HL Deb 30 April 1996 vol 571 cc1476-544

3.9 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Extension of special appeals procedures]:

[Amendment No. 14, as an amendment to Amendment No.1, not moved.]

The Chairman of Committees

In calling Amendment No. 15, as an amendment to Amendment No. 1, in the name of the noble Lord, Lord McIntosh of Haringey, and if it is not too far out of order to do so, I am sure that we all wish the noble Lord many happy returns of the day.

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No.15: Line 25, leave out from ("persecution") to end of line 27.

The noble Lord said: I thought that the Chairman was supposed to sit in a purely formal capacity. I am grateful to him for his good wishes. I cannot think of a worse way of spending a birthday afternoon than dealing with the Asylum and Immigration Bill.

For the benefit of those Members of the Committee who were not present last Tuesday, Amendment No. 1 is the Government's welcome redrafting of the complicated formulation of Clause 1, which appears in the Bill as printed. My amendment may seem perverse at first sight because it seeks to remove the specified reasons for a fear of persecution by reason of the appellant's race, religion, nationality, membership of a particular social group, or political opinion from sub-paragraph (4)(a) of the new clause. There are good reasons for that and I hope to show the Committee that the amendment is well justified. The reasons for a fear of persecution given in the new clause are taken from the 1951 convention. We welcome, as we have always done, the continued commitment of the Government to the convention in their legislation, as under the 1993 Act and the immigration rules, and their commitment that those rules shall never be in conflict with the convention.

The United Kingdom has signed other relevant conventions. It is important that they should be taken into account because they properly extend the definition of persecution and, above all, the definition of refugee status. Therefore, on the very sound legal principle that if one includes one list of reasons, then, by implication, one excludes another—I shall not say it in Latin this time—it is necessary to remove the specified reasons in order to include the other reasons.

The UN Convention on Torture, which is surely entirely appropriate to refugee status and therefore to asylum-seeking, with which the clause is concerned, says that an asylum seeker should not be sent back to face torture, inhuman or degrading punishment. The Committee recognised the importance of that in agreeing the amendment proposed by the right reverend Prelate the Bishop of Liverpool last Tuesday. But that is not the only additional convention with which we shall be concerned. I remind the Committee of the European Convention on Human Rights which, in Article 3, extends the reasons not only to cover persecution by a government but also persecution for which governments are not responsible but which they have been unable to stop. An example was given in Committee in another place. Mr. Martinez Quijano, of Colombia, applied for refugee status, not for convention reasons but because he was threatened by the drug barons who control so much of life in that unfortunate country. It was not that the state of Colombia was supporting or in any way condoning the threats made by the drug barons but that it could not bring a halt to their activities. When the case came to the Immigration Appeal Tribunal it recommended that he should be given exceptional leave to remain. The Home Office refused but eventually he was allowed to stay having been granted exceptional leave to remain under judicial review.

In a number of cases adjudicators responsible for appeals have accepted that an applicant has suffered torture but not for reasons given in the 1951 convention. Under those circumstances, as the Minister reminded us when we were dealing with Amendment No. 3 last week, the only power that the adjudicator has is to recommend exceptional leave to remain rather than full refugee status.

By excluding the specific provisions from Clause 1 we seek not to deny the importance of the convention and its reasons but to confirm that we have other international obligations under further treaties and conventions which should be included as proper reasons for an asylum seeker and for refugee status. I beg to move.

3.15 p.m.

Lord Renton

Although I am a keen supporter of the Government and commend them for bringing forward the new clause to replace Clause 1, the argument put forward by the noble Lord, Lord McIntosh of Haringey, is worthy of consideration. However, it is more a drafting matter than the matter of substance the noble Lord tried to indicate that it raises. "Raises" is the operative word. If Members of the Committee look at line 28 on page 2 of the new clause they will see that whereas in line 28 the word "shows" is used, in line 29—

Lord McIntosh of Haringey

I did not move Amendment No. 14 which was concerned with "show" and "raise". I moved, and I am speaking to, Amendment No. 15, which is not about those words.

Lord Renton

In that case I ask the noble Lord to accept my apologies and to say that I shall come back to the matter, if necessary, when I have understood it.

Lord Dean of Harptree

I express some doubt about the amendment. It may be that additional clarification will be of some assistance. The amendment, along with others to Clause 1, substantially weakens the fast-track procedure which I regard as essential to the Bill. It is really the heart of Clause 1. The procedure is important in order to deal with abuses of our hospitality and to ensure that claims which are unlikely to be successful are dealt with as speedily as possible, thus safeguarding the position of genuine claimants. It is essential that there should be adequate safeguards in a sensitive matter of this kind.

The fast-track procedure provides those safeguards. It provides for an adjudicator who is independent. He is appointed by the Lord Chancellor, and he will consider each case on its individual merits. The procedure also provides for appeals. Unless I am mistaken in my understanding, the amendment goes a considerable way to substantially weaken the heart of Clause 1 of the Bill.

Baroness Blatch

In the spirit of unity and consensus, perhaps I may begin by agreeing with the proposition advanced by the noble Lord the Chairman of Committees that the noble Lord, Lord McIntosh of Haringey, have a very happy birthday. But now, to business—although I hope that nothing that I say will detract from that proposition.

The noble Lord, Lord McIntosh, proposes to delete the last 15 words of sub-paragraph (4)(a), which is aimed at a claim which does not show a fear of persecution. Under the amendment, sub-paragraph(4)(a) would no longer specify that the persecution must be for reasons of race, religion, nationality, membership of a particular social group or political opinion. The existing text follows the wording of the 1951 convention. Moreover, asylum appeals under Section 8 of the 1993 Act are made on the grounds that the applicant's removal would be contrary to the United Kingdom's obligations under the 1951 convention. It is for those reasons that we consider that sub-paragraph (4)(a) should remain precisely aligned with the convention's criteria.

It is also right to say that nothing in this part of the Bill precludes all our obligations under other international law. If the Opposition really want to incorporate international instruments into our immigration law, they will need to make a far more radical revision of the 1793 Act. That Act provides that it is on 1951 convention grounds that an appeal is exercised under Section 8 against removal. Clause 1 relates specifically and solely to appeals on asylum grounds. It is for that reason that we believe it important to leave it as it is. The example of Colombia which the noble Lord gave a few moments ago confirms that discretion is exercised on the granting of exceptional leave for those applicants who fall outside the 1951 criteria. The question of giving legal effect to the adjudicator's recommendations is to be debated later, as the noble Lord knows, when we reach Amendment No. 48. I hope that Amendment No. 15 will not be pressed.

Lord McIntosh of Haringey

Perhaps I may deal with the last point first. The Minister is right to say that the example that I gave resulted in the person concerned being granted exceptional leave to remain. However, he was not granted that exceptional leave to remain thanks to the Government; he was granted it as a result of judicial review and in the face of that exceptional leave to remain being recommended by the adjudicator, but followed by a refusal from the Home Office. So I do not think that the Minister should use that example to claim credit for the Government's flexibility.

I suppose that the Minister is trying to make me happy by suggesting that I should be much more radical in my attacks on the Bill. However, I would have to be radical going back over a period of 23 years to the 1973 Act. I am not convinced that such a wholesale approach would meet with the approval of the Committee—and still less with the approval of the noble Lord, Lord Renton, if we were to use amendments to legislation now to extend the scope of the 1973 Act. I thought—I still think—I gladly give way to the Minister—

Baroness Blatch

I thank the noble Lord for giving way. I think that we are both wrong. I think that I referred to the 1873 Act while the noble Lord referred to the 1973 Act, whereas we are talking about the 1993 Act.

Lord McIntosh of Haringey

Just to compound the confusion, the Minister actually referred to the 1793 Act. In fact, we are concerned with both the 1971 and the 1993 Acts. It was the 1971 Act which first gave statutory authority to the 1951 convention.

I am grateful for the Minister's confirmation that we take account of the United Nations Convention on Torture and of Article 3 of the European Convention on Human Rights. The Minister had better say that because that is what the Committee decided when it approved Amendment No. 3 last week. When it is printed, it will be part of the Bill that torture is to be treated as a proper reason for seeking asylum and for being granted refugee status.

I do not think that the Committee should be asked to express an opinion on this matter. I could indeed have been more radical in my attack on the Bill, but I think that the point was made by the decision taken by the Committee last week, and I beg leave to withdraw the amendment.

Amendment No. 15, as an amendment to Amendment No. 1, by leave, withdrawn.

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 16: Line 27, at end insert ("or a risk of torture or inhuman or degrading treatment").

The noble Lord said: My noble friend Lord Dubs spoke to this amendment last week when it was grouped with Amendment No. 3 which was approved by the Committee. I beg to move.

Baroness Blatch

It is important that we debate this amendment. The noble Lord, Lord Dubs, did not speak to Amendment No. 16 last week. I have with me the Hansard of that debate which I have read carefully. The noble Lord spoke specifically to the amendment proposed by the right reverend Prelate the Bishop of Liverpool. The whole debate was about Amendment No. 3. Amendment No. 16 was not mentioned until I wound up and I mentioned it simply because it was grouped with Amendment No. 3. Amendment No. 16 is, however, a free-standing amendment. It is not consequential upon Amendment No. 3 and I believe that if the Committee wants to debate it, it should do so. I certainly wish to speak to the amendment.

Lord McIntosh of Haringey

I acknowledge that although Amendment No. 16 was debated last week, it was the Minister who referred to it specifically rather than my noble friend. The amendments were intended to be taken together. If my noble friend had referred to it more specifically, I should have insisted that the two be taken together. In view of the fact that other amendments on torture are to be considered in relation to later clauses, I shall not press the procedural matter now, and I beg leave to withdraw the amendment.

Amendment No. 16, as an amendment to Amendment No. 1, by leave, withdrawn.

Baroness Williams of Crosby moved, as an amendment to Amendment No. 1, Amendment No. 16A: Line 27, at end insert— ("() it does not show a fear of persecution by reason of gender").

The noble Baroness said: The amendment has been tabled partly to learn more about the Government's intentions. I shall move it briefly because we may want to return to the matter in the broader debate on Clause 1 stand part.

Perhaps I may outline briefly why I have tabled the amendment. I refer first to the answer given by the Minister just now. If the Bill keeps closely to a set of criteria upon which the decision as to whether to allow in an asylum seeker is upheld, the issue of whether gender is such a base becomes more important. Perhaps I may say why I believe that this is of such very great importance. In 1951 the list which appears on the face of the Bill was drawn up by the European Convention. I am not trying in any way to amend that convention, but it did not include the issue of gender. That was reasonable at the time because gender would not have been seen as a ground for persecution. Would that that were still so.

I refer to one of the more recent cases to come before the Immigration Appeal Tribunal. It involved a woman in Iran, a financial adviser to a substantial company, who was threatened by a group of fundamentalist Moslems for refusing to wear a veil. She was told that if she refused to wear a veil, she would be treated as a prostitute. She was a Western-educated woman who believed that she was entitled to wear decent and respectable clothes of her own choosing. She was badly beaten in prison and told that if she continued not to wear a veil she would be subject to capital punishment on the ground that she was a prostitute. We were perhaps not aware of such cases in 1951, but alas they are now cropping up regularly, notably in Algeria.

The second reason why I advance the amendment relates to the strong recommendations that were laid down—and accepted by the Government—in the Warburton Report, which, as many Members of the Committee will know, dealt with the systematic use of rape as a weapon of war in Bosnia. Our Government joined other members of the European Community in saying: member States are appalled by these crimes and the inhumanity which marks the present conflict".

The recommendations indicated that refugees who had suffered those extreme forms of assault were entitled to special and careful consideration if they applied for refugee status. That is in the Warburton Report, which is in the Library. At that time throughout the European Union a number of women were accepted as refugees because of the terrible circumstances that they had experienced.

More recently, at the United Nations Fourth World Conference on Women in Beijing, the United Kingdom Government, among many governments, gave their name to the recommendations under the action programme, one of which read: Apply international norms to ensure equal access and equal treatment of women and men in refugee determination procedures and the granting of asylum, including full respect and strict observation of the principle of non-refoulement". That is in paragraph (h) in the section of the United Nations action programme which deals with refugees and women who have been subject to systematic violence. I had the honour and pleasure of seeing Her Majesty's Government strongly support the debates in Beijing, fully recognising the specific dangers to which women were subject very much in the context of their gender.

I fully appreciate that this amendment may not be properly drafted, but I hope that the Minister will not object to it simply on drafting grounds. It would be easy to withdraw it and bring it back under proper drafting procedures at Report stage. At this moment I am simply concerned to establish whether the noble Baroness perceives the special reference to social groups as pertaining to women who suffer on the grounds of their gender unspeakable torture and behaviour. She may be able to give us that response. I am sure she will understand that to describe half the human race as a social group is a little odd. I have tabled this amendment with the intention of finding out how Her Majesty's Government feel about it, with the possibility of bringing it back at a later stage in the passage of this Bill. I beg to move.

3.30 p.m.

Lord Campbell of Alloway

I seek clarification on the amendment. With respect to the noble Baroness, does not the amendment extend the traditional definition under the convention of fear of persecution? If so, what practical purpose does it serve? If there is persecution, under the convention as presently defined it is immaterial whether it relates to a man or a woman. I fail to understand the position. There must be something missing from my appreciation. I cannot see what useful, practical purpose is served by the amendment. I say so with respect and in ignorance.

Lord McIntosh of Haringey

There is something missing from the appreciation of the noble Lord, Lord Campbell of Alloway. The noble Baroness is moving an amendment which adds "by reason of gender"; in other words, if a man or woman is persecuted for the other reasons in sub-paragraph (4)(a) that is not affected. But if a woman in particular is persecuted, not for the other reasons but by reason of gender, that is a good reason for the inclusion. To that extent, although the amendment is probably in the wrong place, I support the principle behind it.

Lord Campbell of Alloway

But if he or she is persecuted by reason of gender, that person is nonetheless persecuted within the meaning of the convention. I still do not see the point.

Baroness Williams of Crosby

There is growing evidence of specific forms of maltreatment of those held in detention in certain countries—I am reluctant to give the details to the Committee—which are specific to the gender of those detained. I can give some inhumane and unpleasant instances. These are forms of persecution that would not be targeted at anybody of a different gender. It is that particular group of actions against individuals that I am anxious to bring within the scope of the Bill, not because I wish to include all women—which would be ludicrous—but because there is substantial evidence of certain kinds of behaviour by states towards women specifically on the ground of gender. I am advised by lawyers who are concerned in this matter that the wording of the existing convention does not deal with those cases.

Baroness Elles

In view of the comments of the noble Baroness, Lady Williams, I believe that a very strong case has been made on this issue. I should like to put a question to my noble friend the Minister. Sub-paragraph (4)(a) includes a list of grounds on which persecution may be feared. In responding, can my noble friend say whether that is an exhaustive list or whether it is necessary to include the word "gender" to ensure that the cases properly raised by the noble Baroness are taken into account? I believe that the drafting and status of that paragraph will help the Government in deciding whether to accept, perhaps in a reworded form, the amendment moved by the noble Baroness.

Lord Avebury

My noble friend is quite right in saying that at the time of the introduction of the 1951 convention the particular forms of persecution suffered by women in many countries were not widely appreciated. She mentioned Iran in particular. I should like to expand upon that, if I may.

It is not the policy of a few rabid fundamentalists in Iran which causes women to be persecuted for not wearing a Hijab, which is the garb that covers the whole of a person's hair and leaves no part of the skin exposed except the hands. This is the policy of the mullahs' government; that is to say, the theocratic state imposed by Ayatollah Khomeini. It dictates that all women are to be dressed in a particular way on penalty of severe punishment, which may sometimes be inflicted on the spot by the religious police. It may also mean that a woman can be taken to prison and given a long sentence, or even be subject to lashes, for behaviour which is considered wrong in a woman but perfectly all right in a man. I believe that that answers the question posed by the noble Lord, Lord Campbell of Alloway.

Why should there be any specific mention of penalties that are applied to women? In states such as Iran there are forms of persecution that do not apply to men. It is not just a question of dress but a question of the status of women in the particular society: their right to employment, their entry into certain disciplines in the universities, their position under the law and their responsibilities within the family. A woman has no rights over her children in Iran. She has no right to become a judge. The head of state must be a man. Everything in the theocratic state of Iran is male-oriented and calculated to keep women in the position of second-class citizens.

In the face of that kind of discrimination, if a woman presents herself at a port of entry in the United Kingdom and claims to have been discriminated against as a woman in Iran, and to have suffered persecution by reason of her gender, I believe that it is perfectly right to grant her asylum on that basis and not stick to the letter of the 1951 convention. I absolutely agree with my noble friend that if we cannot do that by strict adherence to the 1951 convention then it must be spelt out on the face of the Bill.

Earl Russell

I hope that the noble Lord, Lord Campbell of Alloway, will forgive me for saying that he made an interesting point. I mean it. It was interesting. It is a point which was made in this place in 1628. The answer it received then seems to be entirely relevant to today. This place was then considering the Petition of Right which was a declaration of liberties. Someone said: If we should leave any liberty out of this list, does that mean we do not in future enjoy it?". The answer of course was that that was not so; that no list of liberties can possibly be exhaustive, because the types of oppression and injustice which may happen are infinite, and no document can possibly specify them all.

The noble Lord will appreciate that within the principles of the common law there is a great deal of room for adaptation to change. If he considers the change in the applications the common law has made of the word "reasonable" over five or six centuries, that will make the point. So the liberties, as spelt out in the UN convention, must be capable of growth.

It is true, as my noble friends have said, that a high proportion of persecution that takes place in the world today is directed at women by reason of their gender. If the type of persecution that is taking place is changing, we must take account of it. It is not just the cases my noble friend has mentioned, it is the cases of women who wish to leave a violent and dangerous husband. They are in many cases treated worse than they were three or four centuries ago. So, where the type of persecution with which we deal is changing, we must recognise that fact. That is the point to which my noble friend wished to call attention.

Baroness Rawlings

I understand fully what the noble Baroness, Lady Williams, is saying about torture and women, but surely if a woman is badly tortured that will come under "torture". It does not need to come under "women" whatever be the torture—when it is against a woman, she will come under the procedure for asylum because she has been tortured. Any man can be tortured in the way that a woman cannot be tortured. We will not insert an extra provision relating to gender for men because men may be tortured in a way that might not be possible for women. In this case including gender may perhaps be going too wide.

Baroness Blatch

I should like to deal with the amendment in two ways. First, I shall deal with the technical aspect of the amendment. The amendment flies in the face of many amendments tabled by the Opposition today which attempt to restrict the categories of applicant whom the Bill proposes should be considered for certification.

Amendment No. 16A would insert an additional category of asylum claim to which the special appeal procedure can apply into sub-paragraph (4) in Clause 1. I should say at the outset that the amendment is defective because, as drafted, it would enable the certification of all asylum claims which do not show a fear of persecution by reason of gender.

There is a temptation that we should accept the amendment because it would, in a way, foreshorten some of today's debate. It would allow us to certify the vast majority of asylum claims. I know that that cannot be the noble Baroness's intention, and such an indiscriminate extension is not acceptable to the Government. So in an attempt to safeguard one additional category, the truth is that all other categories would be certified. I know that that is not the noble Baroness's intention.

