than any of our judges has. For me the question is not whether there is merit in an application but rather that no single member of the Executive should have such total power to make a decision of this importance secure in the knowledge that there will be no review.
What it may hold for the future is anyone's guess, but those of us who have been dealing with these matters over the years know only too well how rigid some ECOs have become in the application of criteria which they themselves have developed. While I am very glad that in Committee in another place it was accepted that a new application may be made on the basis of a detailed explanation of refusal, I fear that in reality there will be no fresh consideration of such an application and that the previous refusal will taint the new application in the eyes of the entry clearance officer. The only way to make it a genuine second hearing is for the ECO not to have knowledge of the previous refusal. If all those safeguards are applied, one may as well go for an appeal to a higher tier. If I may follow the theme of erosion, this is a further erosion of a fundamental right in a matter which will have serious implications for an individual or his or her family.
At this moment, for all kinds of reasons, Europe is very much on our minds. There is of course a European dimension to asylum policy, as has already been mentioned. The 12 countries of the Community are making some progress towards harmonising their asylum policies through processes such as those which led to the Dublin Convention. In addition, the 12 have agreed to try to bring their national legislation closer together. One detects signs of that in the outcome of the immigration Ministers' meeting of early December. I presume that some of the proposed changes in the asylum rules are a further step in that direction. For me the real issue is the contrast between the open way in which we proceed with our legislation and the secrecy which surrounds the debates of the European proposals. I hope that in the future we can move towards a more open European process as that will provide greater safeguards in the sensitive and important area of human rights.
We are living in an age of great turmoil. Large numbers of people are on the move because of war, persecution, famine or just grinding poverty. Europe is faced with only 12 per cent. of potential refugees or asylum seekers. What will its response be? What will be the United Kingdom's response? I believe that this 1203 will prove to be a major issue of our time and that our society will be judged in the future by how we rise to this challenge now.
§ 7.37 p.m.
§ Lord Pitt of Hampstead
My Lords, I am probably being unfair to the Government but when I read the Bill I feel that it is an exercise in cynicism. The Bill begins by affirming the acceptance of the United Nations convention relating to the status of refugees. It goes on to say that the convention should have priority and that its provisions should prevail over any inconsistent provisions of immigration rules. But having done that the whole tenor of the Bill is to make it as difficult as possible for the people who need to avail themselves of these provisions to do so. For example, they are expected to have proper papers; passports, visas and so on. Someone running for his life may have had a passport but there is certainly no question of his going to get a visa. Not only is it essential to have a visa, but carriers are expected to reject those who do not have one. If carriers do not reject them, they will be fined large sums of money. Secondly, assuming that a person arrives, he is then treated like a criminal. He must have his fingerprints taken. Even for an unaccompanied child, fingerprinting is an essential part of the process. Clause 1 indicates the kind of person with whom we are dealing. It is that kind of person who, having arrived in a traumatised condition, will be treated in this way. We go further. We say that if they are here seeking asylum, their case has to be determined and they are homeless. The local authority cannot re-house them except in temporary accommodation. It does not matter what the accommodation is. If they have temporary accommodation they are no longer a responsibility of the local authority. That means that the local authority has to satisfy itself as to the status of the person and therefore it has to question the person. I hope that the Government recognise the kind of problems that that will create. Nobody is going to ask an obvious Englishman, speaking good cockney English, about his status. If they did he would be angry and there would be real trouble. No local authority is going to do that.
Every time someone of colour becomes homeless the local authority—because it is obliged to decide on the status of a person—will question that person and seek to satisfy itself of that person's status. Therefore, we are legislating for racial discrimination. It is as straightforward as that. We are asking the local authority to do something which will affect people of colour to a much greater extent than white people. Therefore, it is racially discriminatory. I hope that the Government recognise that.
Leaving aside the racial question, the provision introduces for the first time a category of homeless person who should be treated differently from other homeless people. Frankly, and Shelter says so, this is the thin end of the wedge. Perhaps I should not put it as strongly as that. But there is always the fear that having acted that way towards one group, it will be 1204 done with others. Therefore we are undermining the basis of the legislation for the homeless. I hope that the Government will take that matter on board.
I am very grateful to noble and learned Lords for dealing with the question of appeals. It saves my having to go into the matter. I have a kind of midwifery relationship with the appeal machinery because it was set up when my noble friend Lord Campbell of Eskan and I were joint deputy chairmen of the Community Relations Commission. My noble friend Lord Callaghan was then Home Secretary. The appeal machinery was set up because of the large number of complaints that we were receiving about the way in which immigration decisions were being made. It took us some time to convince the Home Office that something needed to be done and that the appeal machinery should be set up. Eventually it saw the point and the machinery was set up. The evidence we now have as to the number of cases in which the decisions of the immigration officers have been overturned by the appeal machinery indicates its importance and value. The judges have given an additional dimension to the matter. I hope that the Government will take all those factors on board.
Perhaps I may put it this way. The Government are worried about the number of people applying for asylum and they are trying to tighten up the procedure. In doing so I get the impression—that is why I began by saying that this legislation is an exercise in cynicism—that what the Government are concerned about is the direct opposite of what they should be concerned about. The Government should be concerned that every person who needs asylum gets it. What they seem to be concerned about is that no person who does not need asylum gets it.
Our attitude to the law is that it is better that some guilty people escape rather than that innocent people are punished. We should be taking the same attitude here. The attitude should be that the one situation we do not want is that a person who has left a place where he would be tortured is in fact sent back to be tortured. All our activities in relation to these matters should be geared to prevent that happening. But the situation is the direct opposite. In the Bill we are making it absolutely certain that nobody who is not entitled to it gets asylum. We are running the real risk that the people who are in danger are sent back to the danger which they left. I cannot believe that that is what the Government want. I hope that there will be some rethinking.
I hope also that the advice which has been given to the Government by noble and learned Lords will be taken and that the Government will not proceed with Clauses 10 and 11, which should be withdrawn. It is obvious that we are going to have a very important Committee stage. I hope that we shall be able to improve the Bill. The essential factor is for the Government themselves to rethink their attitude. I hope that they do so.
§ 7.48 p.m.
§ Viscount Brentford
My Lords, I should like to thank my noble friend Lord Ferrers for his most eloquent and extremely persuasive promotion of the 1205 Bill. Even though he removed quite a number of my doubts, I regret to say that I still have one or two questions and doubts remaining. I do not believe that I go all the way with the noble Lord, Lord Pitt of Hampstead, as regards what he said on the Government's intention. I hope that it is not kidology on my part, but I certainly hope that the Government's intention is that all those who should receive asylum status under the UN convention get it and that those who are not entitled under the convention should not do so. No doubt my noble friend the Minister will confirm that in his winding-up address.