However, the noble Baroness's intention in tabling the amendment is to prevent us certifying a refused claim under sub-paragraph (4)(a) if it alleges persecution on grounds of gender. The amendment is unnecessary, and I shall explain why. If a person shows a fear of persecution, including a fear based on gender grounds, that person would normally have done enough to escape certification under indent (a). That would be the case, for example, if the applicant alleges that his or her human rights will be threatened because of gender. I have to say to the noble Earl, Lord Russell, that my noble friend Lord Campbell of Alloway's understanding of this part of the Bill is right.

That does not of course mean that a gender-based claim would be exempt from a certificate if it is manifestly fraudulent, or meets one of the other criteria under Clause 1. Nor does it mean that such a claim would always succeed. I can assure the Committee that gender is taken into account in the assessment of individual asylum claims where that is relevant. However, our experience suggests that, in practice, few, if any, asylum applications made in the UK turn solely on the question of gender-based persecution. Applications normally involve claims of persecution on the grounds of race or religion or, for example, that a particular group of women faces persecution. Each case is considered on its merits. Each case that has been mentioned during the debate would be properly considered under even the 1951 convention.

The interpretation of a "social group" convention ground has been raised in debate by the noble Baroness. Our approach is not to define in the abstract whether women or men, or any other set of people, might or might not be regarded as a social group. Each individual claim is considered on its merits to determine whether the applicant can demonstrate, in all the circumstances of the case, that he or she has a well-founded fear of persecution in a particular country for any of the 1951 convention reasons. A range of possibilities exists; for example, from treatment of women generally, which may be discriminatory but may not constitute persecution, to a particular group of men or women who, because of the likelihood of persecution, are protected by the terms of the convention. Each set of circumstances, individual or collective, is addressed on its merits.

Gender is taken into account in the assessment of individual asylum claims where that is relevant. The Government believe that it is right that all asylum applications from men and from women should be considered without any discrimination in accordance with the criteria set out in the 1951 UN convention relating to the status of refugees. Each claim is considered on its merits to determine whether the applicant can demonstrate that he or she has a well-founded fear of persecution.

Rape and other forms of sexual violence clearly amount to persecution in the same way as do other acts of severe physical abuse. Whether less prejudicial acts or threats would amount to persecution will depend upon the circumstances of each case. In order to qualify as a refugee, the applicant would need to show that that fear of persecution was well-founded and based on a convention reason.

Women and, indeed, men who do not meet the requirements of the 1951 convention may be granted exceptional leave to remain in the UK if there are compelling humanitarian reasons why they should not be required to leave. The point made by my noble friend Lady Rawlings was right: sexual abuse is not specific to women or gender; men, too, can be sexually abused. There is a great deal of evidence that they are.

If it is serious abuse, it is persecution or torture. The noble Earl, Lord Russell, in his inimitable style, and calling upon his enormous understanding of history to which I defer absolutely, asked whether the list of grounds for persecution in sub-paragraph (4)(a) is exhaustive. The answer is that it is.

Lord Winston

Does the Minister regard separation from one's children unreasonably as being torture? Would that be regarded as being discrimination on the basis of gender? I should like clarification on that point.

Baroness Blatch

I should need to know all the circumstances. That is a broad scenario. It would depend upon why they were separated; what were the conditions of separation; and, frankly, whether it was a man separated from his family or a woman separated from her family. If the degree of persecution were such that it came within the convention, then it would be properly considered as a case within the broad parameters of the convention.

The convention refers to social groups, and I have given some indication that there is considerable interpretation of what constitutes a social group. It is a degree of persecution that would be proper in that case. Without more detail, it is impossible for me to answer that question specifically.

To finish on the point as to whether the list is exhaustive, yes, it is exhaustive. But as I have said, and I hope that I have convinced the Committee, gender can be taken into account where it is relevant to the degree of persecution.

Earl Russell

Before my noble friend replies, perhaps I may thank the Minister for that reply. Perhaps I may say that an amendment may sometimes be unnecessary because it has been moved when, had it not been moved, it might be very necessary indeed.

Baroness Blatch

The debate on the amendment has been most helpful because the issue has concerned all Members of the Committee. I hope that I have been able to convince my noble friend that the issue of gender will be subsumed within the confined restraints of the 1951 convention. The debate has been useful on two counts; first, in explaining that the amendment is defective and, secondly, in trying to assure the Committee that such cases can be taken into account under the criteria set out in the convention.

Baroness Seear

I believe that the Minister said that "social group" could be applied to "gender group", either men or women. If that is so everyone is covered one way or another. What is the real interpretation of "social group"? Does it refer only to women or only to men?

Baroness Blatch

I said that it depends on the case. Someone may claim to have been persecuted and may have a well-founded fear of persecution. The example was given of a woman who refused to wear a veil being deemed a prostitute. The consequence of being a prostitute is that she may lose her life on that ground alone. It could be that a group of people who fall into that category could be constituted as a group. It would depend on the particular case, the particular degree of persecution and the social group; whether they are women or men, whether they belong to a particular group of women or men, or to a particular group of men or women who are persecuted and hounded simply because they are who they are or because they hold certain beliefs.

Baroness Williams of Crosby

I am grateful to the Minister for that full reply. I wish to clarify only one matter. She said that she needed to know exactly what case one might have in mind; perhaps I may give an example. I am somewhat haunted by my visit to the refugee camps in Croatia when evidence first emerged that there was systematic use of rape as an instrument of war. The Minister will remember that the Warburton Report was published soon afterwards. Would it be possible under the Bill to regard, for example, women subjected to repeated rape, in particular women under the age of maturity, by an enemy group as falling within the special social group definition? I was most anxious about the provision because the list appeared to be exclusive. Unless such women qualify as a special social group they will not be covered. That is one of the main reasons why I moved the amendment. Perhaps the Minister will clarify that final point.

Baroness Blatch

I understand that as regards the particular scenario set out by the noble Baroness the answer is yes. Perhaps I may read from Article 33 of the convention. It states: No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom", which is the whole purpose of applying for asylum, would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion". Those are the parameters of the convention and all the examples given by the noble Baroness will fall within them. What would fall to be judged is the degree of the fear of persecution.

Lord Campbell of Alloway

In case there is a Division, perhaps I may assure the noble Baroness that if women are treated in the way she said they were, that would, within my concept, totally come within fear of persecution. My intervention, which was not intended to be discourteous, was based upon some such assumption.

Baroness Williams of Crosby

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

The Chairman of Committees

I must point out to the Committee that if Amendment No. 18 is agreed to I cannot call Amendments Nos. 19 or 20.

Lord Dubs moved, as an amendment to Amendment No. 1, Amendment No. 18: Leave out lines 31 to 39.

The noble Lord said: In moving Amendment No. 18 I shall speak also to Amendments Nos. 19 and 20. Amendments Nos. 18 and 20 increase the rights of asylum seekers who have been recommended for deportation or for removal from this country. Amendment No. 19 is concerned with the rights of asylum seekers who are refused admission to this country at the airports or the seaports. Although the issues are similar there are some differences between them.

Perhaps I may deal first with the issues concerning deportation or removal of asylum seekers and the rights that they would lose under the Bill but would have if the amendments were passed. The problem is that persons living illegally in this country may at some point be recommended for deportation or the Government may wish to remove them. If that happens and the individual is in fear of persecution in his country he loses the right to have his case considered fully and properly because he will be certificated and therefore fast tracked as a result of the process I have described: the individual will have failed to apply for asylum before the deportation or removal proceedings are commenced.

The difficulty is that the individual may have an impeccable claim that he will be persecuted in his own country. Yet he will lose the right to have his case considered as fairly and properly as would have happened had he made an asylum claim before the deportation or removal procedures were initiated.

It is a well established fact that people may be deported for significant or relatively insignificant reasons. I do not condone any criminal offence, but a fairly minor criminal offence may lead to deportation proceedings starting. An individual will then have a lesser right to claim asylum or to have an asylum claim properly considered. That can be most alarming. Let us suppose that the asylum seeker was convicted in his country of the theft of a loaf of bread. I do not condone for one moment theft or criminal behaviour of any kind. However, one must set against that act what might be the most appalling outcome for that individual if he is returned to his own country. The amendment is tabled in order to ensure that such people have the maximum safeguards in terms of being able to exercise their full rights of appeal.

Amendment No. 19 is somewhat different and is concerned with people who arrive in this country and seek admission. If they do not claim asylum at the port of entry they too may be fast tracked. The amendment seeks to add the words "without reasonable explanation".

People arrive at British ports not knowing the detail of our procedures. If they have a visa to enter the country they may believe that that is sufficient and may intend to apply for asylum after admission. That is normal behaviour. Indeed, the United Nations High Commissioner for Refugees issued a statement to that effect in relation to the 1992 Bill in which it was stated: No conclusion with respect to an asylum-seeker's credibility—be it positive or negative—can be drawn from the fact that he has failed to apply forthwith upon arrival to a country". However, the Bill seeks to draw precisely such a conclusion. It seeks to suggest that the asylum seeker's credibility is less and therefore his rights in terms of appeal procedures and time to deal with the various stages of the appeal will be reduced if there was a failure to apply immediately on reaching the port in this country. Indeed, asylum seekers may be apprehensive that if they claim asylum on arriving at Heathrow or Dover, the authorities might remove them immediately from the country. There is then the danger that they may be returned in stages to the country from which they fled and, therefore, face danger.

In that case, they have had the trauma of escaping from a country where they were facing persecution. They are relieved that they have arrived in Britain. They feel that they want first to get into the country. Therefore, with those worries, it is not surprising that people do not make the claim at the point of entry when they meet immigration officials.

Indeed, I have an unreported decision from an Immigration Appeal Tribunal case, Latif Mohammed v. Secretary of State on 1st February 1991. The judgment stated: It seems to us entirely understandable that a potential refugee would think it far preferable to obtain admission before applying for asylum than applying for asylum at the airport". It is to protect the rights of asylum seekers in those two situations that I have spoken to the amendments. I beg to move Amendment No. 18.

4 p.m.

Lord Campbell of Alloway

This amendment creates some severe practical problems. Surely if you have a genuine, real, important fear of persecution, either because you have been persecuted or tortured—and you know jolly well how serious that is—or because you are a member of a social group which has been subjected to such treatment, and you wish to claim asylum, in the ordinary way you should do so on arrival in this country.

The noble Lord quoted an unreported decision. There are all sorts of unreported decisions and all sorts of reported decisions. Some of them make sense and some do not. To my mind, the decision which the noble Lord, Lord Dubs, quoted makes no sense at all. I take the noble Lord's point that the procedures, certainly if they change, may well not be known. But surely that problem can be met in an administrative fashion by drawing to the attention of those who enter their position as regards claiming asylum if they wish to do so. Forms could be produced. There are various ways in which that can be done.

The noble Lord said that credibility is lessened if the claim is made after the person has come in rather than at the time of entry. Inevitably that is so. That is inevitable because if there is an urgent, genuine fear, in the ordinary way you state that when you reach this country.

Baroness Williams of Crosby

I should like to say a few words on Amendment No. 19 which would insert "without reasonable explanation" into the Bill. That would indicate that where a reasonable explanation is given, the issues would be set aside and the case looked at afresh.

I am concerned in particular about that because, like the Government, I appreciate that it is very important to draw a distinction between genuine asylum seekers and those who are not genuine. I might put the line between the two at a very different place from the Government, but of course I recognise that some asylum seekers are not genuine. Some asylum seekers are absolutely genuine. The crucial question facing this Chamber is to try to draw a correct distinction.

Without the addition of the phrase "without reasonable explanation", the Bill will almost certainly exclude the most genuine asylum seekers: those who do not have the benefit of legal advice; those who are not particularly knowledgeable about the procedures and ways of the Immigration Service in this country or, indeed, Europe and therefore have not the faintest idea about how our procedures work. Those people will emerge as refugees or asylum seekers in this country often after having undergone an extremely painful and difficult period of time in which they have been very frightened, even to the point of being frightened of losing their lives.

It seems to me to be wholly unreasonable to expect such a person to go through all the procedures exactly as he should do—and they are very complex procedures; to expect such a person to know that it will help him to put in a claim for asylum the moment he reaches this country; and to expect him to know the complexities of our legislation which, heaven knows, many of us find difficult to follow.

Therefore, I urge the Committee and the Government to consider very carefully the addition of the very limited and simple phrase "without reasonable explanation". That would allow utterly genuine asylum seekers—who often have the worst cases and who do not know our procedures and do not handle them properly—not to be sent back to a country which in many cases has done them great damage before their case has been considered. Therefore, I support strongly Amendment No. 19.

Baroness Gardner of Parkes

I wish to oppose Amendment No. 19. The question of credibility is very much an issue here. The present pattern found by local authorities is that people come to this country on visitors' visas. They move in with supposed friends or relatives who have often given a complete undertaking to be responsible for bearing the entire cost of supporting them. The authorities then find that two days after their arrival, they turn up on the council's doorstep asking to claim housing benefits and any other benefits which can be obtained. I can see that the noble Lord, Lord McIntosh, is looking surprised but I am quoting the experience of London councils which have reported that history to me.

Lord McIntosh of Haringey

I am grateful to the noble Baroness for giving way, but I believe that she is really talking about Clauses 8, 9 and 10 rather than about this amendment.

Baroness Gardner of Parkes

As I understood him, the noble Lord, Lord Dubs, is saying that Amendment No. 19 would mean that people do not have to announce on arrival that they wish to seek asylum. I oppose that. If that is not what he is saying, perhaps I am wrong. But I do not believe that the noble Lord, Lord McIntosh, is right and I am responding to what the noble Lord, Lord Dubs, proposed. Is that correct?

Lord Dubs

Yes, it is. The words that I seek to add to the clause are "without reasonable explanation". Those words apply specifically to people who are refused leave to enter and apply also to deportation and other considerations.

However, I believe that the point which my noble friend Lord McIntosh makes is that later parts of the Bill deal with housing matters. Here we are concerned about the rights of people when they seek to claim asylum. I am concerned that the fast-track procedure weakens their ability to do so effectively.

Baroness Gardner of Parkes

I still believe that we are debating the credibility or lack of credibility of people applying for asylum, whether or not they declare it on arrival. That is certainly the issue which I am addressing.

I consider that the most important issue of the whole Bill is that people should have to declare their position on arrival. That is a tremendous improvement. At present, this country is considered a soft touch in Europe because we do not have nearly such stringent regulations as other countries. I am 100 per cent. behind the genuine asylum seeker, but I am not at all in favour of the so-called economic refugee who wishes to come here.

The noble Baroness, Lady Williams, referred to the words "without reasonable excuse".

Baroness Williams of Crosby

I referred to the words "without reasonable explanation". That is rather different.

Baroness Gardner of Parkes

The words "without reasonable explanation" are even less onerous. Anyone can give an explanation. I sit on an industrial tribunal. There is an extremely heavy onus of proof on an applicant who wishes his case to be considered, even if the application was lodged just one day late. Therefore, the phrase "without reasonable explanation" seems to me to be not nearly definite enough. If we were saying that there had to be a really strong reason—for example, that the person had arrived in such an ill state that he was not able to speak—then I might have some sympathy with the proposal. However, if it is just a case of someone not having thought up his explanation at the time and then having worked it out a few days later, I am afraid that that would not appeal to me. For that reason, I oppose Amendment No. 19.

Lord Avebury

The reason why genuine asylum seekers, of whom there are a great many, do not apply at the port of entry—I take the point made by the noble Baroness about bogus claims; indeed, I am not seeking to defend them—is due to the fact that they wish to obtain proper advice. I believe that the noble Baroness was present in the Chamber when that point was made on the last occasion. Such people are ignorant about our procedures. They arrive at a port of entry, go through the immigration procedures and then consult a solicitor or go to a citizens advice bureau, or whatever other agency is available to them, and ask for an explanation as to how they should present an application for asylum. I do not see how someone in a far-off country, without access to the Immigration Rules or procedures which apply here, could possibly guess the requirements in advance. I give way to the noble Baroness.

Baroness Gardner of Parkes

I am much obliged. Can the noble Lord tell me how such people get here in the first place? Do they not have a visa or some form of entry document when they first arrive? I am sure that they have access to some form of permission to enter the country. Therefore, they have had some advice from someone. I also believe that word gets around pretty quickly from one person to another and that such people would rapidly learn that they had to make such an application.

Lord Avebury

No. It does not happen that way. If people were sufficiently aware of the necessity to make such an application at the port of entry and they had a well-founded case, as many of them do, they would follow the advice given by the noble Baroness and, indeed, by the noble Lord, Lord Campbell of Alloway. However, the noble Lord contradicted himself. He said, first, that everyone should know and that if a person had a genuine case then he would present it at the port of entry. But he then went on to say that, if they did not know, the situation would be corrected by some other means. The noble Lord then suggested the distribution of forms at airports. That indicates that there is a problem involved which even someone as hostile to immigrants generally and to asylum-seekers in particular as the noble Lord, Lord Campbell of Alloway, recognises. Therefore, we must deal with it in some way, either by saying that the person can give a reasonable explanation afterwards as to why he did not announce his intention of applying for asylum at the port of entry or by giving sufficient warning at the port of entry. That is perhaps an alternative that the Government should explore.

I do not go along with the noble Lord who suggested that forms should be distributed to everyone who arrives at Heathrow or Gatwick airport. I say that because there would be a vast number of false positives—that is to say, people who are genuinely coming here for a holiday and who have no intention ever of applying for asylum. However, the noble Lord has produced the germ of an idea. For example, notices could be displayed at the principal places of entry into the United Kingdom warning people of the consequences of the failure to declare their hand at the point when they present themselves to immigration officers, if it is their subsequent intention to apply for asylum. That would be one way to get round the problem identified by the noble Lord who moved the amendment.

There cannot be any doubt that other countries have such provisions. Indeed, I discovered only this weekend that the Turks (who are not particularly liberal in such matters) grant an asylum seeker 30 days in which to make an application. The person then forfeits certain rights at the end of that period. However, in this case, we are proposing to impose very much more severe restrictions on the rights of applicants than even a state like Turkey does which is not renowned for its observance of human rights.

I believe that a serious case has been made. If the Government are not able to address it by acceptance of this particular amendment, they should at least promise to take away and consider the suggestion made by the noble Lord, Lord Campbell of Alloway. Of course, I do not say that that particular device is the ideal solution; but, nevertheless, it has at least put into the mind of the Government the thought that something must be done at the port of entry to safeguard the rights of people entering the country who do not make an application when, in the end, it is their intention to do so.

4.15 p.m.

Baroness Blatch

I hope that Members of the Committee will forgive me for intervening at this point. I believe that there is a great deal of misunderstanding both about this part of the Bill and about the amendments. It just might help if I address what I believe to be the misunderstanding. If noble Lords still wish to comment thereafter, I shall certainly listen to what they have to say.

The noble Lord, Lord Dubs, has misunderstood the effect of the Bill. It does not provide the power to fast track all claims which were not lodged immediately on arrival. It is concerned with those who are refused leave to enter at the port of entry—that is to say, it applies to people who attempt to enter as students or visitors but who are refused entry in that capacity and then claim asylum. So they will already have been considered under the 1971 Act. Judging by what has been said, there appears to be a great deal of misunderstanding.

The removal of paragraph (4)(c) enables the Secretary of State to issue a certificate if the asylum application was submitted after the applicant had been refused leave to enter, recommended for deportation by a court, served with a notice of intention to deport, or notified of his liability to removal as an illegal entrant. My noble friend Lady Gardner of Parkes was right regarding what she thought she heard noble Lords opposite saying about the amendment. In fact, I am saying that their interpretation is wrong. I hope that I shall be able to convince my noble friend that what the Bill has to say in that respect is right.

We have become increasingly concerned about late asylum claims. By this I mean claims lodged in order to fend off removal and frustrate the enforcement of the immigration rules. Perhaps I may give the Committee some examples of this form of abuse. There are people who have been here illegally, sometimes for years, who are then apprehended by the immigration service and lodge an asylum claim just as they are about to be removed. Others seek leave to enter as a student or a visitor, for example, and only claim asylum when their application for leave to enter is refused and removal directions are set. The intention is to be able to resolve quickly claims of that sort which are manifestly lodged in order to delay removal action, rather than because the applicant has a well-founded fear of persecution.

Let me make clear, however, that this provision cannot apply to a claim simply because it is made after entry. It will not apply, for example, to someone who enters illegally or overstays his leave but who claims asylum before we take steps to remove him. Late claims will still be considered on their merits in the usual way and there will still be an appeal. But if they prove to be unfounded and asylum is refused, the Bill will enable us to apply the accelerated appeal procedure.

I have listened carefully to the arguments advanced for deleting our proposal to permit certification of claims lodged only after a court recommends deportation following a criminal conviction. It has been suggested that a criminal conviction here might put a person at risk of persecution at home. I am not persuaded—certainly not by what has been said in the course of today's debate. It is exceedingly unlikely that a criminal conviction in this country could form a legitimate convention basis for an asylum claim. But, in any event, if a claim made after such a conviction was found to be valid, asylum would be granted. In other words, if the case for asylum was a good one and came within the convention, then of course it would be granted and would not be thwarted by this measure. Similarly, if there are genuine humanitarian reasons why removal should not take place, exceptional leave would be awarded. But where it is found that claims made in such circumstances are not well founded, it is entirely appropriate that we should be able to apply the accelerated appeal procedure.

It has been proposed that we should provide an exception where the applicant gives a "reasonable explanation" for his failure to claim earlier. We think that that is unnecessary and undesirable. In the Bill as drafted, a certificate would only be available where the asylum claim has been fully considered and rejected. If it is found to be a valid claim, asylum or exceptional leave will be granted, despite the circumstances in which the claim was submitted. But if the claim is not well founded, the fact that it was submitted only after the commencement of removal proceedings or the refusal of leave to enter, will almost invariably justify a certificate. We need to send a clear signal that abuse of the asylum procedures in order to frustrate enforcement of our immigration laws will be met robustly.

The late claim provision in Clause 1 indent(c), does not apply to claims simply because the application was not made at the port of arrival. The Bill is clear on the point. The provisions only apply to applications lodged to stave off removal action. That is claims lodged after the applicant has been refused leave to enter and notified of his liability to deportation or his liability to removal as an illegal immigrant. Therefore, we are concerned because it is a growing form of abuse. It is entirely right that the Secretary of State should be able to certify claims lodged in this manner. It is responsible for much of the backlog in the system. I should have thought that noble Lords opposite would realise that this form of abuse is not acceptable. So long as there is a safeguard for genuine and well founded cases of people who have an opportunity to put their case within the system, I hope that our remedy for this kind of abuse in the Bill will be supported by Members of the Committee opposite.

Earl Russell

I recommend to the Government the practice of the noble and learned Lord the Lord Chancellor. During the passage of the Child Support Bill 1991, a provision put a time limit of 28 days on appeals under a particular clause. I put down an amendment without reasonable explanation. It was one of those nights when it seemed as if the House would sit until 3 a.m., so I did not move it. However, when we reached the next stage the noble and learned Lord had incorporated it in the Bill. He had accepted it without so much as my moving it. That was a quite unparalleled act of generosity to which I should be glad to find a parallel. I recommend to the Government the wording of their own amendment, Amendment No. 1. Lines 20 and 21 deal with the absence of a passport and there are the words, without giving a reasonable explanation". The noble Baroness said a great deal about abuse. Everyone is against abuse. The noble Baroness is against abuse but in trying to rule out the words "without reasonable explanation" she strengthened my suspicion that the fast-tracking of a case involves an element of prejudging the merits of the issue, or at least there is a risk that it might.

That is a great argument in reply to the noble Baroness, Lady Gardner of Parks, on claiming at the point of entry. There are six or seven places in the Bill where we could insert the words. I suggest that we join issue on that argument on the question of whether Clause 1 stand part.

Lord Dubs

I emphasise the point just made that the expression "without reasonable explanation" is already on the face of the Bill. It is already the wording that the Government used in relation to a person who, failed to produce a passport without giving a reasonable explanation for his failure to do so". All we ask for in Amendment No. 19 is that the same concept of a reasonable explanation should be applied in the case of persons covered by Clause 1, paragraph 5(4)(c), particularly those entering the country as well as some of the other categories. It seems to me that it is not breaching the Government's policy to suggest the proviso that an asylum seeker should give a reasonable explanation. That is all we ask. If the asylum seeker cannot give a reasonable explanation, then his application would have to be fast-tracked. It seems to be a reasonable proposal.

I wish to deal with some of the other points made. Perhaps I did not make myself clear or the Minister may have misunderstood me. I was not suggesting that a criminal conviction would itself lead to an asylum claim. I suggested that an individual might fear persecution in his or her own country, be stupid enough to commit a criminal offence, be deported or threatened with deportation as a result and lose his or her right to have the asylum claim considered as fully as possible because of the threat of deportation.

I am also aware that people arrive here as visitors and students. However, as we discussed the other day, we may demand visas of a country, the nationals of most countries from which asylum seekers come have to have visas, but it is not possible to enter this country with a visa to become an asylum seeker. With the exception of the Bosnians and the Vietnamese, such visas are not granted by this country. Therefore, as applies to most west European countries, the only way in which an individual can arrive here and seek safety is through obtaining a visa as a visitor or student. Of course, that means applying for a visa on grounds other than those on which the person might wish to seek safety here—namely, as an asylum seeker. It is a catch-22 situation; there is no way out.

Therefore, I argue that an honest individual must do as we discussed last time, he must apply for a visa as a visitor or a student. He may arrive here and say: "Let me pause for breath, let me seek proper advice as to how to make my asylum claim. First, let me enter the country and then make my asylum claim". That person is then faced with the difficulty that he is in breach of the provision. All we argue is that we should not return to the present position but go part of the way towards the present position. That is all. I contend that Amendment No. 19 is entirely reasonable, as are all the amendments. The words "without reasonable explanation" are surely such that under any fair-minded system in any fair-minded country one would say: "Yes, those are the provisions to which you must adhere. But if you can provide a reasonable explanation, well and good, we will accept it". That is all we ask for in the amendment.

Baroness Blatch

Before the noble Lord decides what he wishes to do about the amendment, I say what he said sounds reasonable, but I invite the Committee to consider this point. It is true that we propose to provide a "reasonable explanation" safeguard in the paragraph dealing with undocumented passengers. The reason we do that is that we accept that there are some circumstances in which an applicant could reach this country without travel documents. But it is more difficult to conceive of a reasonable explanation for a late asylum claim made in the circumstances defined by indent (c). We therefore resist including in the statute a "reasonable explanation" caveat which would unnecessarily complicate appeal hearings. My noble friend Lady Gardner made some relevant points.

The case which we are discussing is where asylum is claimed on the point of removal, following refusal under the 1971 Act, when the case has been heard, on the point of notification of deportation under Section 3(5) of the Act and on the point of notification of removal under paragraph 9 of Schedule 2 to the Act. Those provisions are commonly abused and we have evidence of the extent of that abuse. Given that the asylum applications will he given substantive consideration and an appeal under the accelerated procedure, we think it reasonable to address that form of abuse in this way. I hope that the Committee will not accept the amendment.

Lord Dubs

I am disappointed. Perhaps I may restate the proposition. All we argue is that the words "without reasonable explanation" should be added. If the individual concerned cannot produce a reasonable explanation, then the provisions of the Bill would apply. That is, the fast-track procedure. The individual may be able to produce a reasonable explanation such as where a mother and baby arrive at the airport and the baby is tired or ill. Would anyone wish to go through the complications of claiming asylum then at the airport? Most people who arrive seeking asylum speak little or no English. When I have travelled to distant countries where I do not understand a word of the language, after a lengthy flight and arriving for legitimate tourist or business purposes, I find it difficult to deal with immigration procedures. I may not observe all the notices on the walls.

I suggest to the Committee that it is normal human behaviour that after a long flight one may be confused and have good reason not to make a claim on arrival. If such good reason can be demonstrated under the wording "without reasonable explanation", all well and good. That is all we seek. It is a reasonable request and a modest amendment.

Baroness Blatch

It is necessary to respond again to the reason that the noble Lord has given. It again sounds reasonable.

We are referring to the difference between practice and administration, and being humane in the way in which people are refused entry, deported and handled. The noble Lord makes a real point. However, let me give a reason that I believe will attract the Committee. There may be an uprising in the country to which we would be sending someone, and we believe that there are good reasons for considering an asylum application in those cases. We are discussing putting a provision on the face of the Bill giving everyone the opportunity to exercise delay of the procedure. In practice, if a convincing explanation were provided, we would not certify. It would be only in exceptional circumstances that we would not certify—for example, where the claim is based on a coup which post-dates the start of the enforcement action. The main disadvantage of a reasonable explanation proviso is that it would dent the deterrent impact of the late claims provision.

If noble Lords do not wish to rid the Bill of this abuse, they will seek to test the opinion of the House. However, this is an abuse; and in practice the Government are totally cognizant of the examples that the noble Lord gave. Such cases would be handled in a perfectly appropriate and humane way.

4.30 p.m.

Baroness Gardner of Parkes

Perhaps I may ask the noble Lord for an explanation on a point he made. He stated that in applying for a visa people would not be willing to disclose the reason. They may well have to apply for a student or a visitor visa. Does he mean that that would be an acceptable explanation: that one applies for a visa under false pretences so that one can then apply for asylum?

Lord Dubs

Perhaps I may deal with the noble Baroness's question first. I simply reminded the Committee of the basis on which visas are issued, the reasons for which they are issued and the difficulties facing someone who is in fear of persecution in his own country and as regards how he gains a visa to enter this country or to many Western European countries. I simply said that the main way to gain a visa is to apply as a visitor or a student. That is the way in which asylum seekers enter a safe country; otherwise they have no reason for making the journey.

I do not say that that in itself is a reason for exempting those applicants from the provisions of the Bill as drafted. I simply suggest that there may be other reasons known to the individuals, personal to them, which would represent a reasonable explanation. After all, they still have to have their case considered. They still have to demonstrate their case under the 1951 Geneva Convention. That is quite reasonable. I do not want them to be "fast tracked" in such a way as to lose such rights as they may have.

I turn now to the point that the Minister made. I think that she was suggesting a small concession. However, I contend that it is too small.

Baroness Blatch

I was not suggesting a concession. I was explaining how the procedure works in practice. If there are good reasons why applicants should not be deported, if there are good reasons why they should be given the formal track rather than the fast track procedure, in practice that is exactly what happens. We are against putting on the face of the Bill a right that a reasonable explanation would have to be considered, which would delay the process. Because this is such an area of abuse, we believe that the genuine cases are caught by the way in which we operate in practice. What the noble Lord is insisting should go on the face of the Bill is tantamount to a licence to delay and thwart deportation in genuine cases.

We are talking here of people claiming asylum on the point of deportation, on the point of removal. That is what we say is the abuse. That is what is addressed by the Bill.

Earl Russell

Before the noble Baroness sits down, can she tell us how she knows that it is an abuse before she has heard the evidence?

Baroness Blatch

There is a great deal of recorded evidence of people who have sought asylum on the very point of removal. Students come with permission to stay, and at the end of their course they have to be returned. At the point of returning they seek asylum. Others come for other reasons, overstay, and at the point of removal they suddenly seek asylum. There are those who have been through the 1971 Act immigration procedures and at the point of refusal, where they are deemed to be removed, they then seek asylum. That is the point of abuse, and it is well catalogued.

Earl Russell

But how does the noble Baroness know, before examining the evidence, that that case before her, which is individual, is in point? Perhaps I may remind her of a remark once made by the noble and learned Lord, Lord Ackner: that a man apparently lying dead drunk in a gutter may in fact be a diabetic who has run out of insulin.

Baroness Blatch

I can answer that question too. Let me take the example that I gave of the student who completes a course. He is due to return to another country. He refuses to go at the point of deportation and seeks asylum. The proposition in the Bill is that he should be put through the accelerated procedure. The adjudicator hears the case. If in the case put to the adjudicator there is good reason why he should not have received a certificate in the first place, the adjudicator could set the certificate aside. All I am saying is that those applicants will have their case heard. They will have an appeal right. Therefore, if they have good reason, it will be put before the adjudicator.

Lord Avebury

In that case, will the noble Baroness agree to an amendment, tabled perhaps at Report stage, to sub-paragraph (6) which would make it plain that the adjudicator has the power to set the procedure aside? Sub-paragraph (6) states that, If…the…adjudicator agrees that the claim is one to which sub-paragraph (2)(3) or (4) applies … section 20(1) shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal". The provision does not state that the adjudicator has the power to set that matter aside.

Lord Campbell of Alloway

Perhaps I may suggest to the noble Earl, Lord Russell, that this is not a matter of histrionics. It is a matter of a reasoned administration to seek to curtail manifest abuse, on which all parties, all Members of the Committee, would be in agreement. When the noble Earl says that we are pre-empting, prejudging the situation, with respect, is that quite fair? It is the entrant who applies after entry who, by a much delayed judgment, then seeks this accommodation. The noble Earl does not seem to appreciate that we are not seeking to stop or in any way impede genuine asylum seekers. But, broadly speaking, something has to be done to stop what has become a manifest abuse.

Baroness Blatch

My noble friend is right. We know that there are cases of abuse because they are all denied asylum and the decision on appeal has been upheld.

Perhaps I may say to the noble Lord, Lord Avebury, and the noble Earl, Lord Russell, that we do examine the evidence. If the evidence supports the application for asylum, asylum is granted. I have given that assurance to the Committee. All we are saying is that Clause 1, the fast track, comes into play only after that decision has been made—in other words, if the view of the substantive consideration and the appeal is that this is not a case for asylum. It is only that point of the procedure that we are discussing. I simply say that it is not an arbitrary or a cursory examination. The case is properly heard.

Baroness Williams of Crosby

I certainly do not want to delay the Committee further. The noble Baroness made the point that there is a real case and I understand that. However, I wonder whether she will consider, possibly on Report, examining further the remarks of my noble friend Lord Avebury, in this sense only. If sub-paragraph (6) in Clause 1 goes through and the further appeal stage is removed, the concern expressed by the noble Lord, Lord Dubs, and others is simply whether, if circumstances have so far changed, we can be assured that, if the asylum seeker advances a reasonable case—in the sections to which she referred most will not, but there may be exceptions—there is an opportunity for such exceptions to be considered.

Baroness Blatch

I have given the Committee an assurance that if there are good grounds for an application to be considered on the normal track rather than the fast track, in practice that is exactly what will happen. What I cannot do is accede to the amendments. We know that this is an area of abuse. In regard to the accelerated appeals procedure, taking all the Opposition amendments together, including removing Clause 1, it is clear that they do not wish to address some of the worst excesses of the system. Amendments have been tabled to remove Clause 1; amendments have been tabled to remove various parts of Clause 1. I am taking all the amendments together.

We believe that these measures are necessary. There is a particular need for an accelerated procedure. It allows substantive consideration of each case and there is an appeals system. (Those on the normal track then go on to a third stage, a tribunal.) Even at the substantive stage it is possible to decide that the application should go by the normal track rather than the fast track. The case worker makes the decision as to whether Clause 1 is invoked.

We believe the measures are right: first, to address the volume of applicants; secondly, to address abuse; thirdly, for good race relations in this country; and to give proper, and speedier, consideration to genuine asylum seekers. Those are the reasons for including them in the Bill. We know that noble Lords opposite do not wish even to see Clause 1 remain. We believe it is an important part of the Bill.

Lord McIntosh of Haringey

We cannot let that pass. If we accept the argument that the Minister has just made, there is no point at all in having this House as a revising Chamber. As a revising Chamber, we examine every single part of each clause of a Bill and consider whether we can make helpful amendments. We have a fallback position whereby we can say that if we have not persuaded the House (or Committee) of the justice of individual amendments, we will seek a debate and possibly even a Division on the issue of whether the clause shall stand part. But the Minister cannot simply add together all the amendments on a clause and the debate on clause stand part and say that, taken together, they all add up to root-and-branch opposition to the Bill. That is not the case. The position of the Opposition is, and always has been, that we examine the text of a Bill, treating each part individually and carefully, place by place, and make each argument at the appropriate time. I protest against the attitude that the Minister is now taking to the role of the Opposition and to this House as a revising Chamber.

Earl Russell

I also protest against the Minister's attempt to foist upon us her belief that this Bill does anything to remedy abuses.

Lord Dubs

My Lords, I return briefly to Amendments Nos. 18, 19 and 20. Nobody condones abuse of the system. The Minister gave examples where the Government would, as it were, try to meet particularly difficult circumstances—for example, if there had been a coup in the country from which an asylum seeker came. Such examples are not on the face of the Bill. There may be concessions that the Secretary of State might make in individual cases, but they are not on the face of the Bill. When we are talking about the rights of individuals, it is proper that those rights should be stated on the face of the legislation.

The rights of individual asylum seekers not to be sent back to face possible torture, imprisonment and death are absolutely paramount. The reason we are concerned with the procedures that determine whether an individual is to be sent back is that they may determine life or death for that individual. I know from my time at the Refugee Council of instances of persons being returned to countries where there was turmoil and persecution, and those individuals were never heard of again. That is why the rights of each individual are so important. The words "without reasonable explanation" which we seek to add to the Bill surely represent the minimum that we could say on behalf of the rights of individuals. It is a minimum additional protection which I contend is reasonable.

I should like to test the opinion of the House on Amendment No. 19. I therefore beg leave to withdraw Amendment No. 18.

Amendment No. 18, as an amendment to Amendment No. 1, by leave, withdrawn.

Lord Dubs moved, as an amendment to Amendment No. 1, Amendment No. 19: Line 31, after ("made") insert ("without reasonable explanation").

The noble Lord said: I beg to move.

4.46 p.m.

On Question, Whether the said amendment (No. 19, as an amendment to Amendment No. 1) shall be agreed to?

Their Lordships divided: Contents, 112; Not-Contents, 170.