Incidentally, reference has been made to the fact that as the UN convention is now many years old, it is out of date and should be revised. It seems to me (perhaps a bit naively) that it is for the UN to do that, rather than Members of your Lordships' House. Until the UN alters that convention, I am happy to accept the Government's dedication to the principle set out in that convention, which seems to me to be an admirable model on which to base consideration of this subject.
If I may take a couple of quotations to illustrate my point, I approach this question of asylum primarily from the principle that God laid down in the book of Deuteronomy when He said, "do not deprive the alien or the fatherless of justice". I believe that it is our job here to seek justice for the applicants while we continue to show them courtesy, fairness and love, but that we should stick to what is the accepted criteria in the UN convention.
To back that up, perhaps I may quote also from the European Consultation on Refugees and Exiles. Speaking last October, the secretary said that we are to ensure the fair and efficient functioning of a humanitarian asylum system. That seems to embrace what your Lordships have been saying during this Second Reading debate. That is what we are aiming for. However, I do not believe that any two of us are interpreting those criteria in the same way. As several noble Lords have said, there is a balance to be struck between the two extremes and we need to try to get the best balance that we can. I hope that by the time your Lordships have finished with this Bill many of us will be happier with the balance than is the case as it starts its progress through this House. Many of the good things about the Bill have been mentioned. I refer, for example, to the speeding-up of the determination of applications to 28 days. We need the system to be fair and efficient, humanitarian and just.
I turn now to the question of fingerprinting. My noble friend the Minister was seeking to convince me that it is necessary and, reluctantly, I am prepared to accept the fingerprinting of adults. I did not write down the figures, but I believe that he said that there had been 27 prosecutions out of, I believe, about 1,500 investigations into multiple applications. My figures may not be accurate, but my noble friend will correct me if they are not.
Although there may be justification for the fingerprinting of adults, I am not at all convinced that it is justified in the case of children. The case of children has been put forcefully by my noble friend 1206 Lady Faithfull and others, and I do not want to repeat it. Children are, however, very vulnerable when they enter this country and we need to treat them gently. Surely, a minimum age for fingerprinting should be laid down at least in the rules if not in the Bill itself. I am not convinced that we should fingerprint those under the age of 16 but if it is necessary surely the minimum age should be 12 or 13. I should like to see that laid down in black and white.
I should also like to see a definition of the phrase,who is not an authorised person".I fear that to a child any stranger, especially a professional stranger, will appear as bad as an immigration officer. A child who does not know the language will not know the difference between a social worker and an immigration officer. This task should be carried out by a member of the family but, if there is none, I am attracted to the idea of a qualified person being an advocate, which has been recommended by several of your Lordships.
My final point on fingerprinting is that although I note that the destruction of the fingerprints has been specified, I wonder whether the fingerprints are to be truly confidential. That point worries me. There is nothing in the Bill to stipulate whether the fingerprints may be used in other places or perhaps even in other countries. I should like the provisions governing the confidentiality of the fingerprints to be strengthened in black and white. I did not feel a criminal on the occasions that I have been fingerprinted, but I am conscious of the fact that I was probably not as vulnerable as are asylum-seekers when they enter a new country. As I have said, fingerprinting may be all right for adults, but not for children.
On Clause 4 which deals with housing, I should like briefly to endorse all that my noble friend Lady Flather has just said. She was totally right and forcefully made my point that surely it is not necessary for a successful asylum-seeker to start again at the bottom rung of the housing ladder. Surely a successful applicant can be placed where he or she was formerly in temporary accommodation and join the queue for permanent accommodation from that point. Such people should not have to start again from the bottom. Although I take the point made by my noble friend Lady Faithfull that it is not right for an asylum-seeker to jump the queue, nor is it right for the opposite to happen and for the asylum-seeker to have to start again at the very bottom of the queue.
On Clause 8 concerning appeals, we all welcome the right to a full oral hearing, first, before a special adjudicator, but the timescale is totally impossible. Ten days would be impossible, let alone two days. I have seen instances—and many of your Lordships will know of instances—where it may take a five-hour journey to reach a detention centre to talk to a person and another five hours to get back again. That means that a whole day could be spent just doing that. One may be allowed only one hour with the asylum-seeker, and may then have to apply for a new appointment because one does not have all the information that is needed to lodge an appeal. The time schedules are totally impossible and the criteria for them is not adequately set out. In another place it was said that a 1207 two-day time limit would apply only to those applications that were "without foundation". Why, then, is that not specified at least in the rules if not in the Bill itself? I believe that the time limits are too short for any reason.
Finally, on Clause 10, I hope that the noble and learned Lords, Lord Ackner and Lord Woolf, will table amendments to tackle the withdrawal of appeals. They have ideas on that because of their vast experience and I very much hope that they will read Hansard and note that I am encouraging them to table amendments. I accept what my noble friend Lord Ferrers said and that the object is to clear the backlog, but I do not accept that it is right to withdraw the right to appeal as set out in Clause 10. I hope that the noble and learned Lords will provide the answers that will get us off this hook and kill two birds with one stone by reinstating the leave to appeal and clearing the backlog. I hope that they succeed.
§ 7.58 p.m.
§ Lord Mountevans
My Lords, I support Her Majesty's Government in much that this Bill is trying to do, as I did when we last discussed such legislation on 10th February last. My noble friend the Minister will not be surprised if I remain hostile to the burdens placed on carriers by the Immigration (Carriers' Liability) Act 1987 and by its extension through Clause 12 of this Bill.
I must declare an interest in relation to both tourism and the railways. I should like to remind the House that for some 20 years I have worked with a large number of British and foreign carriers with the specific objective of encouraging them to support the marketing activities of the British Tourist Authority. Although I no longer have any day-to-day connection with that activity, I still believe that Her Majesty's Government were and are right to recognise the importance of foreign tourism to our economy, and that they are right to direct the authority to raise all the support that it can from the commercial sector.
It may surprise your Lordships to learn that carriers contributed almost 60 per cent. of the authority's advertising spend last year. Furthermore, they contributed some two-thirds of the cost of other co-operative marketing ventures, such as print and inward missions. They contributed more than £2 million-worth of in-kind support in the form of free tickets for journalists and the travel trade as a whole. As I said, that support is welcomed by both the authority and by government. However, I must stress that the authority and the carriers feel that they are at risk because of the Immigration (Carriers' Liability) Act. Also at risk is London's domination as a tourist destination and as a transit air centre.
The 1987 Act placed on carriers the onus to ensure that passengers arriving at UK immigration controls have passports and visas which are absolutely in order and it penalises the carrier if that is not so. Initially the penalty was £1,000 but last year it was increased to £2,000. That is a stiff penalty to pay if a passenger's 1208 documents are not in order or, as is sometimes the case, if the passenger has no documents because he has destroyed them in transit.
In introducing the 1987 Act the Government appeared to be addressing the problems of economic migration and doubtful claims for asylum by making the carriers' check-in staff the first line of British immigration control. They might be employed by the carrier but that was not always thus; for example, Swiss law forbids British airlines from directly employing their own check-in staff in Switzerland. Some carriers have tried hard to fulfil the obligations imposed on them by that unsolicited task. British Airways spends more than £1 million per annum on staff training. As I mentioned in the debate last February, those of us who have seen the professional way in which its check-in staff address their task overseas cannot but believe that they are doing their best in circumstances which are becoming ever more complex as a result of economic migration, as a result of those who are seeking dubiously to achieve asylum status in this country, as a result of the large industry abroad which deals specifically with illegal immigration and as a result of the skill of the forger.
Whatever British Airways does each month some 90 or 100 people slip through the net and British Airways is levied that number of penalties. Whatever the staff of any carrier do it is clear that the demands made upon them—quite unfairly in my opinion—are not solving the problems that the Bill addresses or that the original Act addressed. That is why we have Clause 12 in the Bill and an ever-increasing number of penalties are levied. I understand that since the original Act came into force some £46 million-worth has been levied. Whether that is at £1,000 or £2,000 a throw it is a large number of people.
According to a Written Answer given in another place just before Christmas some £24 million of that £46 million remains unpaid. When I worked in government service debtors of that kind would have been the subject not necessarily of instant dismissal but of serious review. What is worse is that we do not appear to be doing a great deal to retrieve that £24 million. The carriers which I have consulted—including British Airways, the late-lamented Dan Air, American Airlines, Singapore International and several shipping companies—claim to be prompt payers if they believe that they cannot win an appeal. That suggests to me that other carriers are holding back. Among carriers as among any other group there will be good and bad apples. One must ask oneself why the odd writ has not been nailed to the odd mast in order to accelerate payment. It cannot simply be a matter of appeals outstanding. I wonder, as some carriers have claimed to me, whether diplomatic expediency is not being allowed to distort the level playing field.
Clause 12 will not aid the Government in achieving the objectives of the Bill. Rather it will distort the playing field for British airlines in that as in any market-led industry satisfying the customer is paramount. In order to comply with Clause 12 British carriers will have to be even more negative at the point of check-in overseas, rejecting perfectly legitimate 1209 passengers on grounds of suspicion alone. The transit passengers who reach the UK seem almost bound to be kept under a form of house arrest until they are safely embarked on their outward journeys. One slip and the airline or maritime carrier is penalised £2,000. That is £2,000 which at the end of the day we, the carrier's other customer, will end up paying.
One wonders whether such developments really sit all square with the Government's wish to see a strong British airline industry or with their directive to the British Tourist Authority to maximise revenue for British carriers. One fears that transit traffic, which is of major importance especially to our airlines, our airports and our economy, will go elsewhere. While some of our European competitors will suffer with us—Amsterdam, Frankfurt and Zurich in particular— Copenhagen, Rome, Vienna and especially Paris, which is a serious competitor to London, will benefit because their more relaxed transit visa requirements will advantage them at the expense of our efforts. In order to avoid that situation I hope that if Clause 12 reaches the statute book the Government will take steps to reconcile their asylum and economic migration problems with carrier interests.
In that context I hope that transit visas in particular will be easily obtainable. The noble Lord, Lord Bonham-Carter, rightly implied that that was not always the case in respect of ordinary visas. The position may well worsen as a result of Foreign Office cutbacks overseas. I hope that the Clause 12 powers will be specific but will be used sparingly. I hope that the economic consequences will be talked through between the Home Office, the Department of Transport, the carriers and the airports. I also hope that the appeals procedure will be reviewed and eventually operated with a greater degree of flexibility than hitherto. Sensibility and reasonableness in interpretation were promised in both Houses as the 1987 Act made its way onto the statute book.
There is a final dimension which must cause us concern in terms of both the 1987 Act and Clause 12. Late this year, as the noble Lord, Lord Bonham-Carter, reminded us, we shall have the Channel Tunnel. We shall have shuttle trains for cars, which for immigration purposes will convey passengers who have been dealt with in France. We shall have passenger trains from Paris, Brussels and other European capitals on which immigration procedures will take place in transit. That will be at penal cost to the European railways involved because they will have to hire additional immigration manpower in order to cope with the transit requirement.
One must bear in mind that the immigration officer will work only half time; he will work on the journey towards London but not on the journey out to his position. Check-in, as airlines understand that, will not exist. At the Gare du Nord tickets will be electronically read. Where does that leave the railways in terms of the 1987 Act or in terms of Clause 12? The latter has, I feel, a particular relevance because as other carriers and the Government seek to close one illegal immigration loophole the illegal immigrant industry will, as some of us know, probe towards another.
1210 In echoing the noble Lord, Lord Greenway, in his call for compromise in interpretation of the existing Act and of Clause 12, I hope that Her Majesty's Government will be evenhanded both to existing carriers and to new carriers. I seek the level playing field. At the same time I seek the achievement of the Government's other objectives, but the level playing field is of particular importance. I seek more Home Office co-operation. As the noble Lord, Lord Greenway, said, the improved relationship between the Home Office and the carriers is a welcome development. Finally, I seek more discretion—I cannot say at point of sale—at the point of immigration for immigration officers. With those factors in place I shall be happy to support the other measures in the Bill.
§ 8.10 p.m.
§ Baroness Seear
My Lords, it will not have escaped the notice of the noble Earl, Lord Ferrers, that his Bill has not been received with unqualified enthusiasm. I am sure he now recognises that we are to have a long and tough Committee stage, and that there will be a great many amendments arising from the speeches made this evening.
That being so, I do not propose to turn the Second Reading into a preview of the Committee stage. I merely intend to underline some of the points that have been made in order to emphasise the great significance which many of us on all sides of your Lordships' House attach to them.
First, there can be no question that everybody who has spoken about it—and I expect many who have not —cannot accept the clauses regarding children. It seems quite extraordinary that anybody could ever draft those clauses, let alone have any intention of turning them into the law of the land. Undoubtedly there will be amendments on that subject.
On the question of appeals, we are extremely grateful to the noble and learned Lords who have made the case for appeal so overwhelmingly strong this evening. I have no doubt that there will be powerful amendments along the lines that they have suggested. It is particularly important to remember the point made by the noble and learned Lord, Lord Ackner, that a legal right which cannot be enforced is no legal right at all. It is hypocritical to have it in the legislation. It is better not to have such a right than to have it there if it cannot be used.
The noble and learned Lords made it clear that this change involves questions which go beyond this Bill as such. It is a matter which is of considerable anxiety to the Lord Chancellor's Department. I have no doubt that when the time comes, the noble and learned Lord the Lord Chancellor will explain to us how the promised legal right of appeal can, in practice and in reality, be enforced. We have all noted how the noble and learned Lord, Lord Woolf, made the point that there are simply not enough judges to enforce that provision at present. Those are wide-ranging matters which will be taken up in Committee. Decisions are needed along the lines suggested.