Division No. 1
Acton, L. Gould of Potternewton, B. [Teller]
Addington, L. Graham of Edmonton, L.
Ashley of Stoke, L. Grey, E.
Avebury, L. Halsbury, E.
Barnett, L. Harris of Greenwich, L.
Birik, B. Haskel, L.
Blackstone, B. Hayman, B.
Borrie, L. Henderson of Brompton, L.
Bristol, Bp. Hilton of Eggardon, B.
Broadbridge, L. Hollis of Heigham, B.
Bruce of Donington, L. Howell, L.
Canterbury, Abp. Howie of Troon, L.
Carmichael of Kelvingrove, L. Hughes, L.
Carter, L. Hylton, L.
Chester, Bp. Jay of Paddington, B.
Chichester, Bp. Jeger, B.
Chorley, L. Jenkins of Hillhead, L.
Cledwyn of Penrhos, L. Jenkins of Putney, L.
Clinton-Davis, L. Kilbracken, L.
Cocks of Hartcliffe, L. Kirkhill, L.
Crook, L. Lincoln, Bp.
Cudlipp, L. Lockwood, B.
David, B. Longford, E.
Dean of Beswick, L. Lovell-Davis, L.
Dean of Thornton-le-Fylde, B. McIntosh of Haringey, L.
Desai, L. Mackie of Benshie, L.
Diamond, L McNair, L.
Donaldson of Kingsbridge, L. Masham of Ilton, B.
Donoughue, L. Mason of Barnsley, L.
Dormand of Easington, L. Mayhew, L.
Dubs, L. Merlyn-Rees, L.
Ewing of Kirkford, L Milner of Leeds, L.
Falkender, B. Molloy, L.
Falkland, V. Monkswell, L.
Fisher of Rednal, B. Morris of Kenwood, L.
Fitt, L. Nicol, B.
Gallacher, L. Ogmore, L.
Geraint, L. Palmer, L.
Gladwin of Clee, L. Peston, L.
Glenamara, L. Richard, L.
Ripon, Bp. Stedman, B.
Robertson of Oakridge, L. Stoddart of Swindon, L.
Robson of Kiddington, B. Strabolgi, L.
Rochester, L. Taylor of Gryfe, L.
Rodgers of Quarry Bank, L. Thurlow, L.
Runcie, L. Tope, L.
Russell, E [Teller.] Tordoff, L.
Sainsbury, L. Turner of Camden, B.
Sandwich, E. Wallace of Saltaire, L.
Seear, B. Wedderburn of Charlton, L.
Sefton of Garston, L. White, B.
Serota, B. Wigoder, L.
Sewel, L. Williams of Crosby, B.
Shepherd, L. Williams of Elvel, L.
Simon of Glaisdale, L. Williams of Mostyn, L.
Stallard, L. Winston, L.
Aberdare, L. Elton, L.
Abinger, L. Erne, E.
Ackner, L. Exmouth,V.
Addison, V. Finsberg, L.
Ailsa, M. Forbes, L.
Aldington, L. Fraser of Kilmorack, L.
Alexander of Tunis, E. Gainford, L.
Allenby of Megiddo, V. Gainsborough, E.
Ampthill, L. Gardner of Parkes, B.
Archer of Weston-Super-Mare, L. Geddes, L.
Arran, E. Gisborough, L.
Balfour, E. Goold, L.
Barber of Tewkesbury, L. Goschen, V.
Belhaven and Stenton, L. Gray of Contin, L.
Blake, L. Grimston of Westbury, L.
Blaker, L. Harding of Petherton, L.
Blatch, B. Hardinge of Penshurst, L.
Boardman, L. Hardwicke, E.
Bowness, L. Harmsworth, L.
Boyd-Carpenter, L. Henley, L.
Brentford, V. HolmPatrick, L.
Bridge of Harwich, L. Hothfield, L.
Brougham and Vaux, L. Howe, E.
Burnham, L. Hylton-Foster, B.
Butterfield, L. Inchyra, L.
Butterworth, L. Inglewood, L.
Cadman, L. Ingrow, L.
Caithness, E. Kenilworth, L.
Campbell of Alloway, L. Kimball, L.
Campbell of Croy, L. Kingsland, L.
Carnarvon, E. Kitchener, E.
Carnegy of Lour, B. Knollys, V.
Carnock, L. Knutsford, V.
Chalker of Wallasey, B. Lane of Horsell, L.
Charteris of Amisfield, L. Lauderdale, E.
Chelmsford, V. Lindsay, E.
Chesham, L. [Teller.] Lindsey and Abingdon, E
Clanwilliam, E. Liverpool, E.
Clark of Kempston, L. Long, V.
Courtown, E. Lucas, L.
Cranborne, V. [Lord Privy Seal.] Lucas of Chilworth, L.
Crawshaw, L. Lytton, E.
Crickhowell, L. McColl of Dulwich, L.
Cumberlege, B. McConnell, L.
De L'Isle, V. Mackay of Ardbrecknish, L.
Dean of Harptree, L. Mackay of Clashfern, L. [Lord Chancellor.]
Deedes, L.
Demon of Wakefield, B. Mackay of Drumadoon, L.
Dilhorne, V. Marlesford, L.
Dixon-Smith, L. Massereene and Ferrard, V.
Donegall, M. Merrivale, L.
Dundonald, E. Mersey, V.
Eden of Winton, L. Miller of Hendon, B.
Elibank, L. Milverton, L.
Ellenborough, L. Monk Bretton, L.
Elles, B. Montgomery of Alamein, V
Elliott of Morpeth, L. Mottistone, L.
Mountevans, L. Sainsbury of Preston Candover, L.
Mowbray and Stourton, L. Saltoun of Abernethy, Ly.
Munster, E. Sandford, L.
Murton of Lindisfarne, L. Seccombe, B.
Newall, L. Sharples, B.
Norrie, L. Shaw of Northstead, L.
Northesk, E. Sherfield, L.
O'Cathain, B. Shrewsbury, E.
Oppenheim-Barnes, B. Stewartby, L.
Orkney, E. Stockton, E.
Orr-Ewing, L. Stodart of Leaston, L.
Oxfuird, V. Strange, B.
Park of Monmouth, B. Strathcarron, L.
Pearson of Rannoch, L. Strathclyde, L. [Teller.]
Peel, E. Sudeley, L.
Swinfen, L.
Pender, L. Tebbit, L.
Peyton of Yeovil, L. Teynham, L.
Pilkington of Oxenford, L. Thomas of Gwydir, L.
Platt of Writtle, B. Trumpington, B.
Prentice, L. Ullswater, V.
Quinton, L. Wade of Chorlton, L.
Rankeillour, L. Westbury, L.
Rawlings, B. Whitelaw, V.
Rees, L. Wilberforce, L.
Renfrew of Kaimsthorn, L. Wise, L.
Renton, L. Wolfson, L.
Renwick, L. Wynford, L.
Romney, E. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.55 p.m.

[Amendments Nos. 20 and 21, as amendments to Amendment No. 1, not moved.]

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 22: Line 42, leave out ("is") and insert ("has been certified by an Adjudicator to be").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 24. When dealing with these amendments, it is necessary to say a word about the history of appeals to the Immigration Appeal Tribunal. Until the 1993 Act, there could be a further appeal to the Immigration Appeal Tribunal if there had been an error in law.

Let me remind those who do not remember the passage of that Act that it had two effects. First, it denied that further right of appeal to cases which were, in the words of the Act, "without foundation". But, at the same time, if the Home Office lost a case which was deemed to be without foundation, it allowed the Home Office still the right to appeal. In other words, the abolition of the right to appeal in certain respects was one sided in that the abolition applied only to applicants—appellants—and not to the Secretary of State. Not surprisingly, the result was an increase in the number of judicial reviews, which I am sure the Committee will agree is, in itself, whatever the reason, undesirable.

What is now proposed in the Bill is that a much wider range of fast-track applicants—those defined in sub-paragraphs (2), (3) and (4) in new Clause 1—under the terms of sub-paragraph (6) should be denied the right to appeal to the Immigration Appeal Tribunal. I want to suggest to the Committee that because that is so much wider a basis of exclusion and because still the Secretary of State will not lose that right of appeal, it would be wrong to extend the provisions as widely as is proposed in sub-paragraphs (2), (3) and (4).

Therefore, the effect of Amendment No. 22 is to say that what are said to be "frivolous or vexatious" claims should have to be certified as such by the adjudicator. Amendment No. 24 ensures that the right of appeal to the Immigration Appeal Tribunal should apply, except to cases which have been certified by an adjudicator to be "frivolous or vexatious". In other words, we go very closely back to the position under the 1993 Act so far as that aspect is concerned.

The arguments for changing the position from the 1993 Act have been made in public by Ministers and were rehearsed in detail during the earlier stages of the Bill in another place. As we know, the fast track procedure is to apply to applicants from countries on the designated list, applicants under sub-paragraph (3) who fail the different passport tests and applicants under sub-paragraph (4) who fail a whole range of tests, including the test of being "manifestly fraudulent" or the test of being "frivolous or vexatious".

What difference does this aspect of the clause make? It is not just a matter of the appeal to the Immigration Appeal Tribunal; it is also a matter of the time allowed for the grounds of appeal to be stated, which is reduced to five working days. We know from the evidence of applications in recent months and years that a high proportion of cases which come to the special adjudicators would fall within the widened provisions of Clause 1. Indeed, until now there has been the provision that the Immigration Appeal Tribunal would allow a reference back to an adjudicator for rehearing and that 70 per cent. of Immigration Appeal Tribunal cases in 1994 made a reference back in that way.

Clearly the Immigration Appeal Tribunal has a significant effect. It has been referring cases back for further hearing; it has been indicating that the processes of the original application and of the appeal are defective in a significant number of cases and therefore that the work of the tribunal is of considerable importance in assuring justice in the consideration of asylum applications.

Therefore, if the Immigration Appeal Tribunal does a good job—as is shown by the facts—and if the effect of that is to reduce drastically the number of people who can avail themselves of the service of the tribunal, something must be wrong somewhere. It must be the case that a considerable number of people who would, if their appeals were heard by the Immigration Appeal Tribunal, have their cases referred back and eventually, in a significant number of cases presumably, gain admission and refugee status or exceptional leave to remain, will no longer be able to do so. For that reason in these two amendments it is necessary to attempt to restrict the denial of access to the Immigration Appeal Tribunal to those cases which are frivolous and vexatious and which have been certified as such by the adjudicator. I beg to move.

5 p.m.

Earl Russell

We are all wrong sometimes. I remember particularly one occasion when I rose in this Chamber and started speaking with great impassioned eloquence to the wrong amendment. I was rescued expeditiously and effectively by my noble friend Lady Williams of Crosby.

The fact that we can all make mistakes is the fundamental ground of the right of appeal. It is especially true in matters of law, and immigration law is extremely complex. It is in a state of perpetual Heraclitean flux. The possibility of error is always there.

One of the crucial roles of the Immigration Appeal Tribunal is to correct errors on points of law. In 1994 it corrected 270 appeals against the special adjudicator's dismissal of an asylum appeal; 200 of those were either allowed or remitted back for rehearing. That is to say, the tribunal corrected 200 errors of law in one year. That is a lot of errors of law. In a precedent-based system, an uncorrected error of law is capable of having a multiplying effect and affecting the determination of many subsequent cases. The keeping up of a body of case law in an area of this magnitude is extremely important. If there were no other reason, that would be a good reason for accepting the amendment.

It is important also not to be too certain that one is right at the first hearing of a case. I recommend to the Government the spirit shown in the case of a puisne judge whose children observed case after case of champagne being brought into the house. They said, "Mummy, what is all that for?" She replied, "Daddy has been upheld in the appeal court". That is the sort of surprise we should all be humble enough to feel.

Baroness Blatch

This is another amendment designed completely to emasculate Clause 1.

Under the special appeal procedure, the Secretary of State can issue a certificate if, having considered the claim, he considers it to be without foundation. The certificate has two effects: first, the applicant has less time in which to give notice of his appeal, and the appeal must be heard quickly; secondly, the appellant cannot seek leave to appeal to the Immigration Appeal Tribunal unless the adjudicator overturns the certificate. Clause 1 does not change the nature of the special appeal procedure, but makes it available in a wider range of cases where the application is considered to be manifestly unfounded.

The effect of Amendment No. 24 to sub-paragraph (6) would be to restore access to the tribunal in almost all certified cases. The tribunal would be excluded only in cases which satisfied the test of being frivolous or vexatious—a criterion which case law has restricted to a very small number of claims, such as those which merely repeat earlier claims or which make no reference to asylum.

Denial of access to the tribunal is an important part of the benefit which the appeal system derives from the accelerated procedure. It reduces the number of applications for leave to appeal which the tribunal is required to consider. It means that the applicant has exhausted his appeal after the adjudication and can be removed immediately, rather than after a further delay while an application is made for leave to appeal to the tribunal. And it contributes to the overall signal which the Bill sends to would-be asylum seekers that manifestly unfounded claims will be dealt with robustly.

I do not accept the argument that access to the tribunal should always be a possibility as a long-stop safeguard. I remind the Committee of the safeguards that the Bill will leave in place for cases covered by Clause 1. First, asylum claims cannot be certified until after they have been considered substantively in the normal way. All applicants are invited to an interview, and all are given an opportunity to make additional representations afterwards. All claims will still be considered substantively and granted asylum or exceptional leave to remain where warranted. Those refused will still receive a letter setting out the reasons for refusal. And all will still have an appeal to an adjudicator.

Adjudicators are of course experienced members of the legal profession appointed by the Lord Chancellor and wholly independent of the Home Office. Furthermore, if the adjudicator upholds the refusal of asylum but does not agree that the certificate was correctly issued, he can overturn it and thereby restore the appellant's opportunity to seek leave to appeal to the tribunal. This is what would happen, for example, if the adjudicator agreed that the asylum claim was unfounded but did not agree with the Secretary of State's certificate asserting that the claim was manifestly fraudulent.

There seems little point in having an accelerated appeal procedure if we are not even prepared to reduce the normal three-tier system of consideration by the Secretary of State, the adjudicator and the tribunal to a two-tier one. I should also say that Amendment No. 22 is defective. It would require the Secretary of State to certify in advance of the appeal that in his opinion the adjudicator has certified that the claim is frivolous or vexatious. That is obviously nonsensical, since the Secretary of State cannot attest to an appeal determination which has not yet taken place.

It has been argued that most of the tribunal's determinations result in remittal to the adjudicator for a rehearing so that errors can be corrected. It was suggested also that removing access to the tribunal will result in such errors going uncorrected. Concern was expressed that the Bill will result in the loss of the tribunal's role in maintaining the quality of asylum case law. Those concerns are greatly exaggerated. The majority of applications to the tribunal result either in leave to appeal being refused or in the appeal being dismissed after a hearing. A small proportion result in the case being remitted back to an adjudicator, but in our experience the great majority of such remittals result in the refusal of asylum being upheld. Only a tiny proportion result in an appeal being allowed by the tribunal. In those circumstances, I hope the noble Lord will not press the amendment.

Earl Russell

The noble Baroness might with profit look at the judgment of Mr. Justice Hidden last week in the case of ex parte Bostam. I pay tribute to the work done by the special adjudicators but, inevitably, they differ from each other from time to time. On the issue of safe third countries, they differ quite substantially. If there is no provision for calling in the Immigration Appeal Tribunal, there could be some trouble in reconciling these variations between people who are of equal status.

I wish to make one other point to the noble Baroness. Before she uses words like "frivolous" and "without foundation" with quite such sublime confidence as she has done today, I would ask her to look over debates in this House in the past few years and at the occasions when she has described arguments from this side of the House as being either without foundation or frivolous and then to ask herself how many of them have subsequently been accepted by Her Majesty's Government.

Baroness Blatch

I take exception to the accusation that the noble Earl has made of me. I was not being light-hearted. The determination as to whether an application is vexatious is not my decision; it is that of the adjudicator. So I hope the noble Earl does not believe I am treating it lightly. I also hope that the noble Earl will agree that vexatious cases should be accelerated. We are saying that, not only for those cases but for those cases that are manifestly unfounded, it is right that an accelerated procedure should be considered.

Earl Russell

I shall willingly and eagerly acquit the noble Baroness of the charge of being light-hearted. I also understood entirely that it was not just her own certainty with which we were dealing. We were dealing with adjudicators. But I do not share the noble Baroness's degree of confidence in every stage of this process. That is where I really would like her to be a little more ready to entertain the possibility that decisions taken within the Home Office machinery may be mistaken. She is very resistant to accepting that possibility—that was all I wish to say—and that is frankly a matter of opinion.

Lord McIntosh of Haringey

I found the Minister's reply fascinating because not once, but several times, she used the phrase "manifestly unfounded" as being the basis on which the provisions of Clause 1 would come into effect, whereas the words "manifestly unfounded" do not occur anywhere in Clause 1. Under the 1993 Act there was provision for fast-track appeals procedures and for the denial of access to the Immigration Appeal Tribunal for claims which were "unfounded". Ministers—I acquit the Minister in this House of the charge—have since then consistently referred to such claims as bogus. I am glad that the noble Baroness does not do that and has never to my knowledge done so. But "manifestly unfounded" is not what the clause says.

Clause 1 speeds up the appeals procedure and denies the special appeals procedure unless the adjudicator allows it. It applies to those cases which fall under sub-paragraph (2)—about the designated list—sub-paragraph (3)—about passport defects—and sub-paragraph (4)—about the fear of persecution. In reading sub-paragraph (4)(b) I now see the words "manifestly unfounded". I apologise to the Minister for that. But it is only one of a wide range of conditions under which denial of access to the Immigration Appeal Tribunal applies. The words "manifestly unfounded" refer to a fear of persecution but not to a claim. Therefore, the Minister's defence of Clause 1 does not apply.

As I said, Clause 1 speeds up appeals and restricts access to the Immigration Appeal Tribunal. But what is the Immigration Appeal Tribunal for? It is designed to send cases back to the adjudicator for errors to be corrected. As the noble Earl, Lord Russell, said, there have been a significant number of cases in which it has done so and in which the result has been different from that which would have been the case if there had been no Immigration Appeal Tribunal. That proves the worth of the Immigration Appeal Tribunal and it proves to my mind that it is wrong for it to be emasculated in the way that is proposed in Clause 1.

This issue is very close to one which we have considered on a number of amendments and it is not one on which I wish to seek the opinion of the Committee. However, I have to say that the criticism we have been making is not in the form of a wrecking amendment but of a desire to restore an appeal tribunal which was set up by this Government, which we believe serves a useful purpose, and which is being diminished by the Bill as drafted.

Baroness Blatch

I am grateful to the noble Lord for giving way. Perhaps I may put the record straight. Before the noble Lord decides what he is going to do with the amendment, I believe I misled the House in saying that it was the adjudicator who determined the accelerated procedure. It is after substantive consideration that a decision as to whether it should be normal track or fast track is taken and then of course it is for the adjudicator to hear the appeal. But it is nevertheless after substantive consideration of the case.

Lord McIntosh of Haringey

I hope that nothing I have said compounded that error. I hope I was saying that it is the fast-track appeal that we are talking about and not a fast track for the consideration of the original application. On the basis that I have stated, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 23: Line 45, at end insert— ("but nothing in those rules may permit any appeal to be determined without the appellant being given the opportunity to present evidence both orally and otherwise").

The noble Lord said: Amendment No. 23 is of great importance. Its importance has been brought to the forefront by the issue on 31st March and the Lord Chancellor's proposals for comment on procedural rules which would affect the role of the adjudicator and the way in which the adjudicator would consider an appeal. These are not, as I understand it—the Minister will correct me if I am wrong—the procedural rules as such which would apply to the state of law after the Bill has received Royal Assent. I understand them to be procedural rules which are meant to apply to the situation after the passage of the 1993 Act and the subsequent KPMG report in late 1994 on the operation of the Act. What is significant about the rules issued by the Lord Chancellor's Department is that they consistently refer to the need to avoid delay and reduce cost. They seldom refer to the protection necessary for applicants and appellants. That is why we are worried—we express our worry in the form of this amendment—that it may be the Government's intention to allow appeals to be taken on the papers alone without the possibility of an oral hearing.

All the evidence is that that would be an extremely dangerous procedure. I believe that the Council of Tribunals—I am sorry that my noble and learned friend Lord Archer of Sandwell, who is the chairman of the council, is not available to contribute on this issue today—has been carrying out an analysis of the relative success of matters which come before a tribunal when there is a possibility of an oral hearing as compared with matters which come before one when the matter can be decided on the papers alone. There is a great difference between the two procedures. In other words, there is a much greater likelihood of an appeal being found in favour of the appellant if there is an oral hearing than if there is only a consideration of the papers.