As regards Clause 10, I wish to support what was said by the noble Baroness, Lady Perry, about 1211 students. It is an extraordinary idea that students are a burden. Of course they are a burden to us sometimes in the short term. Anybody who has had dealings with them knows that. However, in the long term, overseas students are an invaluable asset. I believe that I have said to your Lordships before that the LSE library, the best social science library in the country and one of the best in the world, could never have been built if the LSE overseas students, the former students, had not subscribed in very large quantities in order for that library to be built. The way in which people who have studied in this country are prepared to favour it in trade terms is surely an enormous asset. It is the most absurd short-termism to think that a little money spent on students now is money wasted. In fact, it is one of the best investments that can possibly be made. To make life difficult for overseas students is false economy of the first order.
As regards visitors, we must not forget that we have not cracked our race relations problem in this country. There is a great deal of anxiety in sections of the ethnic minority communities that matters are not getting better, and that in some respects they are getting worse. There is evidence to show that that is so. There is not much doubt that many of the visitors will be members of families of ethnic minorities in this country. Whether or not it is so, it will be seen by members of those ethnic minorities as a form of race discrimination. In many cases, it is a form of particularly unpleasant discrimination because it will mean that families will find it difficult to get together. Other noble Lords have made the point, but I believe that it needs to be underlined. After all, the Conservative Government are the government of the family, are they not? Families are families whether they are black or white. They need to be able to get together on those occasions when families allege that they like to meet each other. Therefore, Clause 10 needs to be looked at again.
I am very much with the noble Lord, Lord Mountevans, when he continues the battle against requiring carriers to enforce the regulations. The staff of carriers should not be involved in those matters. They have their own jobs to do, which they are trained to do. They are not trained to be enforcers of the law. People should not be subject to enforcement by those who are not properly qualified because it is not their job to carry out such work. To impose a fine of £2,000 on the carrier who brings people who do not have the proper papers is a quite inappropriate way of trying to enforce the legislation. We have argued that before on a number of occasions. I know that the Government are determined to maintain the requirement on the carriers, but at least we can continue to protest that that is not a proper way of enforcing the law.
I have never been able to understand why anybody should believe that a genuine refugee would be able to obtain the proper papers. If you are a genuine refugee escaping from your country, the last thing you are likely to be able to do is to go to the authorities and obtain the necessary papers. The Government have never told us why they believe that will happen. If you are not a genuine refugee, I am sure that you can 1212 obtain papers easily. If you are being sent by a foreign country to spy on people in this country, as happened in the 1930s (as some of us remember all too well) I expect you can obtain all the necessary papers that are needed. However, a genuine refugee is the last person to be able to obtain the documentation to prove that he is a desirable and worthy citizen. I beg the Government to look once again at that clause.
As I said, this is not a Committee stage. I wish to take up one or two rather broader points appropriate to a Second Reading. I recognise, along with everybody else, that we cannot have unlimited immigration. However, there is an extraordinary mood at present that to have refugees is fine because we have a great tradition of giving asylum to people who are subject to torture or who are fleeing from some tyrannical regime. But the implication is that economic refugees, about whom we speak with considerable distaste, will be the most enormous burden. History does not bear that out at all.
I must admit that some have been a burden. My own totally undistinguished forebears were among the thugs from Scandinavia who came across the North Sea to rape and to rob. I suppose in our case, they decided not to use their return ticket. However, the general record of immigrants is quite different; for example, the Huguenots. We have distinguished evidence of having Huguenots in your Lordships' House, one of whom has spoken this evening. There are many other distinguished descendants of the Huguenots who have contributed enormously with their hard work and high moral standards to the life of this country. The Flemish weavers brought in building and crafts and taught some of the residents of this country how to do jobs that they had not known how to do before. They have also added to the wellbeing of this country.
Two or three years ago, as a gentile, I was greatly honoured to be invited to a Jewish celebration of 100 years since the first Jewish Member of Parliament in this country. There were not many gentiles there. In the course of the celebration the Left-wing then Labour Member of Parliament, Ian Mikardo, said, "We should remember that but for the generosity of the British, many of us would be ashes in an unknown eastern European grave". That generosity has been repaid to this country over a thousand-fold in the arts, in music, in academia, in science and in making money —an art not to be despised. We should have been much poorer if we had not had them come in. These economic immigrants are not to be scorned. At present, the numbers may be too great to take at any one stage; but immigrants can be of the most tremendous benefit to the country that receives them.
We are dealing with something much bigger than the subject covered in this legislation. The noble Baroness, Lady Flather, referred to this matter. There will not be less migration in the world; there will be a great deal more with the increase in population in the developing countries which are unable to feed their own people. As was said to me in Kenya two years ago, "In 10 years' time, we can neither employ them nor feed them". Those people will migrate, and it is 1213 time that we saw the situation as one of the world's great problems. We need to get together on an international scale or at least at the European level.
This is not altogether a matter of subsidiarity, much as I support the ill-sounding concept. This is something which we should be dealing with together, at least at the European level, because it will get bigger and bigger and more politically difficult to deal with.
As my noble friend Lord Bonham-Carter suggested (based on the letter that I think many of us had from the noble Lord, Lord Jakobovits), an international conference should be convened to see how we can anticipate and so deal with the very serious problems that lie ahead, which will make the present problems look trifling. We should not deal with them as a single country fearful of getting new and different people in, but as a civilised world which has to deal with the hideous problem of people on the move.
§ 8.22 p.m.
§ Lord Clinton-Davis
My Lords, this has been a remarkable debate. If I may say so, the speech that we have just heard was characteristically remarkable. We all have great affection for the noble Baroness and we listen to her with great care. She spoke most movingly and profoundly.
I suppose I must first declare an interest in that I am the chairman of the British Refugee Council. I am very happy that the chairman of one of my committees is the noble Baroness, Lady Flather. I am very proud that she serves with me on the refugee council, and even prouder tonight after hearing another stunning speech, if I may say so.
This has been a remarkable debate, not least for the interventions of the law Lords, or, in some cases, former law Lords. I shall allude to some of their comments later, but clearly the Minister will have to think deeply about the observations that were made in a number of respects about the deficiencies of a Bill which offends legal principles and about the very remarkable revelation that we heard from the noble and learned Lord, Lord Woolf, who disclosed that according to inquiries he had made the Government had failed or had refused to consult with the presidents and chairmen of immigration tribunals. I cannot think what they were up to. Surely this is a matter which goes to the very heart of the work that they undertake. So it is incumbent upon the noble Earl tonight to disclose to the House why that arose at all.
There are many in our society today in Europe who preach the gospel of hate and fear. I believe that hate and fear can only poison and degrade our society and degrade our people. That is why it is incumbent upon all of us in a democratic society to rebuke those voices, and why we must turn away from those who preach fear and despair, doubt and suspicion.
I believe that the Government have gone the other way. They have chosen to pander to those voices. I do not believe that the Bill contributes to the purposes which I have just outlined. It is said that the Bill will improve race relations. I do not believe that to be the case. Indeed, it is interesting that when the Bill was revealed one saw in the tabloids headlines such as "Clarke acts to stop phoney refugees flooding into 1214 Britain", which is not exactly the voice of compassion: or "New war launched on refugees racket"; or simply —as the Sun newspaper tends to be very simple indeed —the banner headline "No entry". Those are the people who have declared their great pleasure with the Bill. That is one of the reasons why we on this side of the House are so firmly opposed to it.
Essentially, the Bill reflects the same mischiefs as the initial Bill did just before the general election. The Bill is opposed vigorously by virtually every organisation and individual who has anything to do with refugees, by councillors such as my noble friend Lord Ponsonby, by the noble Lord, Lord Pitt, both as a doctor and as deputy chairman of the Community Relations Commission, by people who are intimately involved with the situation and know precisely what they are talking about, and by those who have dealt with the unfortunate, vulnerable people who, for the most part, even if they do not strictly conform to the criteria of the 1951 convention, have lost everything: their country, home, family and friends. That is a great deal to lose, a point made forcibly by the noble Baroness.
As the Minister conceded, the Bill is virtually the same as the 1992 Bill, with some slight improvements. It remains a huge mistake. I realise that it is not forbidden for politicians to repeat their errors, but neither is it mandatory. The Bill does not illustrate a determination to achieve that fairness which the Minister underlined in his speech in dealing with asylum seekers—that is, I believe, the pretence—because it introduces changes in the law and in the rules that are the very antithesis of that purpose. Those points have been developed during the debate with telling force by many of your Lordships. It is not even a Bill which purports to deal with the original justifications which were urged by the previous Home Secretary, who placed great emphasis on the task of reducing the number and backlog of applications. He supported those observations with predictions before the general election which were designed to make the flesh creep. Those justifications have been swept aside, whatever the noble Earl may have said about the matter today, by the Government's own statistics. The number of applications has dramatically fallen and the backlog has been stopped and is in sharp decline.
The Bill reflects little compassion for, or understanding of, the circumstances in which asylum seekers find themselves on arrival. In my former legal practice, I dealt with a great many cases involving refugees and immigrants. Most were people deeply suspicious of authority. They imagined, not unreasonably, that it would be akin to authority in the land from which they had just escaped, perhaps after suffering torture and threats of death.
The position could not have been put more graphically or vividly than it was by my noble friend Lord Mishcon. He invited us, in trying to put the Bill into proper perspective, to consider how we would feel if we were leading a refugee family. Would we go to almost any lengths to try to secure a haven for them? That was a simple but telling way of putting the whole situation. In dealing with the issue in that way he demolished those facile arguments that the majority of 1215 applicants should be regarded as bogus if they failed to achieve the criteria for asylum seekers. That point has been made over and over again and does not require further repetition from me.
The fact is that people who are seeking to escape do not go to a great deal of trouble to find the necessary documents. That is probably the last thing in their minds. They may even be obliged to destroy documents which they have in their possession for fear of being identified by the authorities from whom they are seeking to escape. They may be worried about the loved ones they have left behind. There may be every reason, therefore, for them to destroy the means by which they may be identified.
It is a tragedy that all too often they are given a hostile reception when they arrive on these shores. It may be that people in authority become inured to the situation and therefore react in that way. That does not apply to all immigration officers but certainly to some of them.
As my noble friend Lord McIntosh said, this is a Bill introduced by a Government who are insensitive or perhaps simply fail to care to understand the sort of pressures to which I have just alluded. The Government have deliberately confused issues of asylum and immigration when they are separate issues.
Another remarkable speech was that of the noble Lord, Lord Bonham-Carter. The noble Lord referred to the Trevi Group. He found it deeply offensive, as I do, that the Trevi Group of internal affairs ministers should conduct its business wholly in secret. We do not know what goes on. Occasionally we may see a leaked document, but that is all. Why should those discussions be conducted behind closed doors? They affect people's lives. It is a pernicious practice. What the Trevi Group does is to introduce more and more restrictive approaches to asylum seekers. Regrettably, that has also been the case under the British presidency. I endorse what the noble Lord said, and I endorse what the former Chief Rabbi said in his letter. The Trevi Group should be trying to achieve a more equitable sharing of the problems which exist instead of adopting the negative approach which it has undertaken.
One of the documents leaked in November 1992 had this to say on the subject:those who fear violations of their human rights should if possible remain in their own countries and seek protection or redress from their own authorities or under regional human rights instruments".What a thing to say! What a thing even to think. I ask the noble Earl directly: is that the policy of his Government? Is that the route to be adopted in respect of the Kurds fleeing from Iraq, Iran or Turkey or of Tamils from Sri Lanka? The noble Earl is duty bound to tell us.
I turn now to deal with the Bill itself in outline. As my noble friend Lord McIntosh warned the Government, in what I think the House will acknowledge was an excellent speech, we shall scrutinise the Bill. We shall seek to persuade the House and the Government to alter some of its more offensive aspects. I had thought that today the noble 1216 Earl, having observed the debate in another place and by reason of the submissions made to him by refugee organisations and others, would have recognised the force of what would be said today well in advance. I had hoped that he would say that the Government will willingly contemplate amendments to the Bill. But he did not do so.
On the question of fingerprinting, it seemed to me that the noble Earl did not begin to comprehend how outrageous are the propositions which have been advanced by the Government. The point was made with great force by the right reverend Prelate the Bishop of Ripon. All asylum seekers will be affected. The fingerprinting is to be undertaken by immigration or prison officers, by the police or by Home Office civil servants. Why have young children been included in that provision? When the first Bill was debated Ministers conceded that very young children would not necessarily be fingerprinted. I know that Ministers are reflecting on that position at present, but I ask why it was ever thought up at all.
In parentheses, perhaps I may mention the powerful criticisms made by the noble Baroness, Lady Faithful], of that issue and the question of children in particular. She said that the Bill contravened the Children Act. Those seem to be points which passed the Government by altogether when preparing the Bill.
In the past fingerprinting has been associated with criminality. The Government cannot escape from that. We are not dealing with criminals. We are dealing with people who are extremely vulnerable and tormented and who are victims of others' criminal behaviour. We shall do our best to ensure that the more odious of those provisions are substantially amended.
I do not propose to go into the changes in immigration rules in great detail. My noble friend Lord McIntosh indicated the course we propose to follow. Our concern is that genuine asylum seekers will become enmeshed in the procedures allegedly devised to seek out bogus asylum seekers. The Minister must be aware of the anxieties expressed in the House today. He must do something about them.
The noble and learned Lords, Lord Donaldson, Lord Ackner and Lord Woolf, expressed serious criticisms, endorsed by my noble friend Lady Mallalieu, of the time limits on appeals. The gravamen of the issue which they have raised is that it is necessary to be able to offer legal assistance. However, there must be time to do that. There must be time for lawyers to give that aid, and there has to be time for the person receiving it to absorb that advice. In a number of the respects which we are considering today, there is no time.