The Bill, as drafted, does not say that an appeal can take place without the possibility of an oral hearing. But all the provisions in the Bill, including, notably, the provisions for out-country appeals in Clauses 2 and 3, lead us to fear that it may be the intention of the Government to allow appeals to be considered on the papers alone. This afternoon we are looking for an assurance that that is not the case and that the Government will indeed do what I believe everyone will accept to be the right thing; namely, to have oral hearings when they are necessary. I beg to move.

Earl Russell

We are always at a disadvantage when we have to discuss a major substantive issue in the absence of some of the crucial documents which show how the policy is going to be applied. It means that we do not know exactly what is going to happen or how it is going to work. Without the procedural rules, I do not see we can properly understand exactly how the appeals are going to work.

We are at a disadvantage here. It is perfectly possible that the noble Baroness is also at a disadvantage. It is not the business of this side of the Committee to be in the habit of regularly giving the Government the benefit of every doubt that arises. It is quite possible that were this document to be made available, some of our fears would prove to be unfounded. One must accept that is a possibility. But one has to go on insisting that as long as they have the power to do something which we believe should not be done, one has to go on raising the issue.

The fear that appeals may be done entirely on the papers is not, so far as I am concerned, without foundation. During the last election, which is now quite a time ago, I took part in a radio programme opposite the noble Lord, Lord Waddington, on the subject of immigration. The noble Lord stated categorically that it was the Government's intention to introduce a system of hearing appeals purely on the papers. That was a statement made by the then Leader of this House, so it clearly was the Government's intention in 1992.

What is rather curious is that this did not appear in the Asylum and Immigration Act 1993 so, clearly, somebody had had second thoughts. What we do not know now is whether the second thoughts have been superseded by third thoughts. We do not know whether the second thoughts were the result of perhaps perfectly genuine difficulty. When a Government have hesitated so long before bringing in a policy which they have proclaimed during an election campaign, one must wonder whether they had good reason not to do so.

In this case what strikes me as the obvious good reason is that when one is dealing with a claim, practically the first thing that one needs to form an opinion about is the credibility of the claimant. I have not yet found any reliable way of judging the credibility of a person based entirely on paper. Believe me, if one's profession is that of an historian, one has to try to do that daily. There is not any way that it can be done adequately. So if one wants to judge the credibility of an appellant, one has to be able to have an oral hearing. Without that the element of lottery in a decision, which is already there, inevitably must increase and that is something that we could not regard as the prevention of abuse.

Baroness Blatch

I shall ignore the political jibe of the noble Earl, Lord Russell. I wholeheartedly agree with him that establishing the credibility of an appellant is the intention of the system.

Earl Russell

Did I hear the noble Baroness right in saying that I had made a jibe? If so, what was it? I do assure her that that was not in the least my intention.

Baroness Blatch

I believe I heard the noble Earl refer to matters being brought up during political campaigns. If I have misunderstood the point being made by the noble Earl, of course I withdraw the comment that I made.

Earl Russell

All I wanted to say was that the point was made by a spokesman acting for the Conservative Party during a general election campaign. I believe that hearing appeals based only on the papers was then the Government's intention, but what interested me was why they changed it. I was not alleging any impropriety about changing their minds—in fact, I was relieved that they did. I just wondered why they changed their minds back again.

Baroness Blatch

It is my intention to ignore the politics of this amendment and to deal with the amendment before me on the Marshalled List.

Amendment No. 23 proposes changes to subparagraph (5) which would prevent the Lord Chancellor from issuing procedural rules which denied the appellant the opportunity to produce evidence in support of his appeal, both orally and otherwise.

The Government cannot accept the amendment. My noble and learned friend the Lord Chancellor has recently issued for consultation new draft procedural rules designed to reduce delays and adjournments. Comments have been requested by 20th May and a copy has been made available to this House. Among a number of important improvements to the rules, our proposals include an extension of the existing powers to resolve the case without a hearing. The draft rules would extend the adjudicator's existing discretion to determine the appeal on the papers in certain circumstances.

It is important to put this proposal in context. The Government have been seriously concerned about unnecessary delays and adjournments in the asylum appeals system. The majority of appeals now take longer to determine than the time prescribed in the procedural rules. Part of the problem is that the workload of the appeals system exceeds its capacity. That is why the Government are currently investing substantial sums in additional adjudicators and additional hearing rooms. The number of determinations nearly tripled last year from 2,400 to over 7,000, and a further very major rise in determinations is planned this year.

But an important part of the problem lies in avoidable delays and adjournments. A study by the consultants KPMG, which was referred to by the noble Lord, Lord McIntosh, which the Government commissioned in 1994 and made available to Parliament in February 1995, highlighted the havoc caused to many lists by last-minute adjournments. For example, the consultants found that there is little incentive for appellants and their representatives to co-operate with the Home Office and the appellate authority in moving appeals quickly through the system. They found that by the appeal stage, when it is becoming clear to appellants that their chances of gaining refugee status are very thin, it is in the interests of most to seek to postpone the final decision.

The report went on to say that the lack of incentive to co-operate with the appeal process is supported to some extent by the analysis of adjournments. It has been noted that significant causes are illness, lack of readiness on the part of the appellant's representative and absence of the appellant or his representative. The report went on to say that it was not suggested that all the adjournment requests are not genuine, but that for many such representatives it is not difficult to get at least one adjournment. The concern of adjudicators was also noted at the misuse of doctors' sick notes. The report commented that the Home Office Appellate Authority and judiciary should remain alert to the incentive for appellants and representatives to delay the processing of appeals.

The new procedural rules are designed to address the problems identified by the consultants. My noble and learned friend the Lord Chancellor has consulted closely senior members of the Immigration Appellate Authority and the Immigration Tribunal, to arrive at a clear and practical set of proposals. They include greater powers for adjudicators to make directions to the parties for the preparation of cases; a presumption against adjournments unless the adjudicator is satisfied that it is necessary for the just disposal of the appeal, and a stronger presumption against the admission of appeals if notice is not given in time, unless given late, because of circumstances beyond the appellant's control.

Powers to give directions are of no use without sanctions against non-compliance by either party. Therefore, we propose that the adjudicator will be able to proceed without a hearing or to treat the appeal as abandoned, if that is appropriate. In addition, we propose that the existing power to determine the appeal without a hearing may be appropriate in other circumstances. We believe that there may well be cases where it would be both sensible and compatible with justice to proceed in that way. There are cases when, for example, it is plain from the papers that the appellant cannot, or has not tried to dispute the incontrovertible nature of the decision. Where it is plainly unnecessary to hold a hearing, doing so merely adds to the burden on the appeal system.

Perhaps I may stress three points. First, there is already provision for determining appeals without a hearing in certain circumstances. Secondly, we are emphatically not renewing the right to an oral hearing in all certified appeals, as suggested in the Peat Marwick report. All that is proposed is to extend the adjudicator's existing discretion to determine on the papers, if he considers that appropriate in an individual case. It will be entirely up to the adjudicator how far, if at all, he uses such a discretion. We believe that it is an option that should be available to the adjudicator. Thirdly, if an adjudicator uses that discretion unreasonably, the ultimate safety net of judicial review is always available. We do not think that that will happen very often.

We shall, of course, consider carefully all the comments that we receive on the draft new procedural rules, but we cannot agree to Amendment No. 23 as that would foreclose an option that we believe at least deserves to be considered seriously.

5.30 p.m.

Lord Harris of Greenwich

Perhaps I may say just a few words on this, with particular reference to the bizarre statement made by the noble Baroness a few moments ago that my noble friend Lord Russell had made some sort of jibe by referring to a debate that he had had with the noble Lord, Lord Waddington. I am glad that I can get a laugh out of the noble Baroness because it is some little time since I have had the pleasure of watching her smile about anything—no doubt partly because of the unfortunate disclosure of the way in which the crime figures are moving at the moment.

Baroness Blatch

I smile a great deal across the Dispatch Box, but the noble Lord has not been in the Chamber enough to see that.

Lord Harris of Greenwich

I do my best to study the features of the noble Baroness because that always gives me great pleasure but, unhappily, not on this occasion.

The Minister dodged answering the specific question from my noble friend about the statement made by the noble Lord, Lord Waddington. The Minister may recall that the noble Lord, Lord Waddington, happened to hold the office of Home Secretary for a substantial period of time. May I ask her now whether she will reply to the question? On that occasion, the noble Lord, Lord Waddington, said that the Government were contemplating doing precisely what the Government are apparently now doing; namely, saying that in a number of cases the appeals should be carried out solely on the basis of the papers, without the appellant being present. If that was the position of the Government on that occasion and the Government then decided not to proceed, the question that arises is: why did they change their mind on that occasion and why do they appear to have changed their mind yet again? That seems to be an entirely reasonable question and I hope that the Minister will now reply to it.

The noble Baroness sometimes gives the impression that any criticism, however faint, about any action taken by the Home Secretary or any Minister is in some sense a grave breach of our constitution. Let me reassure her: we do not see things in quite that way. The noble Baroness should not be quite so sensitive when even the mildest points are made, as on this occasion.

Baroness Blatch

The noble Lord presses me to say why the decisions have changed. When speaking to the amendment, I said that we had had the benefit of the KPMG report. I also said that what has changed is that the decision and the discretion are given to the adjudicator. We think that that is absolutely right. I also plead in defence the fact that this is a democratic process. As the noble Lord knows, government is a dynamic. We base our thinking on the latest information available to us. The Lord Chancellor has seen fit to put his proposals out for consultation. They are now out for consultation and if the noble Lord is concerned about them, we hope that he will respond. The proposal is that the special adjudicator should be satisfied, having regard to the material before him, the nature of the issues raised, and the extent to which any directions given under rule 23 have been complied with, that the appeal could be so disposed of justly. It is the adjudicator who must make that consideration. It is the judgment of the adjudicator that it should be appropriate. As I have already said, if the adjudicator acted unreasonably, that would be subject to judicial review.

Earl Russell

Perhaps I may say this in clarification: I made no complaint at all about the Government changing their mind. That must happen. I merely wanted to know why they have changed their mind. I did not think that I was raising a major mystery, but I am now beginning to wonder whether I was.

Lord Avebury

I wonder whether the noble Baroness is aware that the draft procedural rules which she said had been issued by the Lord Chancellor are not available in the Printed Paper Office.

Lord McIntosh of Haringey

Perhaps I may return to Amendment No. 23, to adapt a phrase which I think has been used before. It is entirely legitimate for the Minister to quote from the KPMG report. We quote from reports from time to time when we think that appropriate. It is, however, somewhat curious that the noble Baroness should quote from that report and then have to admit that the Government have rejected the report's principal conclusion on this issue. After all, the KPMG report said, as I understand it, that all such hearings should be heard on the basis of the papers rather than orally.

My amendment does not propose any such thing. It states that no appeal should be heard on the papers unless the appellant has been, given the opportunity to present evidence both orally and otherwise", and has chosen not to do so. We are not talking about whether all appeals should be on the basis of oral hearings. We are talking about the opportunity for an appellant to seek an oral hearing if he desires to do so. If I caused confusion by the way in which I moved the amendment, I apologise; but I do not think that the contrast between us is as stated by the Minister. I was arguing that there should be an opportunity for an oral hearing. None of the Minister's arguments seems to address that issue—

Baroness Blatch

I think that I precisely addressed that issue. A very real difference between us is that if the amendment is accepted, the decision as to whether there should be an oral hearing would rest with the appellant. The KPMG report extensively catalogues the abuse of that procedure. We believe that it is right that an oral hearing should be considered, but the decision as to whether there should be an oral hearing should belong to the adjudicator, not the appellant.

Lord McIntosh of Haringey

Then we have correctly identified the difference between us because I certainly take the view that it should be the decision of the applicant for the reasons that I have outlined. Oral hearings produce different results from hearings on the papers and are self-evidently, I should have thought, superior to appeals held purely on the basis of the papers because of the possibilities of cross-examination and of eliminating misunderstandings. I should have thought that that was fundamental not just with regard to tribunals, as the Council on Tribunals recognises, but in all aspects of the law. Where there is conflict of this kind which has to be resolved by judicial or quasi-judicial means, there should be an opportunity for cross-examination and for the matter to be heard in person rather than on the papers alone.

I question whether by these measures the Government will achieve any significant reduction in delays. Surely when issues cannot be resolved on the spot, the adjudicator will seek adjournments in order to solve the discrepancies in the papers. It would be possible to say that an oral hearing should be held at relatively short notice and that there should be a limitation on the time taken for oral hearings. The Minister based her argument heavily on the number of adjournments that are necessary. I suggest that what she proposes—enforced written hearings on the papers alone—will increase the number of adjournments and delays rather than the other way around. The Minister did not seek to provide any evidence—I do not have any—of the number of cases in which applicants sought oral hearings. It would interesting to find out, if the proposal to have hearings on the papers alone were implemented, how many applications for oral hearings there would be. I suspect that neither of us knows. Therefore, we are not in a position to make a final judgment. Much to my regret, I suspect that what the Government propose will increase delays and injustice. This is a matter to which I am very likely to return at another stage.

Baroness Seear

Can the noble Minister tell us of any other case in which a matter of this importance can be dealt with by any court in this country without the person concerned having the right to appear in person?

Baroness Blatch

I understand that there are occasions when either the chairman of the tribunal or an adjudicator can make a determination without an oral hearing. I cannot give chapter and verse, and I will write to the noble Baroness.

Lord Winston

Surely the crucial issue is Britain's reputation for fairness and justice. Is that not the key to the whole question? It may not be seen to be a just decision if there is no possibility of making representations in person.

Baroness Blatch

I refer yet again to the proposal put out for consultation by my noble and learned friend the Lord Chancellor. He refers to directions given under Rule 23. It is only if the case can be disposed of justly that my noble and learned friend will not have an oral hearing.

I refer again to the KPMG report. Some of the practices that the parties employ to good effect to win adjournments, which are not treated robustly by all adjudicators, include: seeking multiple adjournments, especially in without foundation cases, where the longer the hearing can be delayed the more likely it is that the case will have to be treated substantively; introducing late evidence, even when there has been plenty of time to collect and submit documents, thus forcing an adjournment; and failing to turn up or to produce the appellants on the basis that they will be given a second chance at a later date, because few adjudicators will use their power to determine the matter on the papers. Even if adjudicators go ahead on the papers, the appellant has a fair chance of having the case remitted for an oral hearing by the tribunal. Those are just some of the abuses. We believe it is fair and proper, and should at least be given fair consideration—which is what my noble and learned friend the Lord Chancellor has done—to submit proposals that say that on the basis of a just disposal the adjudicator should have power to determine the appeal on the basis of papers rather than an oral hearing.

5.45 p.m.

Lord McIntosh of Haringey

I repeat that the Government are not only wrong in principle that oral hearings should be denied despite the wish of the applicant, as my noble friend Lord Winston has pointed out, but it is likely to be counter-productive. When the Minister goes on to quote evidence that has been adduced in favour of a policy which the Government have not accepted, I am confirmed in my view that it is a matter which deserves further consideration at a later stage, although I will not pursue it into the Division Lobby today.

Baroness Blatch

I have an answer to the question posed by the noble Baroness, Lady Seear. I am told that nearly all judicial review applications are heard without the applicant giving oral evidence.

Lord McIntosh of Haringey: I beg leave to withdraw Amendment No. 23.

Amendment No. 23, as an amendment to Amendment No. 1, by leave, withdrawn.

[Amendments Nos. 23A to 28, as amendments to Amendment No. 1, not moved.]

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 29: Line 62, at end insert— ("() A Special Adjudicator may remit a claim for asylum for reconsideration by the Secretary of State as an alternative to dismissing it where he concludes that the decision rejecting the claim has not been taken in accordance with the law or any relevant rules.").

The noble Lord said: Amendment No. 29 provides that a special adjudicator may remit a claim for asylum for reconsideration by the Secretary of State as an alternative to dismissing it. Special adjudicators, in particular Judge Pearl in giving evidence to the Glidewell Inquiry, have indicated that this is a very important part of their powers and responsibilities. The 1993 Act allows the adjudicator to refer an issue back to the Home Office where there is a conflict of law or a conflict with the Immigration Rules. In practice, it means that the adjudicator believes that the matter has not been considered properly. As I understand it, that provision will still exist in fast-track cases, although such a referral back will be time limited and there will be a restriction on repeated applications for adjournments. That was a matter to which the Minister referred in her most recent answer. The power given to adjudicators to refer back cases to the Home Office has been widely used. I understand that 26 per cent. of safe third country applications (which we will come to consider in Clause 2) have been referred back in this way.

Further, in his evidence to Glidewell Judge Pearl referred to what would happen if the power to refer back cases was denied. He dealt with that matter again when the case of Dr. al-Mas'ari was referred to him. On that occasion he said that if there were no power to refer the matter back, there was a possibility of the case being left in limbo, and nobody would be able to decide whether Dr. al-Mas'ari, or somebody like him, should be granted refugee status. I suppose that a part answer is that he may be given exceptional-leave-to-remain status. That is what the Government have done, although I understand that it is limited to a period of four years.

Nevertheless, on any view of the role of the special adjudicator it must be possible for him to say, not just that in his view the decision is correct or clearly incorrect in that the appeal should not be allowed, but that possibly insufficient evidence has been adduced either in the original application or the appeal and the Home Office must look at the case again. I would have thought that that was an open and shut case—which is not the case for appeals themselves—and that it would be right to include the provision as proposed in Amendment No. 29. I beg to move.

Baroness Williams of Crosby

I rise to support the noble Lord, Lord McIntosh. I draw attention to one factor upon which he touched. At an earlier stage I withdrew an amendment that would have removed sub-paragraph (6) in Clause 1. That sub-paragraph dealt with the disappearance of the Immigration Appeal Tribunal as a final point of appeal on a matter of law. As I understand it, it will no longer be available to those on the fast track. The amendment moved by the noble Lord, Lord McIntosh, would give the special adjudicator the right to return a case to the Home Office on the ground that there might be a misdirection in law. Given the disappearance of the Immigration Appeal Tribunal in these cases, it seems to me to be absolutely vital that it should be possible to mount an appeal on a point of law.

Indeed, it is striking that when in the past special adjudicators have referred cases to the Immigration Appeal Tribunal, in a great majority of those references the adjudicator's case has been upheld by the tribunal. Indeed, according to the Home Office's own statistics for 1995, in 1994 74 per cent. of appeals on a point of law were upheld as a result of a special adjudicator's reference back for rehearing on a point of law.

I feel strongly that unless we are to try to put back the Immigration Appeal Tribunal under Clause 1—I appreciate what the Minister has said about trying to speed up endless procedures—it would be wise of the Government to concede the amendment, which would mean that a point of law could be looked at. That is clearly not something that adjudicators are normally qualified to do, as distinct from the Immigration Appeal Tribunal, or in this case the Home Secretary and his colleagues. I commend the amendment to the Government, and hope that they will consider accepting it.

The Lord Bishop of Ripon

The Minister will remember that in a recent meeting we had with the Home Secretary the issue of referral back was raised. My understanding at that time was that there was a disagreement between the noble Baroness and the civil servants over the effect of the Bill. I asked whether the removal of the power to refer back meant that an adjudicator would have to arrive at a decision on the substantive case.