The noble and learned Lord, Lord Donaldson, regarded Clause 11 as vicious. The noble and learned Lord, Lord Ackner, gave profound advice regarding the 48 hour time limit. We look forward to amendments which he proposes in that regard. The burden of his remarks was one of terrifying simplicity: if you grant a right and then make it incapable of being exercised you grant nothing. The Minister must take that on board.
1217 The issues of removal of appeal from visitors and students and of access to housing have been dealt with by a number of noble Lords. My noble friends Lady David, Lord McIntosh, Lord Mishcon, and Lord Ponsonby, and the noble Baroness, Lady Flather, dealt with the subject of access to housing. We shall return to that as we shall return to the issue of carriers' liability.
I conclude on this note. The Bill is ill considered and unpleasant. It could help to create the problem, if other member states apply similar criteria, of refugees in orbit, treated like pariahs and unable to settle anywhere. Teddy Roosevelt once said of William Howard Taft, "He means well feebly." That is about all that one can say of the Government on this occasion; and I am not so sure about their meaning well. The Bill is an attempt to satisfy the insatiable appetites of people who engage in racism and who turn their wrath on immigrants and asylum seekers. It makes no pretence about sharing responsibility among other countries. It contrasts badly with what happens in desperately poor countries such as Malawi, Kenya and even southern Sudan which have adopted policies to absorb refugees that make our efforts appear puny.
I would rather have it on my conscience as a Minister that I had wrongly admitted an asylum seeker than have it on my conscience that I had mistakenly sent him back to torture or even death. It is against that consideration that we make a plea for the Minister to show flexibility, to take real account of the arguments and to introduce his own amendments to cure the more pernicious elements of the Bill.
§ 8.41 p.m.
My Lords, I did not expect the noble Lord, Lord Clinton-Davis, to give an enormous welcome to the Bill. It is not in his nature to do so. However, I considered that he went over the top when he stated that it was an ill-considered and unpleasant Bill drawn up to satisfy the people who indulge in racism. If that is the noble Lord's interpretation of the Bill I can only tell him that he ought to think harder and more deeply about it. He stated that the Government confused asylum with immigration issues. There is no confusion; the two are different. The noble Lord knows that perfectly well. It is not our intention in any way to confuse the two.
The noble Baroness, Lady Seear, said that she would not be surprised if the Bill were not met with universal approval. I would have been surprised if it had been. Your Lordships are always sensitive to any matter dealing with immigration and quite rightly so. I realise that noble Lords have many different views. However, that does not detract from the Government's obligation to deal with a problem that exists: the problem of people using and abusing the system in a way which one cannot allow to continue.
The noble Baroness interested your Lordships when she told us of her somewhat disreputable lineage. One often notices reflections in people resulting from their ancestry. However, I did not notice any of the ancestry as described by the noble Baroness reflected in herself.
1218 Noble Lords were also lucky to have had the privilege of hearing from the law Lords. It is always a formidable sight to see them seated three in a row. I find great comfort when the noble and learned Lords are on my side. I was not wholly successful with that aim today. The noble and learned Lord, Lord Ackner, accorded with the Government on one issue. He gave a crumb of comfort. Another crumb of comfort had a stone in the middle. The noble and learned Lord, Lord Woolf, did not give many crumbs of comfort. The noble and learned Lord, Lord Donaldson, gave none. The advantage of having the noble and learned Lords on one's side is not because they are always right but because they are very powerful in both stature and eloquence. It is nice to feel that power in support rather than in opposition.
There is no dispute that the United Kingdom should continue to uphold its obligations to refugees under the 1951 United Nations convention. The Bill makes it perfectly clear that the convention is at the forefront of the asylum procedures. There is no dispute that all applicants should be able to have their claims determined fairly and quickly. The Bill will ensure that all those who are refused will have access to an independent adjudicator. There is no dispute that unfounded applicants should be refused and that misuse of asylum procedures should be resisted. In all the rhetoric of the noble Lord, Lord Clinton-Davis, I do not believe that he considered that there should be an excuse for allowing the abuse of asylum procedures or allowing those who abused them to come into the country. There is therefore a basis of agreement. We have to try to find the correct way through.
Asylum is a complex business. Some of the movements of people that we see are motivated by individual suffering and by the systematic abuse of human rights. We all sympathise with the victims and have to play our part in protecting them. However, asylum procedures also represent a weak link in immigration control which many have no compunction in exploiting. It is to deal with that that the Bill is before your Lordships.
Everyone is horrified by the world of turmoil, starvation and persecution that we all see. We all want to help. I agree with the noble Lords, Lord Mishcon and Lord Clinton-Davis, that one would do anything to get away from repression. Of course one would; there is no doubt about that. But many people on the move make it all the more important that we should have proper rules. I agree with my noble friend Lady Perry of Southwark that we ought sometimes to applaud what we have done rather than always to criticise what we are doing. We have to have immigration rules because more people are on the move.
Asylum is different. We have every sympathy with those who wish to avail themselves of asylum, but we must not allow people to abuse the asylum process. That is the problem. I was glad that my noble friends Lord Mackay of Ardbrecknish and Lord Reay approved the Bill for that reason, as indeed did the noble Lord, Lord Monson. Her Majesty's Government wish to be sympathetic to asylum. Indeed we are. But we must have fair rules for immigration: 1219 rules that are fair not just to the immigrants but also to those who live in this country. The noble Lord, Lord McIntosh, referred to the rise of racist violence in Germany. That is what happens when the existing system cannot absorb the influx. Any government have to make sure that there are rules.
§ Lord McIntosh of Haringey
My Lords, will the Minister allow me to intervene? It is the second time that such a suggestion has been made. It sounds very much to me as though the Minister is justifying the racist violence in Germany. Surely the Government ought to make clear that even if the system cannot absorb those people, there is no justification for racist violence.
My Lords, I sometimes find it difficult to explain myself. If what I have said has given the noble Lord the impression that I was approving racist violence, I can only say that I find that quite astonishing. The thought and the words had never entered my mind. Of course I am not approving. I am saying that one of the problems is that if one does not control immigration in some form or shape, one can have troubles. That is one of the results that they have experienced in Germany. Of course, one deplores any kind of racist violence. One deplores violence and equally one deplores those who abuse the rules.
The noble Lord, Lord Bonham-Carter, said that the problem was real, world-wide and would not go away. That was the one part of the noble Lord's speech with which I agreed. I hoped that he would say something helpful, but no, he thought better of it. He said that the previous Bill was bad and that this Bill is bad. He gave the Government no commendation whatever for having dropped the proposal about which he and others were vociferous in the previous Bill about leave having to be obtained for an oral hearing. There was no commendation for increasing the asylum division staff in the way that it has been increased from 120 to 500 in two years in order to try to make the problem easier to solve.
The right reverend Prelate the Bishop of Ripon, in an understanding speech, said that rapidity should not be the criterion, it should be justice. Of course, justice is important, it has to be important; but justice delayed equally is justice denied. We should all like to see the system which we have at the moment improved because the delays are quite intolerable.
What lies behind the Bill? It is not—as the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Bonham-Carter, said—to keep people out. It is to prevent abuse. The fact is that the numbers of applicants have risen tenfold in two years, as I explained in my opening speech. I gave your Lordships other figures, including the fact that out of 35,000 cases 15,000 people completely failed to attend their interviews. Of the remainder, only 1,100 were granted asylum. Clearly something must be done. I hope that your Lordships will, on the whole, realise that.
There were other points; obviously I cannot deal with them all, but there were a number of major issues to which I should refer. The first which causes much 1220 worry to your Lordships is fingerprinting. The noble Lords, Lord McIntosh, Lord Clinton-Davis and Lord Mishcon, referred to it, as did the right reverend Prelate the Bishop of Ripon, the noble Baronesses, Lady David and Lady Mallalieu, and my noble friends Lady Flather and Lord Brentford. In fact, it was almost but not quite everyone. The noble Lord, Lord Monson, said that he had no objection to fingerprinting; it was only those who lived a life of crime who need object. I agreed with him. Personally, I find little to worry about in it.
The noble and learned Lord, Lord Ackner, said—and this is where he gave me the crumb of comfort—that he saw no objection whatever to fingerprinting. I was grateful for that support.
Perhaps I may refer to some points about which your Lordships were concerned. The right reverend Prelate was worried about why the standard acknowledgment letter was not sufficient. The standard acknowledgment letter relies on a photograph to identify the holder. There is no reliable way of indexing photographs to check whether the applicant has been given another letter previously. Although there has been some success in detecting multiple applications under the present system, only comprehensive fingerprints will guarantee that multiple applicants can be detected.
Some noble Lords, including the noble Lord, Lord McIntosh, said that fingerprinting was not necessary. The number of convictions for social security fraud may be the tip of the iceberg; 1,500 cases are currently under investigation. Other European countries have found that when they introduced fingerprinting between 5 per cent. and 15 per cent. of the applications were multiple. We need fingerprinting to ensure that multiple applications are picked up.
The noble Lord, Lord McIntosh and my noble friend Lord Brentford were also worried about the need for fingerprinting. I can only tell your Lordships —and this is the point which worried my noble friend Lord Brentford—that there have been 27 prosecutions so far but they involved 700 different identities. More telling are the screening procedures which can have a deterrent effect. The difficulty is that people just do not co-operate. Of the 11,402 new applicants who were invited for identification interviews, 7,400–64 per cent.—did not turn up. Of the 7,250 who were invited for a second time, 5,500 did not turn up. That is 75 per cent. One wonders where they were. We have been screening the backlog and so far 15,000 refusals have been made on the basis of people not showing up at identification interviews.
The noble Lord, Lord Clinton-Davis, said that fingerprinting was intolerable because it was associated with criminality. Fingerprinting for police business and fingerprinting for asylum records are totally different. The fact is that three-quarters of the applicants at ports and more than half in the country do not have proper documents. Fingerprints are the only secure and reliable way of keeping track of who is claiming asylum. I believe that it is not adequate to accept that people are who they say they are, when they have deliberately disposed of all the evidence of the facts.
1221 My noble friend Lady Flather was worried about Department of Social Security fraud by United Kingdom citizens. All I can tell her is that there is no implication that asylum-seekers alone may defraud the Department of Social Security or that as a group they are particularly likely to defraud the department. The point is that they are more likely to appear with no evidence of their identity and no verifiable history here at all. For the unscrupulous, that is obviously a sound basis for fraud. The Department of Social Security seeks to deter and detect fraud by claimants of all nationalities.
The noble Baroness, Lady David, my noble friend Lord Brentford and the noble Lord, Lord Clinton-Davis, were worried about children being fingerprinted. My noble friend Lord Brentford wanted the age of 13 to be written into the Bill. I am bound to tell your Lordships that the Government are reluctant to specify a limit. Because so many applicants dispose of their identity documents, there will obviously be wrangles about a person's age. That is one of the difficulties that would arise if we were to put the age in. We made it perfectly clear that we had no intention of routinely fingerprinting young children but we think that it is important to retain the possibility of fingerprinting in particular cases, to avoid creating a loophole which could be abused.
The noble Baroness, Lady Mallalieu, was worried about fingerprints on the file with the Home Office. All I can tell her is that taking fingerprints will ensure that one person can obtain only one standard acknowledgement letter which the Department of Social Security will expect to see produced when the benefit is cleared. There is no question of the DSS fingerprinting applicants.
My noble friend Lord Brentford referred to the confidentiality of fingerprints. I am happy to repeat the assurance that records will be kept entirely separately from police records. There will be no question of the police trawling through immigration records. But that does not rule out answering specific inquiries from the police, for example to assist in identifying a body.
There are no immediate plans for the exchange of information with other countries but European Community countries are looking at the possibility of a joint fingerprint identification system. No final decisions have yet been taken.
Another point of anxiety was children. The noble Lord, Lord Bonham-Carter, the right reverend Prelate the Bishop of Ripon, the noble Baroness, Lady David, and my noble friend Lady Faithfull, referred to it. It is not necessary to have specific legislation in order to treat children sympathetically. The Government wish to ensure that the procedures respond to their needs. The numbers of unaccompanied children are relatively small, only about 200 to 300 a year. Welfare is clearly the responsibility of local authorities under the Children Act 1989 and representation is available free of charge from the Refugee Legal Centre which is developing a specialist team to deal with vulnerable cases.
The Government believe that the framework for meeting children's needs is already in place. Clear 1222 responsibilities are already assigned to local authorities by the Children Act 1989. I recognise that there may be potential difficulties of access to existing services. I welcome the proposals from the voluntary agencies which the Department of Health is now considering for a central organisation to provide advice and informed information on handling these cases. There is no conflict with the Children Act. Of course, the child's interests are taken fully into account, but they alone cannot determine whether or not the child can enter the United Kingdom.
The noble Baroness, Lady Mallalieu, was worried about nurses. The Bill does not affect the ability or otherwise of nurses to come here. The only relevant change is the removal of the right of appeal against the refusal as a prospective or short-term student. That is a student of under six months. There is no question about criteria for admitting people in these categories becoming any more restrictive than the criteria set out in the rules.
I now turn to the matter of the 48 hours. That has caused some of your Lordships considerable anxiety. The right reverend Prelate the Bishop of Ripon referred to it, as did the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Mallalieu.