The noble Lord, Lord McIntosh, referred to the possibility of cases being left in limbo. My understanding was that adjudicators would be required to make a decision on the substantive case. If that were to be the situation, the difficulties would be considerable because the adjudicators would not have before them sufficient evidence. An adjournment would be needed. There is a possibility of the system being clogged up due to that rather than being freed in the way the Government hope. I hope that the Minister may be able to clarify the points being made and answer the question as to whether adjudicators will be required to make a decision on the substantive case in such circumstances.

Lord Avebury

I should have preferred the noble Lord, Lord McIntosh, to go a little further in the amendment. As he knows, in the case of Dr. al-Mas'ari, to which he referred, the matter was referred to the Secretary of State by the special adjudicator on two occasions but no decision was taken on the substantive application for asylum. Initially, when Dr. al-Mas'ari came here the proposal was to return him to Yemen, the last country from which he had travelled, because, as the Committee may remember from the previous occasion when we touched upon this case, he was originally imprisoned and persecuted in Saudi Arabia. He escaped across the border to Yemen where he obtained a travel document. He came here from that country.

The first decision that had to be made by the special adjudicator was whether Yemen was a safe country to which to send him back. When the special adjudicator decided that it was not, he made a recommendation to the Secretary of State that he should consider the substantive application for asylum, but the Secretary of State failed to do that, and claimed subsequently to have lost the papers. I will leave it to the Committee's judgment whether to believe that.

When another adjudicator decided on the question of Dr. al-Mas'ari's proposed removal to Dominica, he, too, recommended that the Home Secretary should consider his substantive application for asylum. Instead of that, as the noble Lord, Lord McIntosh, pointed out, the Secretary of State, in his wisdom, decided to give him four years' exceptional leave to remain which could be renewed for an indefinite period.

Not only should the special adjudicator's power to remit a claim for asylum be restored by an amendment to Clause 1, the amendment should have provided that in cases where the special adjudicator makes such a reference to the Secretary of State, the latter would have an absolute duty to make a decision on the application for asylum and should not have the power merely to grant exceptional leave to remain or to make some other decision at his own discretion. Surely if we are providing the special adjudicator with these powers, it means that the Secretary of State must do his duty and not slide out of it by the means he has chosen to use.

Baroness Blatch

Perhaps I may say, first, to the right reverend Prelate that I remember the meeting well. It was a useful meeting. It was not a disagreement between myself and the Home Secretary; it was that I got it wrong, and on that occasion the Home Secretary got it right. We have since confirmed in a letter to the right reverend Prelate that his understanding is correct.

The Government believe that adjudicators should in future in all cases either allow or dismiss the appeal. That is where there seems to have been some misunderstanding, as I have listened to the debate on the amendment. Many people are judging the situation as it prevails at the moment and not as it would be if the Bill were on the statute book. The Bill would therefore abolish the option of referral to the Secretary of State which is currently available in certain circumstances because, as I have said, the adjudicator would either allow or dismiss the appeal.

Referral back adds to delay. In effect, the consideration of the case has to start again. Unless he grants asylum, the Secretary of State has to issue another letter setting out his reasons for refusal, and a second appeal then has to take place. That runs counter to the whole thrust of our proposals which are aimed at speeding up the appeal system.

Referral back to the Secretary of State is entirely unnecessary. It has to be remembered that all cases covered by Clause 1 will have been substantively considered by the Secretary of State. It is important to underline that. It is true that Clause 1 will extend the circumstances in which the Secretary of State can issue a certificate if he refuses an asylum claim. But that does not mean that the Secretary of State is excused from the obligation to consider the asylum claim substantively. He cannot issue a certificate until he has done so. So the applicant will still be interviewed. The grounds for his claim will still be assessed. If asylum is refused, the reasons for refusal will still need to be set out in a letter.

It follows, therefore that the adjudicator should have before him the information he requires to decide whether the applicant qualifies for asylum. He will have the interview notes, the Secretary of State's letter of refusal, any additional grounds subsequently submitted with the appeal and the presenting officer's response to those additional grounds at the hearing. In some cases, the grounds for appeal, if introducing significantly new issues, will have elicited a further written response from the Secretary of State. All of that material will be before the adjudicator in Clause 1 cases. If, exceptionally, the adjudicator requires further comment or information from the Secretary of State, it is open to him to adjourn for that to be provided. The Bill will not change that.

It has been suggested that the option of referral back to the Secretary of State is needed to cater for cases where the adjudicator finds that the Secretary of State's initial decision was legally flawed or failed to comply with the Immigration Rules. That argument reflects a fundamental misunderstanding of the adjudicator's role. Unlike, for example, the Court of Appeal, his role is not limited to reviewing the validity of the initial decision. And he is not restricted to the information which was available at the time that decision was taken. On the contrary, his task is to form his own view of the validity of the asylum claim, taking account of all available information, including any which has come to light since the initial decision was taken. That is a well-established principle, and it would be damaging to change it now. So if the adjudicator finds that the initial decision was technically or legally flawed, he should nevertheless go on to form his own view of the validity of the asylum claim and either allow or dismiss the appeal accordingly.

Some may think that cases will be left in limbo if they cannot be referred back to the Secretary of State. There is no such risk. As I have already said, the issue before the adjudicator in all Clause 1 cases will be whether the appellant qualifies for asylum. If the adjudicator allows the appeal, he will be overturning the refusal of asylum. If he dismisses the appeal, he will be upholding the refusal of asylum. Either way, therefore, there will be no question of the case being left in limbo. The third option of referral to the Secretary of State will therefore be unnecessary.

The noble Lord, Lord McIntosh, touched briefly on third country cases. I too hope that we can leave that matter until we discuss it later tonight in the course of considering other amendments. It is quite wrong to suggest that allowing the appeal will leave the case in limbo. If the asylum seeker is still in this country, the asylum claim will automatically be referred back to the Secretary of State. The claim will still be outstanding and the Secretary of State will have to deal with it. In most cases, however, the successful appellant will already have been removed to the third country. Again, I shall deal with that point in more detail when we discuss later amendments.

Reference has been made to Judge Pearl saying that allowing a third country appeal leaves it in limbo. It is difficult to answer because points have been made in the debate. Perhaps Members of the Committee will forgive me if I leave that matter until later. It was mentioned that Judge Pearl told the Glidewell panel that Clause 1 will be counterproductive. What Judge Pearl is reported to have told the Glidewell panel is that the appellate authority's intake currently exceeds its output and that while that remains the position the need to give priority to increased numbers of certified cases will lead to longer waiting lists for other appeals. I know that that view is held by the right reverend Prelate.

We listen carefully to the advice of the chief adjudicator, which is important. He has presided over a very remarkable expansion of capacity and output since his appointment, with the assistance of a major investment of resources which is continuing. However, it is not the Government's position that wider use of the accelerated appeal procedure will of itself reduce overall delays, but we are convinced that it is a necessary part of a wider programme of measures. The package also includes major additional resources now being invested in the appeal system and the improved procedural rules on which my noble and learned friend the Lord Chancellor has just published proposals after consulting the chief adjudicator.

It is important to send a deterrent signal that unfounded claims will be dealt with speedily. If fewer such claims are thereby made, overall delays will be reduced and genuine refugees will then receive asylum more quickly. I hope that the amendment will not be pressed.

6 p.m.

Lord McIntosh of Haringey

It is clear where the disagreement lies. None of us is in favour of delay and we shall support proposals which will genuinely reduce delay. However, the danger arises when delay is in conflict with the interests of justice. After listening carefully to the debate I believe that we may have reached the point where there is a conflict between the interests of justice and delay.

I look again at the wording of my amendment and find it somewhat disingenuous. It states: A Special Adjudicator may remit a claim for asylum for reconsideration by the Secretary of State as an alternative to dismissing it where he concludes that the decision rejecting the claim has not been taken in accordance with the law or any relevant rules". I suggest to the Government that it might well be that the alternative will be the case. In other words, a special adjudicator who does not have the power to refer a claim back to the Secretary of State when he considers that it has not been taken in accordance with the law or any relevant rules—that is, that the procedures were improper—may be tempted to say, "I cannot dismiss the claim because, clearly, the procedures were improper, but if I cannot refer it back I shall have to allow the claim". The Government might well find that at the end of this exercise they are getting more successful claimants not necessarily because their claims are justified but as a result of the restrictions placed on the special adjudicator to try to clear up inconsistencies or potential improprieties in the procedures for the claims.

The whole of the Minister's argument was about the substantive consideration of the claim and I accept that that has not changed. She did not refer to the initial appeal and to the fact that the fast-track appeal procedure is bound to involve some risks to the quality of evidence and the quality of consideration. There is not much point in doing so unless one is cutting some corners. She appears to believe that somehow the combination of the substantive application procedure and the fast-track procedure will produce a result which is perfect in all cases and in which there can be no improprieties. That is not a criticism of the immigration department staff or the adjudicators, but surely in human nature errors will be made. I refer to errors of procedure and of consideration of facts, and to all kinds of errors in the procedure which may become apparent to the special adjudicator. I suggest that, as a result of denying the power to refer back, the Minister will find that there will be more successful applications, some of which may not be fully justified.

Baroness Blatch

In all the cases cited by the noble Lord we are suggesting that the adjudicator has the widest possible powers. He does not consider only procedural matters but he has the powers to determine. In order to make a determination he may continue to seek additional information from the Home Secretary, the Home Office and the applicant. He may seek any relevant or additional information that he believes is important to give a judgment either to allow or to dismiss the appeal. His powers allow him either to dismiss or to allow the appeal, and he can continue to keep a case before him until he is absolutely satisfied that he has taken into account all the information he needs to reach that view.

Lord McIntosh of Haringey

There are two answers to that. The first is that if that is the case, it destroys much of the argument about delay. The special adjudicator must call successively for different papers and for responses from the different parties to the appeal to the papers produced by the other side. That is bound to result in a more drawn-out process than a single hearing. Secondly, it is unlikely to be effective. A reconsideration of the case called for by an adjudicator would bring together all the evidence in a way that the adjudicator dealing only with the papers cannot. It might well speed up the appeal.

The amendment does not provide that the adjudicator should not wherever possible determine the appeal. Of course he should. He should either reject or dismiss the appeal whenever he can. However, the most effective way of dealing with a case in respect of which he has a doubt about whether the appeal is justified—a doubt based on the way in which the case was considered before it reached him—in terms of justice and of avoiding delay, would be for the case to be referred back to the Secretary of State for further consideration. Again, as with the previous amendment, we must return to this matter on Report because the Government's position is neither right nor expedient. I beg leave to withdraw the amendment.

Amendment No. 29, as an amendment to Amendment No. 1, by leave, withdrawn.

Baroness Hilton of Eggardon moved, as an amendment to Amendment No. 1, Amendment No. 30: Line 62, at end insert— ("() Nothing in this paragraph shall be construed as applying to a claimant who is, or who appears to be, under 18 years of age, and where the age of the claimant is in doubt or is in dispute the burden shall be on the Secretary of State to demonstrate that the age claimed by the claimant is incorrect.").

The noble Baroness said: In moving Amendment No. 30, I shall speak also to Amendment No. 45. As previous speakers have said, there has been no dramatic increase in immigration in recent years. Very few immigrants have been unaccompanied children. In 1995 only 486 unaccompanied children aged under 18 made applications for asylum at the ports of this country. A further 99 made application after being admitted to the country.

To subject that handful of children to the fast-track procedure seems particularly mean-spirited. Children as well as adults can be the victims of persecution and torture. For example, in conflicts such as that in Rwanda, where genocide was the main aim of the warring parties, many children die merely because they belong to the wrong tribe. In other countries such as Liberia and Angola, children as young as 12 and 13 may be forced to be soldiers. That is not a good start to life as a responsible citizen.

The United Nations estimates that half the world's refugees are children. Inevitably some of those will arrive unaccompanied on our shores seeking asylum. The purpose of the amendment is to ensure that children have a full opportunity to present their case for asylum which is unlikely to be possible through the fast-track procedure.

The amendment also places the burden of proof on the Secretary of State to prove that the asylum seeker is over 18 if he has claimed to be a child. Those two provisions need to go together so that the exclusion of children from the fast-track procedure cannot be circumvented by an assumption that they are adults.

The judgment of age is notoriously difficult. My early police experience, which often depended on judging whether somebody was under or over 17 so that he could be sent home or back to approved school, resulted in my endlessly making mistakes as to whether someone was a child or an adult. I learnt rapidly that adolescence is an extremely variable state: boys of 15 may have moustaches and girls with well-developed figures may be only 14; on the other side, pint-sized youths may legally be adults. Therefore, it seems important that immigration officers or other officials should not be able to make a judgment without evidence that the person in question is an adult. If the age of an appellant is at issue at the appeal, lengthy legal arguments as to the young person's real age are likely to ensue. It is essential that a child has legal representation.

It is also possible that the search for documentary evidence may take many weeks. The rules which apply to the interviewing of children make it difficult to arrange or conduct the necessary interviews expeditiously. The complex issues involved therefore make it all the more essential that a child has legal representation; that his rights are protected; and that adjournments may be sought to obtain evidence. For those reasons, it is inappropriate to apply the fast-track procedure to children. It is appropriate to place the burden to prove age on the Secretary of State.

Amendment No. 45 depends on many of the same arguments but it is intended to remove the power to send an unaccompanied child to a third country while awaiting the results of an appeal. Again, it would place the burden of proof to prove that the applicant is an adult on the Secretary of State.

It seems to me that the proposed third country procedure is a denial of justice even to adults, but I believe that it would be barbaric if applied to children. Moreover, it is current government policy not to return a child to a country unless there are adequate arrangements for that child to be met and cared for. That will be far more difficult to fulfil in relation to a so-called third country where presumably a child will have no family or friends. That gives added force to the amendment. In view of those considerations, I beg to move the amendment.

Lord Renton

I would have thought that this amendment, however well intentioned, would cause real problems. The burden of proof should surely lie on whoever has or is most likely to have the necessary information as to the child's age. The Secretary of State will not have that information but the child, the child's parents or anyone escorting him is likely to have it. Therefore, the burden of proof should lie upon the claimant and not upon the Secretary of State to disprove the matter. That would be an entirely negative burden to place upon the Secretary of State. I really feel that in the public interest, the Government could not accept this amendment.

6.15 p.m.

Baroness David

The point about these amendments is that these children are unaccompanied. There will be no parent or friend with them who can say for sure that they are over 18 or under 18. A child may well come with false documents which perhaps say that he is 18. There must be some way of proving it and the burden of proof should not be on the young person. I know that it is very difficult to prove it and it may need doctors or paediatricians, to give the proof. But I think that it is very hard to take the view that an unaccompanied child is over 18 when he may well not be.

With these amendments we have at last come to amendments about children. It is important that they are recognised as a very special and vulnerable category of people in an excessively difficult position when coming to a country that they do not know and whose language they do not know. We should give them very special consideration.

The Home Office recognises this in a variety of ways. Current Immigration Rules 352 and 353 apply to unaccompanied children. Under those rules, children are not interviewed unless the information cannot be gathered in any other way. If they do have to be interviewed, they must be accompanied by an independent adult and the interview must be conducted sensibly.

The Government have also maintained a policy of not returning a child to a country unless there are adequate arrangements for that child to be met and cared for in that country. It is argued that it would be inconsistent to make all those exceptions in the case of children but not to make an exception in the case of the accelerated appeals process, such as that provided in Clause 1.

As my noble friend said, 357 unaccompanied children who applied for asylum at ports in 1994 were from countries which the Government propose to designate as generally safe.

In correspondence, Miss Widdecombe, from the Home Office, has argued that children can spend the time that they wait for a decision obtaining relevant evidence to use in their appeal. That is only true if the child or his relative can predict accurately the points which the Home Office will use to refuse the asylum application. In most cases, that is not possible, no matter how experienced is the representative. Sometimes it is clear that a particular issue may arise, such as whether a child will be met and appropriately cared for if returned to his country. It is then that the representative can make some inquiries on that matter at an early stage.

However, often there will be a need to refute the specific reasons given by the Home Office. For example, a child may have lost contact with his parents and not know where they are. The representative can take some measures such as contacting the Red Cross family tracing service or writing to the last known address or workplace of the people concerned. If, however, the Secretary of State alleges, in his refusal reasons, that the FCO staff in the country in question have discovered that the applicant's father is working for a particular firm or is residing at a particular address, the representative will still need time to check that information.

It is simply impossible for any applicant or representative to address every possible point or piece of evidence that the other side may raise in advance. Exemption from the Clause 1 procedure would not mean that the cases of children could not be prioritised by the Immigration Appellate Authority as they are now. They could perfectly feasibly continue under the new system. That would mean that children's cases could be dealt with promptly but without the pressure to dispose of the case within 17 days, which will either disadvantage the child or lead to an adjournment beyond that target.

Therefore, this first amendment will ensure that the particular difficulties of asylum-seeking children are reflected so that their cases are given full consideration. If the Bill proceeds unamended, the cases of children will either not be fully considered or they will clog a system designed to accommodate speedy cases.

I turn to the second amendment in this group, Amendment No. 45, which would mean that unaccompanied refugee children could not be sent to safe third countries, either with or without an in-country right of appeal. As I said in speaking to Amendment No. 30, the Government have maintained a policy of not returning a child to a country unless there are adequate arrangements for the child to he met and cared for in that country. Miss Widdecombe, in a letter to David Alton, has reaffirmed that. The letter states: I am also happy to reaffirm that even once a child has exhausted his or her appeal rights, the Immigration Service will not seek to return children abroad until reception and care arrangements in their country are made. These arrangements will also be notified on a case-by-case basis to the relevant authorities responsible in this country for the care of the children". The uncertainty over possible removal to a safe third country and legal disputes over that possibility will prevent them from doing this. Refugee children may have been sent to the UK because they speak some English or because there is a well-established community from their country here. But such factors are even more important for children travelling alone than for adult asylum seekers, so the effect of removing to a country deemed safe is likely to be very much more disruptive and damaging. I hope that the Minister can take the case of these children very seriously and agree to the amendments.

Lord Renton

Will the noble Baroness be good enough to tell us whether the document from which she quoted at length gives any indication of the practice which I am sure prevails sometimes of children being sent here intentionally unaccompanied in order to make their remaining here easier?

Baroness David

It is possible that that could happen. However, we must give children the benefit of the doubt and allow them every possible chance to prove their case, rather than assume that they may be in the wrong.

The Lord Bishop of Ripon

The amendment is similar to Amendment No. 49 which is tabled in my name. It is similar in that it puts the burden of proof of age on the immigration officials rather than on the child. However, it is different in other regards as my amendment does not refer specifically to Clause 1. When we come to deal with Amendment No. 49, I hope that we shall be able to debate it in full; but it seemed only right that I should speak on the matter of age determination in relation to Amendment No. 30.

The noble Baroness, Lady David, referred to children as being among the most vulnerable of those who seek asylum on our shores. As we know, it is the case that children are frequently those who suffer most from disorder, violence and civil war in their own countries. Indeed, that has been true throughout history from the massacre of the children in the time of King Herod through to Nazi Germany.

I am speaking now specifically about unaccompanied children who arrive in this country. They are in a highly vulnerable state. It is the case that the Home Office gives them particular consideration. In relation to detention, the Minister said that her understanding is that young people under the age of 17 are detained only as a very last resort. Clearly that is right.

However, despite that Home Office intention, it is the case that the Refugee Council has dealt with 54 unaccompanied asylum seekers under the age of 17 who had been detained. The vast majority of them were detained because the immigration service took the view that they were aged over 18. The problem arises because children travel without documents; with documents which do not belong to them; or with documents which state a false age. I believe that we are all aware of the kind of reasons why that might be so.

If a parent in the country of origin is in detention or in hiding, that often means that a child is unable to obtain a passport. One way of doing so is to present that child as being over the age of majority, in which case the passport on which the child travels gives the age as being over 18. That is then taken by the immigration officials as meaning that the child, in claiming to be under that age, is making a false claim. Further, many people are conscripted for military service under the age of 18 and authorities are often reluctant to allow youngsters coming up to that age to leave their country. Therefore, once again, there will be very strong pressure for those who are under 18 to present themselves as being of a different age.

Such disputes are very difficult to resolve. That is why the intention of the amendment—and of Amendment No. 49 standing in my name—is to say that the burden of proof in those circumstances must rest on the immigration officials. It is possible to obtain medical evidence, but I shall not go into such details because I am not qualified medically to do so. However, I understand that it is possible to have X-rays taken which determine the rate of growth of a particular person and which can give some fairly objective evidence as to whether someone is 17 or 18. Some children have been able to provide other forms of documentary evidence.

All of that indicates that the burden of proof of whether someone is over 18 years of age ought to rest on the immigration officials and not on the children who are making the claim. In the event of dispute, the balance should lie with the person making the claim rather than with those who are rejecting it.

Lord Renton

I trust that the right reverend Prelate will allow me to comment. I listened to what he said very carefully and I thought that he indicated that young people were justified in coming here in order to avoid military service in their own countries. If that is so, are we to treat them as people seeking asylum?

Lord Avebury

I should like to intervene briefly to point out to the right reverend Prelate that the use of X-rays for age determination is deplored by the British Medical Association and has been for the past 20 years since it was the subject of an investigation undertaken in my office. At that time, we submitted evidence to the BMA and to the Government showing that the practice was harmful and inaccurate. If I remember rightly—and it is a long time since the study was published—the average error in the use of X-rays for the purpose of age determination in children was plus or minus two years. Therefore, it would not be much good in deciding the cases that we are discussing this evening which are, by definition, on the borderline between 17 and 18.

Further, the use of X-rays for that purpose could be medically harmful. It was stated that they were not to be used in a procedure that was not clinically necessary for the young person. That is the absolute rule that is now adopted by the medical profession. It is known that X-rays are carcinogenic in however small a dose. Indeed, their use is to be avoided when it is for purposes other than clinical. Therefore, we should be extremely wary of suggesting that any scientific evidence could be brought forward that would help to decide the question of the person's age if that was in doubt.

However, it could perhaps be agreed that a group of paediatricians should be asked to advise and that their word would be acceptable both to the appellant and to the Secretary of State. I suggest a panel of them so that an average view could be taken of the opinions expressed. That would be the best way to sort out what is essentially a very difficult and subjective problem to which there is no absolute answer.

The Lord Bishop of Ripon

Perhaps I may just reply to the noble Lord, Lord Renton. Obviously, I did not make myself clear. The difficulty is that if one is, say, aged 17—that is, under the age of conscription—the authorities in a particular country may be very reluctant to allow a child of that age to leave because they may consider that he is trying to avoid conscription. If there is a genuine reason why such a child should wish to leave, such as the case where a family is being persecuted, it will be very difficult for that child to escape from the country if he presents himself as being aged 17. That is why to do so at an older age, which would indicate that that age of conscription is past, may in fact help such a child to leave his country.

In response to the noble Lord, Lord Avebury, I can only repeat that I am no medical authority; indeed, he may be right in what he says. However, my understanding is that X-rays had been used in the process. I was merely using them generally as an example of possible medical evidence.

Lord Hylton

Several Members of the Committee have correctly made the point that we are dealing with a very limited number of children per year. Whatever we may do in accepting or rejecting the amendment is not likely to increase that number significantly. Many of those children come from countries where records are simply not kept; or, indeed, if they are, they may have been destroyed or may not be capable of being found in a reasonable period of time.

For those reasons we should follow the line proposed by the noble Baroness, Lady David, and give the benefit of the doubt to anyone who might be an adult but could possibly claim to be a child. In addition, we should make absolutely certain that the most cast-iron and reliable arrangements for reception in any other country have been made before we even begin to consider sending back a child or possible child.

6.30 p.m.

Baroness Williams of Crosby

I am proud to follow the remarks made by the noble Lord, Lord Hylton, who was right. It is a small number of people whose age is in question: unaccompanied children. They are young people incapable of presenting proof in some cases. As the noble Lord, Lord Hylton, pointed out, in countries like Ghana, where I taught, there are no records, birth certificates or other adequate proof of the age of a child. We know that a number of children have come to this country for whom medical proof suggests that they are under the age of 18. A current case is that of a young man who arrived here in December 1994, aged 15, according to medical advice. In April 1996 he is still in detention on the grounds that he may not be under the age of 18. He has been in and out of detention for 18 months. It seems to me appalling that a child against whom no crime is registered, save coming to this country to seek asylum, should be kept in detention for many months. That is not to the credit of our country.

I recognise that the Home Office has always made an exception for children once they are established as being children. The problem is that in some cases the evidence put forward by distinguished medical men and women has been refuted by the immigration service on the grounds that it does not agree.

One has to ask whether we believe that a burden of proof can be reached, and what it is. Surely it should lie with the Home Office, which has access to all kinds of expert resources, rather than with one of the most vulnerable people in the world, an unaccompanied child, to prove its age or what it believes to be its age.

I make one other point before we pursue this set of amendments on unaccompanied children. I believe that there is a good deal of evidence to show that children who are below the age of 18 and are returned, if it is held that they are above that age, will return to situations of extreme risk. The right reverend Prelate said that in some countries young children are now being forcibly recruited to serve in the military. Angola is one example, but there are many others. Young children are also forced into prostitution or crime. We are talking of a small number but a large principle.

I conclude by quoting from one of our greatest poets who said in The Merchant of Venice: The quality of mercy is not strained, It droppeth as the gentle rain from heaven". This amendment above all seems to me to be one where the quality of mercy is appropriate.

Baroness Gardner of Parkes

The presentation of the amendment has been confused and, as I listened, I became more and more amazed. The noble Baroness, Lady Hilton, introduced it clearly and I understood what she said. When the noble Lord, Lord Renton, said that he felt it was wrong to place the onus of proof on the Secretary of State, again I fully understood. Then the noble Baroness, Lady David, said how well the Home Office treats children now and how splendid it all is; and it sounded as though there was not much of a problem. The noble Lord, Lord Hylton, said that there are so few children that it is no problem. That may be true now, but if we create a large loophole plenty more children will come on that basis. That is what we must avoid.

It is easy to put one's age up or down. Some years ago I gave advice to a woman who wished to enter the other place that it was best to lower her age. She did just that and, sure enough, she was selected and elected. Her age was dropped 10 years. Age is tricky.

The noble Lord, Lord Hylton, said that we should give the benefit of the doubt—I am not sure that he used that phrase—to someone who might be an adult but could possibly be a child. That definition is unclear and would cause me concern. People have said in one breath that to obtain a passport one must say that one is over 18 and in the next breath that the Home Office is unreasonable when it examines a passport showing someone to be 18 and takes it that that person is 18. It has been suggested that we should place on the Secretary of State the obligation to prove that the person is not 18 when he or she is clutching a passport stating that that person is 18. The amendment is wrong. I oppose it.

Lord Winston

With respect, surely that is going too far. We do not seriously expect floods of children to enter the country as a result of the legislation and it is wrong to suggest that. I support the noble Lord, Lord Hylton. I see adult patients from all over the world, and with patients from Africa and Asia it is common to find that they do not know when their birthday is. It is a major problem.

With regard to radiography, bone ageing and epiphyseal fusing, which is how the determination of age is carried out, I can say categorically that it is not a good idea to apply a rather invasive medical procedure, which might carry an admittedly slight risk of leukaemia, simply to establish status. That would be a poor principle.

However, there is a bigger problem with regard to the burden of proof of age. We shall see children occasionally entering the country who come from situations where they are refugees and are probably quite poorly nourished. Because of poor nourishment, people's ages may be difficult to determine. Surely, the answer is to be reasonably humane and try to be sensible about the legislation. Unless it becomes a huge problem, with a massive influx—which is unlikely—we should accept that there may have to be vagueness by its nature in determining the age of what appears to be a child. We would have to accept that as a matter of humanity and simple justice.

Earl Russell

I do not believe that the noble Baroness, Lady Gardner, has taken on board the difficulty of determining age without records. In early 16th century England, when people took over their land on coming of age, in many cases the witness says that he was born "in the year in which I broke my leg playing football". The trouble is that he does not remember which year that was. One must be realistic about the degree of certainty which can be expected. When the consequences of being disbelieved may be as great as life itself, the burden of proof must be in favour of the applicant. That is the heart of our case.

Lord Dubs

I support the two amendments because one basic principle is at stake. It is that the interests of the child should come first. That is the policy of the United Nations High Commissioner for Refugees and, I understand, of UNICEF.

In my experience when I was director of the Refugee Council, we looked after and I personally met many unaccompanied refugee children or unaccompanied asylum seeking children. One of their characteristics is that they are more traumatised than any other asylum seekers. They are more traumatised because of their youth and often because of the painful and difficult circumstances under which they managed to leave the country where they were in danger. They may also have been traumatised because their parents were dead or had disappeared. Alternatively, they may have been sent to safety by their parents because the parents feared that the children might be conscripted into an army at the age of 13 or 14 and would almost certainly face death. That separation from their parents would have traumatised the children. Young people who have suffered in that way find it harder to speak for themselves. They find it harder than any other asylum seekers to explain what has happened to them and to put up a good case.

The procedures that we apply are particularly thorough. They give the child and his representatives every opportunity to get to the truth of the child's background so that the case can be properly and fairly put.

I do not believe that any government would wish to remove a child from this country to circumstances other than those in the best interests of the child. That requires a thorough and painstaking assessment. I believe that the two amendments go some way towards protecting those interests. I hope that the Government will accept these amendments, or some similar proposals.

Baroness Rawlings

With respect to the noble Baroness, Lady Hilton of Eggardon, I agree that children should be treated with great consideration. Under our Immigration Rules unaccompanied children must receive priority. I am sure that any child who has real cause will be admitted. I do not refer now to the debate as regards age. I refer to Amendment No. 45. Surely the reason that we should reject the amendment is that it leaves a loophole. I am not referring to any bona fide child who comes in. It allows for the possibility—which is not infrequent—of children being used by third parties to allow in subsequent members of their family. This is a serious loophole. I am sure, I repeat, that we would never wish to stop any bona fide children from coming into this country; they would not be stopped from doing so.

Baroness Blatch

This is an important and sensitive issue, and one which concerns us all. I hope that I shall be able to allay the fears of noble Lords about the way in which children who are asylum seekers are handled. I share in all the points raised by the noble Lord, Lord Dubs, but the real concern is how those cases are handled and managed in this country as part of the system.

Our proposals to extend the accelerated appeal procedure do not change the special arrangements for considering asylum applications from unaccompanied children. Their cases will continue to be given special priority and care, and will, as now, be considered by specially trained caseworkers. The Immigration Rules state that a child will not be interviewed about the substance of his asylum claim if it is possible to obtain sufficient information from other sources. Where it is necessary to interview a child, that is done in the presence of an independent adult. Unaccompanied children, therefore, are not included in the Home Office short procedure which is based around an early asylum interview to obtain the basis of the claim.

They will also continue to have the services of the Panel of Advisers for unaccompanied children to help them in their dealings with the Home Office and other government agencies.

There is no conflict between our careful approach to applications from unaccompanied children and the proposals to extend the special appeals procedures. Applying the accelerated appeals procedures to children is consistent with the UNHCR guidelines which emphasise the need for speedy determination of their status. Indeed, it is for this reason that appeals made by unaccompanied children already receive priority listing by the Lord Chancellor's Department. If a child has no claim to refugee status, speedy return to his family in their country of origin can only be beneficial. Clause I would assist in this process.

The Government recognise that applications from unaccompanied children raise sensitive issues and for this reason we do not propose to certify particularly complex or compassionate cases. Each case would be considered on its merits. We would take into account the child's particular circumstances. We would take account of his ability to understand his situation and to take responsibility for his actions. It would not be reasonable, for example, to expect a young child to know whether the passport he had been given was valid. But the same might not be true in the case of a young person of 17. It is right that the Secretary of State should make these judgments on the merits of the individual case.

I should like to turn to the second limb of Amendment No. 30 which deals with disputes over the age of an applicant. The Immigration Rules define an asylum-seeking child as, a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age". Where a young person holds a valid passport showing him to be over 18 the onus is quite rightly on him to show that the age in his passport is incorrect. Where an applicant has no documents, the Immigration Service, with the assistance of the port medical officer as appropriate, will make a judgment on the applicant's age. Amendment No. 30 would reverse the current position and require the Secretary of State to demonstrate that a claimed age for which there was no evidence was incorrect.

My noble friend Lord Renton made an important point. These amendments are not just about age disputes. I agree with him when he asks how age can be determined without the relevant information. The important point is as regards the people who have the information. But if the benefit of the doubt is automatically conceded to the child, that creates a loophole. It was referred to by my noble friends Lady Gardner of Parkes and Lady Rawlings.

It cannot be right to allow a person to make an unsubstantiated claim to be a child in order to circumvent normal immigration controls. If there is a dispute over the age of an asylum seeker, it is open to him to provide documentary or medical evidence to support his claim. Where that evidence is satisfactory we will accept the applicant as a minor, as we have done in a number of cases. But it is entirely right that the burden of proof should remain with the applicant.

Baroness Williams of Crosby

I apologise for interrupting the noble Baroness. However, the case that I raised is in direct contradistinction to what she says. The young man currently in detention has two very senior medical consultants arguing that he is not 18. They have argued that for two years. The young man is still in detention and, if they are correct, he cannot even now be 18, having been kept in detention of one form or another for two years.

The noble Baroness gives the Committee assurances to which that case seems to be in complete contradistinction.

Baroness Blatch

I hope that the noble Baroness will hear me out completely before we discuss specific cases. Of course I shall take away a particular case, if the noble Baroness wishes to write to me about it, and ensure that it is properly investigated.

As I said, it cannot be right to make unsubstantiated claims. Where that evidence is satisfactory, we will accept the applicant as a minor, as we have done in a number of cases. But it is entirely right that the burden of proof should remain with the applicant. For the moment, I rest that case, but I shall come back to the issue.

Amendment No. 45 would prevent any child under 18 who claimed asylum in his own right, whether accompanied or unaccompanied, from being removed to a safe third country. The whole debate has been about unaccompanied children. Not a single word has been prayed in aid of accompanied children. This would make it impossible to reunite a child with his own family if the family were in a safe third country. The amendment is in conflict with UNHCR guidance which states that family reunion should be the first priority for a child. I am not aware of any recent case where we have removed an unaccompanied asylum applicant aged under 18 to a safe third country. We would not take such a step unless we had confirmation that suitable reception arrangements were in place in the third country. It is nevertheless right that we should have the option to remove children under 18 to safe third countries in appropriate cases in order to preserve family unity.

The noble Baroness, Lady Hilton, referred to sending children back without suitable arrangements. If we cannot make suitable reception arrangements for children in this category in the third country, we will simply not remove the child. We will only remove the child if those arrangements can be made. But, as I have said, in some cases the parents are already in the third country. In that case, removal to the third country would be entirely appropriate.

The noble Baroness, Lady Hilton, referred exclusively to unaccompanied children, but the amendment covers all children who seek asylum. No case whatever has been made out for exempting accompanied children.

Statistics are important, too. The provisional figures for the last six months of 1995 indicate that cases referred to the unaccompanied children's module came from the following age groups: 38 per cent. claimed to be 17; 29 per cent., 16; 15 per cent., 15; and 18 per cent., 14. Of all the applications, only four were received from children who were 10 or under.

Since January 1995 only two children in total have been returned: one a young man of 17, to Kenya, and a 16 year-old Chinese boy. In the same period, six children made voluntary departures from this country.

It is better for children who have no further basis of stay in the United Kingdom to return home voluntarily, as that is the most comfortable arrangement. We encourage that option. However, as I said, no child is removed from this country unless we are certain that reception arrangements have been made. Where voluntary departure cannot be agreed, it may be necessary to take steps to enforce the return—as I said, with the necessary arrangements in place. In the past 12 months, only two refusal decisions involving unaccompanied children were overturned by an adjudicator on appeal.

We are not talking about small numbers. Nearly 30 per cent. of asylum seekers last year were recorded as aged between 18 and 24; nearly 60 per cent. were recorded as being under 30. Were we to reverse the burden of proof, we should give many more such applicants an incentive to lie about their age by pretending to be under 18. Cases of that kind have already come to light. As my noble friends Lady Rawlings and Lady Gardner of Parkes said, that would provide a major new loophole for abusive applications, given the very large number of young asylum seeker applications from those who are around the age of 18.

Finally, I turn to an issue that I know concerns everybody in this Chamber and outside it; namely, how we handle unaccompanied child cases. Under the Immigration Rules applications from unaccompanied children must receive priority. Because of their potential vulnerability, particular care is taken in such cases. Their applications are considered against the normal criteria for determining refugee status.

In response to the growing number of applications from unaccompanied children, a specialist unit was established in the Asylum Division in May 1995 to deal with their cases more speedily and consistently—a development that has been widely welcomed. The Government's view is that unaccompanied children whose asylum applications have failed should be returned to the care of their parents in the country of origin. That is wholly in line with the principle of family unity contained in the United Nations Convention on the Rights of the Child. General Assembly Resolution No. 49/172 of 1994 reaffirmed the importance of family reunification.

The Government made it clear during the passage of the 1993 Asylum and Immigration Appeals Act that we will not seek to remove a child under 18 unless it is possible to put in place acceptable reception arrangements in the country of origin.

The Immigration Rules state that a child will not be interviewed about the substance of an asylum claim if it is possible to obtain sufficient information from other sources. Where it is necessary to interview a child, we have always said that it will be done in the presence of an adult.

The Government fund a panel of advisers to assist unaccompanied children in their dealings with the Home Office and other central and local government departments. The panel is administered by the Children's Division of the Refugee Council.

Each local authority has a duty under the Children Act to safeguard and promote the welfare of children in need who are within its area. Those duties extend to unaccompanied child asylum seekers and are unaffected by the Bill. The recently introduced benefit changes will also not affect these obligations.

The Red Cross is also used. All unaccompanied children are notified to the British Red Cross Society for inclusion in its register. We encourage use of the Red Cross placing service to re-establish contact with families.

Our present policy is not to remove unaccompanied children to safe third countries unless we have confirmation that suitable reception arrangements are in place in the country concerned. We are not aware of any recent cases where unaccompanied children have been removed to a safe third country.

If the concern of the Committee is the handling and management of such children, the Government meet that in every sense. If the concern is about making sure that children are considered fairly, and speedily where it is appropriate, the Government meet that too.

I hope that the Committee will agree that if we simply concede to this amendment, first, it is far more encompassing than the noble Baroness, Lady Hilton, has accepted, and we should create a loophole which would take us two steps back from where we want to be with this Bill. Understanding the needs of children is central to the Government's concerns in this matter.