The noble and learned Lord, Lord Ackner—in the part of his speech which was his crumb which had a stone in it—said it was forensically myopic to think that a rushed procedure would be fair. He went on to refer to his friend the late Lord James, who was, he said, unlike himself, a workaholic. I am glad that the noble and learned Lord and myself share a common approach in our attitude to life. He disturbed me considerably when he said that Lord James brought on his demise by a propensity to overwork. I just hope that the noble and learned Lord, Lord Ackner, will allow me to follow him rather than Lord James by not developing in me a regrettable and unnatural propensity to overwork by obliging me to think up arguments to questions which he might raise in putting down amendments at the Committee stage. I would find it most disagreeable if I were to follow the course of Lord James because of the approach of the noble and learned Lord.
The position on the 48 hours needs spelling out. On arrival at a port, if you are seeking asylum, you request asylum and it is considered. If the application is accepted, a paper is given to you saying that you have leave to enter. If asylum is rejected, you are given a paper asking whether you wish to appeal. The point about the 48 hours is that from that moment you are given 48 hours in which to complete a document saying that you wish to appeal. Other appellants have 10 working days to appeal. That happens only in very limited circumstances. The notice of refusal is served in person. The Government have said that in practice that will mean that a person is in detention and the Secretary of State has certified that the application is groundless. When the position is considered, it has to be considered within 10 working days.
With regard to the other matters, they are given 42 days. If one goes to a special adjudicator, there are five working days on which the groundless cases are adjudicated. Otherwise, there are 42 days in which this 1223 can take place. The adjudicator has the ability to extend that length of time. The point I was trying to get over to your Lordships is that it is not 48 hours in which the decision has to be made; it is 48 hours in which the application to appeal has to be made.
The right reverend prelate the Bishop of Ripon asked whether the appellate aúthorities had been consulted about the 48-hour time limit. The Lord Chancellor's department has consulted the immigration appellate authorities on the procedure rules. They have made a number of useful comments, and I understand that they have not raised any objection to the time limits for lodging appeals.
The noble and learned Lord, Lord Ackner, also spoke on that point. Asylum seekers will have had the opportunity to seek legal advice in the presentation of their case to the Home Office before the application is refused. We believe that virtually all the people refused asylum at ports will exercise their right of appeal, however long a period is allowed. The refugee legal centre, which provides free advice and representation, will be in regular attendance at places of detention.
The noble Baroness, Lady Mallalieu, also referred to the time limits for appeals. I hope that I have given the information clearly to her. There are two working days after the notice of refusal to lodge the notice of appeal. There are five working days after the receipt of the notice of appeal for the adjudicator to hear the appeal. That is in the fast-track system. In other cases, there are 10 working days to lodge the appeal and 42 days for the adjudicator to hear it.
On the subject of appeals, the noble and learned Lords, Lord Donaldson of Lymington, Lord Ackner and Lord Woolf were worried about Clauses 10 and 11. The noble and learned Lord, Lord Donaldson, gave an example. I can assure him that we have no intention of using the provision in the way in which he feared. If an immigration officer ever acted in the way he described, I join him in hoping that a judicial review would take place. I also hope that the immigration manager would correct the matter first. All we are trying to do is remove appeals where they are bound to fail. For example, the immigration rules state that only a Commonwealth citizen can come on a working holiday or come as a working holidaymaker. An American is bound to be refused. An appeal for that kind of request serves no useful purpose.
On Clause 11, there was anxiety expressed by the noble and learned Lord about the rights of appeal. Nobody will claim that immigration officers are infallible. But with regard to the type of case mentioned, I believe that the likelihood is extremely small, especially since refusal of leave to enter must be confirmed by a senior officer. The onus is on the passenger who is seeking entry to produce a passport or other documentary evidence which shows that he qualifies. If he cannot do so, his appeal at present is bound to fail. The judicial review will remain a remedy of last resort.
Lord Donaldson was also worried about the effect of judicial review. A person abroad can apply for judicial review if he has a representative here. We do not expect that there will be many applications. We 1224 are trying to ease the burden on the High Court by creating the appeal to the special adjudicator in port asylum cases, and by providing a right to go to the Court of Appeal. I believe Lord Donaldson's colleagues on the Bench consider that is better than judicial review.
The noble and learned Lord, Lord Woolf, was anxious about the cost of judicial review and legal aid to the Lord Chancellors' department. He asked two special questions. The figure in the Explanatory and Financial Memorandum is the department's best estimate of the overall impact on that budget. It is impossible to predict how many applications there will be for judicial review. It is important to note that other provisions in the Bill, such as the new asylum appeal rights including access to the Court of Appeal on a point of law, may have a positive impact.
The noble and learned Lord was also worried about whether the savings took account of the increase in cases of judicial review or whether the number of judges would be increased. There may be some additional judicial review applications as a result of the clauses. Clause 8 gives a new right of appeal to a special adjudicator, and that should result in a decrease of the judicial review applications. Therefore the figures quoted are as near as can be estimated to be reasonable. We have not asked my noble and learned friend the Lord Chancellor for more judges to deal with cases of judicial review. We do not believe that there will be a significant overall increase in the number of applications.
Various noble Lords were worried about the carrier's liability, including the noble Lords, Lord Clinton-Davis, Lord Greenway, and my noble friend Lord Mountevans. Carriers can start with a clean sheet, as the noble Lord, Lord Greenway, requested, provided that they pay their outstanding charges. I was grateful for the words in the guidance on carrier's liability. We hope to circulate that in its final form on 1st February. I note what was said about the charges for some ferry passengers and the effect of French and Belgian law. However, I am not in a position to give a final view on that. The matter is under consideration.
My noble friend Lord Mountevans was concerned about the same problem. I can say that no charge can be levied if forgery of, say, a passport or visa is reasonably apparent; no charge can be levied if the carrier can show that the passport was held when the passenger set out. The carriers are well aware of and have made full use of the possibility of the review of charges by immigration service headquarters. The fact remains that many charges arise because the passenger does not hold a United Kingdom visa in his passport when he should. That refers to around 40 per cent. of cases. It is not acceptable that those kinds of people should be transported to this country.
The noble Lord, Lord Clinton-Davis, asked why we did not consult with the immigration appellate authorities. There was the fullest consultation between the interested government departments. The concerns of the appellate authorities are as to how appeals are conducted and not who should be able to appeal. That 1225 is for the Government to decide and for Parliament to approve. We shall carefully consider those comments on the proposed procedures.
A number of other points were referred to which it would be improper for me to raise at this time. If there are any I have not addressed—I know there are many—I shall do my best to answer them. I come back to what I said at the beginning. Of course I realise that your Lordships are anxious about the Bill. I will take into account those anxieties and what may be said at Committee stage. However, we must all accept the basic principle—that is, that we must be fair to asylum seekers. We must also ensure that people do not abuse the process. That is what the Bill is about. I hope that in due course we shall ensure that that is achieved on the statute book. I commend the Bill to your Lordships' House.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.