Baroness Hilton of Eggardon

I am grateful for the tone and detail of the Minister's response. We need to examine her remarks with considerable closeness. I am not convinced that expedition and speed in dealing with children necessarily produce justice. We shall therefore return on Report very much to the exclusion of children from the fast-track procedure. Although they may be treated as priority cases and the intention may be to return them with expedition and speed to their families, it may in fact deny them the justice that they should receive. We shall therefore return to this point on Report. I beg leave to withdraw the amendment.

Amendment No. 30, as an amendment to Amendment No. 1, by leave, withdrawn.

Amendment No. 1, as amended, agreed to.

On Question, Whether Clause 1 shall stand part of the Bill?

Lord McIntosh of Haringey

I stayed silent on the Question that Amendment No. 1, as amended, be agreed to. Had we succeeded in overturning that, we should have lost the amendment that the right reverend Prelate the Bishop of Liverpool successfully moved last week. However, I want to oppose the Question that Clause 1 stand part of the Bill. I do so for entirely constructive reasons.

Let me be quite clear from the outset. This is not a wrecking amendment. There is a law, introduced only three years ago, for deciding on what basis asylum appeals shall be considered. It includes the provision for a fast-track procedure for unfounded applications and some restriction on access to the Immigration Appeal Tribunal. My first point is therefore that there is a law; and it is one that the Government have to prove needs changing before we agree to any change.

The second point to be made is that the provisions in this clause, as in Clauses 2 and 3, are entirely voluntary for the Secretary of State. All the provisions in Clause 1 apply, in accordance with line 8 of the clause as agreed, only, if the Secretary of State has certified that, in his opinion", and so on.

On a number of occasions in dealing with individual amendments, the Minister made it clear that the Secretary of State will not act in accordance with the strict provisions of the Bill but will "temper the wind to the shorn lamb". We welcome all the assurances that were made. However, they are not on the face of the Bill. What is on the face of the Bill is that Clause 1 is optional; it need be applied only if the Secretary of State chooses to implement the certification procedure. That means that a Labour Government will not have to repeal the provision; they will simply not have to certify any claim.

I do not wish to go over the broader issues raised at Second Reading about alternative ways of dealing with the increase in the number of applications. (I see from the clock that I have already been speaking for 50 minutes!) Briefly, the Government's figures about unfounded applications are very far from being the truth.

The term, "without foundation", applies under the 1993 Act to a claim rather than to the application itself. A claim may be unfounded; it may be inadequate in the evidence it produces. That does not mean that the application itself is unfounded or that the applicant should not be granted refugee status. But, even so, the Government continue to say that only 5 per cent. of those who apply are recognised as refugees and neglect to say that, because 18 per cent. are given exceptional leave to remain, 23 per cent. in effect have some validity either for refugee status or for exceptional leave to remain.

We know from surveys that have been carried out by the Asylum Rights Campaign that where adjudicators have been involved, they have said that, even though only 5 per cent. are accepted as refugees, nevertheless 35 per cent. of the cases which they deal with are indeed at risk. The Government laid some stress on the change in the refusal rates, which have gone down. This is not because there has been any increase in bogus applications but because there has been a drastic reduction in the number of grants of exceptional leave to remain.

Not in any sense by opposing Clause 1 do we wish to deny the right of and the duty on the Government to examine carefully and strictly applications for asylum and make sure that there is a proper distinction between applications for economic asylum and those which are based on persecution under the 1951 convention. But having attempted in detail to correct the many anomalies and deficiencies in the clause, we are not satisfied with the clause as it stands.

Of course, there has been a significant change made in the clause with the addition of the criterion of torture, introduced by the right reverend Prelates and other noble Lords. We welcome that change and would not wish it to be lost. On the other hand, if the Committee decides not to allow the clause to stand part of the Bill, the evil which that amendment seeks to remedy will no longer be there and there is no need for that amendment. For that reason, I hope that the Lords Spiritual, whom I am glad to see in some number in the Chamber, will feel able to support the Motion that Clause 1 should not stand part of the Bill. They do not lose anything of the victory that they and we all gained last week as a result of that amendment.

As always, the onus is on the Government to show what has changed so dramatically since 1993. I believe that no case has been made in the course of our long and detailed consideration of the detail of the clause and that it would be proper for the clause to be removed from the Bill. I beg to move that Clause 1 do not stand part of the Bill.

7 p.m.

Earl Russell

I must congratulate the noble Lord, Lord McIntosh of Haringey, on his eloquence. That was quite the shortest 50-minute speech to which I have ever listened. I found it very refreshing.

I have listened with as much care as I can to nearly two days of debate about the proposed Clause 1. I cannot say that I am in the least bit reassured. Every now and then, when working very late at night, one's mind makes a little leap. Late at night, I was reading for the 150th time the words "fast track" and, catching sight of the number of the clause, I found myself thinking of "Formula 1" appeals. That, it is well known, is a somewhat risky form of transport. I do not feel that it is inappropriate to the provisions of this clause. There is a great deal in the maxim, "More haste, less speed".

I am sure that anyone who has ever handled an immigration case will agree that a great deal of time is taken in trying to meet impossible deadlines and, because they are impossible, the work has to be done all over again. That has certainly been my experience. Moveover, it is what Judge Pearl, giving evidence to the Glidewell panel said in his opinion would be the effect of the clause. I take his judgment on the matter a very great deal more seriously than mine.

Last Tuesday, when I said that being subjected to the fast track procedure was, in effect, a penalty, I noticed that the noble Baroness shook her head vigorously. Yet, later that evening, she said that the fast track would affect those who seek to frustrate our asylum procedures but that those: who are honest … will not be adversely affected".—[Official Report, 24/4/96; col. 1120.] I took that remark as an admission that, being subjected to the fast-track procedure is, in effect, being adversely affected. So I understand it.

One of the new elements about the fast-track procedure compared with that introduced in 1993 is that it will not consider merely whether the appeal is without foundation. If it is found to be with foundation, it cannot be referred back. The substance has to be considered. If evidence is needed from foreign countries, it can be a very time-consuming procedure. I have great difficulty in believing that justice can be adequately done.

With regard to the designated list, my noble friend Lord Avebury did the House a great service with the amount of detail that he brought out about the countries selected for designation. My noble friend Lady Seear summed it all up. She said: "If these are the countries that get onto the list, what on earth do you have to do to get off it?" I cannot improve on that remark.

I also feel that in the basic procedure there is discrimination by nationality. I quoted to the noble Baroness Article 3 of the UN convention, which is a legal obligation that this country recognises. We are rightly proud of the way in which we adhere to our legal obligations. That article says: The Contracting States … shall apply the provisions of the convention to refugees without discrimination as to race, religion or country of origin". The noble Baroness objected to that reading on the grounds that the word "refugee" applied only to those whose claim had been accepted. I know that there are passages in international law where the word "refugee" does have that meaning. So I took legal advice on its meaning in the context of the convention. I took it from a quarter that I find far more persuasive than any legal advice available to the Home Office. The advice I received was that under Article 3, and in the words of the convention as a whole, one is a refugee from when one applies until someone proves that one is not. Should that prove to be the opinion of the International Court of Justice, we should clearly be found on that article to be in breach of the convention.

At the very least, this clause puts a new hurdle in the way of applicants from some countries and not from others. If that is not discriminatory, I do not know what is. But my gravest dismay concerns sub-paragraph (3) in Clause 1, which insists on supplying accurate information on arrival. I promised the noble Baroness, Lady Gardner of Parkes, that I would debate the issue on the clause stand part debate and not earlier. I have never stood more astonished at my own moderation than when resisting taking up the issue when she raised it.

My first point is that I believe that we are plainly in breach of our international obligations in taking that line. Under Article 31 of the UN Convention: The Contracting States … shall not impose penalties on account of their illegal entry or presence on refugees who, coming directly from a territory where their life or freedom was threatened, in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good reason for their illegal entry or presence". If that is the international law to which we are subject, the argument that all applications must be made at the ports is most plainly in breach of it.

My second reason for deploring the argument that all applications must be made at ports is the right to representation. We all find immigration law confusing.

Indeed, many of us have addressed our remarks to the wrong part of the Bill and the noble Baroness who drew our attention to that fact must admit that that is so. I do not believe that we are an exceptionally stupid group of people. If we can make that mistake, so can refugees operating in a foreign language. They need representation to help them represent their case and depriving them of that is an extremely severe affliction. That alone would be a reason for saying that the Government are mistaken in insisting that all applications should be made at the port of entry.

My third reason is that mistakes can be made. Mistakes at the port of entry are not easy to rectify. The noble Baroness will have noticed that I quoted throughout the debate from Home Office refusal letters. The survey from which those came was greeted by the Home Office with the comment that they were exceptional. For all I know that may be so; I am not contesting the point. What I say is that if they are exceptional, there are a great many exceptions. If we are to be asked to accept the judgment of those at the ports as the only judgment we are going to get, we need a much higher overall standard than any of which we have yet seen the least evidence.

The noble Baroness talks of abuses. This clause will create far more abuses than it prevents. It sweeps them all up together. As 1066 And All That says about the Zulu War: cause—Zulus; Zulus exterminated—peace with Zulus. That will be the effect of the clause.

7.15 p.m.

Baroness Blatch

The provision set out in Clause 1 is a principle which Parliament endorsed when it passed the 1993 Act. Paragraph 5 of Schedule 2 to that Act provides an accelerated appeal for claims which the Secretary of State certifies as being without foundation. In the light of the growing levels of unfounded applications, the time has come to build on those arrangements. Streamlining is a necessary component of any effective policy for bringing down the large backlog of unresolved cases. And it will also send a strong signal that unfounded claims will be met by robust procedures.

We have already debated this clause in some detail in discussion of proposals for amendments. Much of the concern that has been expressed has been based on misunderstanding of its intention and effect. It is worth reminding the Committee that there are two basic procedural safeguards that will not be infringed in any way by this clause. First, all asylum claims will continue to be considered on their merits against the same convention criteria as all other claims. A certificate under Clause 1 cannot be issued until that has been done. And, secondly, before removal to their country of origin all applicants will continue to have the right to appeal to an independent adjudicator against an adverse decision on their claim.

Clause 1 will allow the Secretary of State to designate countries where there is in general no risk of persecution. We have given an account of how that power will work, what criteria will apply, the factors we will take into account, the countries we would designate if the power were available now, and our proposals for informing Parliament of the assessments upon which the decision to designate will be taken. The designation principle is not new. Germany, the Netherlands, Switzerland, Denmark and Finland already operate similar arrangements. And let me remind the Committee again of two key points. There will be no blanket ban on claims from designated countries. And applicants will still have an appeal to an independent adjudicator.

But designation will provide the context against which claims from designated countries are considered. And claims which are refused will attract the accelerated appeal procedure, with shorter deadlines for making, hearing and determining appeals. Moreover, if the adjudicator agrees with the Secretary of State that the application is unfounded, that will be the end of the matter. There will be no further avenue of appeal to the Immigration Appeal Tribunal. Last year, at least 97 per cent. of claims from nationals of the seven countries we have indicated as candidates for designation were refused. That is over 6,750 applications. It cannot be right that we must give equal time and weight to claims from countries like Poland, Romania, India, Pakistan, Bulgaria, Cyprus and Ghana as to claims from countries like Iraq, Afghanistan or Liberia.

Earl Russell

The noble Baroness just said that we cannot give equal weight. Has she not abandoned her claim under international law to give claims individual scrutiny? Has not the Home Office just lost another court case?

Baroness Blatch

No. I am saying that individual cases will be properly considered. They will be fully considered. We are making the distinction between those countries from which most applications come and from which most applications fail. If the noble Earl believes that we are in breach of our international obligation by the inclusion of that provision in the Bill, no doubt it will come to light before the end of the proceedings on the Bill through this Chamber.

On the parliamentary procedure for designation orders, the Government accepted the recommendations by the Delegated Powers Scrutiny Committee. The Chamber discussed the degree of safety required for designation. Some entirely misplaced concerns have been expressed about the test required by the Bill. I have made clear that the words, in general no serious risk", do not mean that it would be lawful to designate a country where there was a serious level of persecution aimed at minorities. Nazi Germany patently could not have qualified.

Clause 1 will also allow us to certify refused claims where, on arrival, the applicant was unable without reasonable explanation to present a travel document, or where an applicant obtains or seeks to obtain entry using false papers. The Committee rightly resisted a proposal to delete that provision from the Bill. Destruction of travel documents by asylum seekers attempting to impede the asylum consideration process is a growing problem. We accept that genuine refugees may need to use false papers in order to flee their country. The clause will not affect them, provided they present and declare their papers on arrival. Provided they do that, no certificate will be issued under sub-paragraph 3, even if asylum is refused.

The noble Earl, Lord Russell, referred first to Article 3. Our own courts in this country, in his challenge to the benefits restrictions, rejected the interpretation of "refugee" put forward by the noble Earl. I must put the question back to the noble Earl, who cited Article 31 of the United Nations Convention. I shall re-read it for the purposes of the point I want to make. It states: The contracting state shall not impose penalties on account of their illegal entry or presence on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence". Nothing in Clause 1 is in breach of that article of the United Nations Convention. I am not sure therefore that I accept the point made by the noble Earl.

Clause 1 introduces other new criteria for certifying that a claim is without foundation. They include claims the basis for which no longer subsists; those lodged only after the refusal of leave to enter or the commencement of removal action; and those which are manifestly fraudulent. We have made clear in our background note the intended scope of these provisions.

Each of the new criteria has a specific application. The clause will not allow us to certify all refused claims. A substantial proportion of cases will continue to fall outside the scope of the certification procedure and will therefore attract the standard appeal rather than the accelerated one. The role of the Immigration Tribunal in developing immigration case law will therefore remain.

Clause 1 will enable manifestly unfounded claims to be processed more quickly. That will help to deter such claims from being made in the first place. Genuine refugees will benefit from reduced abuse of the asylum system. The proposals are a sensible and balanced improvement to our procedures.

In opposing Clause 1, the sum of the amendments tabled to the clause by the Opposition adds up to the fact that some Members of the Committee do not accept the case for an extension of the accelerated appeals procedure.

We believe that a case has been made and I commend the clause to the Committee.

7.19 p.m.

On Question, Whether Clause 1 shall stand part of the Bill?

*Their Lordships divided: Contents, 133; Not-Contents, 81.

Division No. 2
Abinger, L. Ashbourne, L.
Ackner, L. Balfour, E.
Addison, V. Belhaven and Stenton, L.
Aldington, L. Blaker, L.
Allenby of Megiddo, V. Blatch, B.
Boardman, L. Lane of Horsell, L.
Bowness, L. Lauderdale, E.
Brabazon of Tara, L. Lindsay, E.
Bridgeman, V. Lindsey and Abingdon, E.
Brigstocke, B. Liverpool, E.
Brougham and Vaux, L. Long, V.
Burnham, L. Lucas, L.
Butterworth, L. Lucas of Chilworth, L.
Cadman, L. McColl of Dulwich, L.
Caithness, E. Mackay of Ardbrecknish, L.
CarnegyofLour, B. Mackay of Drumadoon, L.
Carnock, L. Marlesford, L.
Chalker of Wallasey, B. Masham of Ilton, B.
Chelmsford, V. Mersey, V.
Chesham, L. [Teller.] Miller of Hendon, B.
Chorley, L. Monk Bretton, L.
Clanwilliam, E. Montgomery of Alamein, V.
Clark of Kempston, L. Mottistone, L.
Colwyn, L. Mountevans, L.
Courtown, E. Mowbray and Stourton, L.
Craigavon, V. Munster, E.
Cranborne, V. [Lord Privy Seal] Murton of Lindisfarne, L.
Crickhowell, L. Newall, L.
Cross, V. Norrie, L.
Cumberlege, B. Northesk, E.
DeL'Isle, V. O'Cathain, B.
Dean of Harptree, L. Oxfuird, V.
Denton of Wakefield, B. Park of Monmouth, B.
Dilhorne, V. Pearson of Rannoch, L.
Dixon-Smith, L. Peel, E.
Donegall, M. Perry of Southwark, B.
Dundonald, E. Peyton of Yeovil, L.
Eden of Winton, L. Pilkington of Oxenford, L.
Elles, B. Rankeillour, L.
Elliott of Morpeth, L. Rawlings, B.
Elton, L. Rennell, L.
Finsberg, L. Renton, L.
Flather, B. Renwick, L.
Gardner of Parkes, B. Sainsbury of Preston Candover, L.
Gisborough, L. Sandwich, E.
Glenarthur, L. Seccombe, B.
Goold, L. Shannon, E
Goschen, V. Sharples, B.
Gowrie, E. Shaw of Northstead, L.
Gray of Contin, L. Stewartby, L.
Halsbury, E. Stockton, E.
Harding of Petherton, L. Stodart of Leaston, L.
Harlech, L. Strange, B.
Harmar-Nicholls, L. Strathcarron, L.
Hemphill, L. Strathclyde, L. [Teller.]
Henley, L. Thomas of Gwydir, L.
Hesketh,L. Tollemache, L.
Hogg, B. Trumpington, B.
Holderness, L. Vivian, L.
HolmPatrick, L. Wade of Chorlton, L.
Hylton-Foster, B. Wakeham, L
Jeffreys, L. Wharton, B.
Kimball, L. Whitelaw, V.
Kingsland, L. Wilcox, B.
Kinloss, Ly. Wise, L.
Kinnoull, E. Wynford, L.
Knutsford, V. Young, B.
Acton, L. Clinton-Davis, L.
Addington, L. Cocks of Hartcliffe, L.
Avebury, L. David, B.
Barnett, L. Dean of Beswick, L.
Beaumont of Whitley, L. Dean of Thornton-le-Fylde, B.
Birk, B. Donaldson of Kingsbridge, L.
Borrie, L. Dormand of Easington, L.
Bristol, Bp. Dubs, L.
Carmichael of Kelvingrove, L. Ewing of Kirkford, L.
Chester, Bp. Falkland, V.
Chichester, E. Farrington of Ribbleton, B.
Fisher of Rednal, B. Merlyn-Rees, L.
Freyberg, L. Meston, L.
Gallacher, L. Milner of Leeds, L.
Gladwin of Clee, L. Murray of Epping Forest, L.
Graham of Edmonton, L. [Teller] Nicol, B.
Gregson, L. Rea, L.
Grey, E. Redesdale, L.
Hamwee, B. Richard, L.
Harris of Greenwich, L. Ripon, Bp.
Haskel, L. Rochester, L.
Hayman, B. Rodgers of Quarry Bank, L.
Henderson of Brompton, L. Runcie, L.
Russell, E
Hilton of Eggardon, B. Seear, B. [Teller.]
Hollis of Heigham, B. Sefton of Garston, L.
Hooson, L. Serota, B.
Howell, L. Sewel, L.
Howie of Troon, L. Shepherd, L.
Hylton, L. Stoddart of Swindon, L.
Jenkins of Hillhead, L. Taylor of Gryfe, L.
Jenkins of Putney, L. Thomson of Monifieth, L.
Judd, L. Thurlow, L.
Kilbracken, L. Tope, L.
Kirkhill, L. Wallace of Saltaire, L.
Lincoln, Bp. Warnock, B.
Lockwood, B. Wedderburn of Charlton, L.
McIntosh of Haringey, L. Whaddon, L.
Mackie of Benshie, L. White, B.
Mallalieu, B. Williams of Crosby, B.
Mayhew, L. Winston, L.

*[See col. 1558]

Resolved in the affirmative, and Clause I agreed to accordingly.

The Earl of Courtown

I beg to move that the House do now resume.

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

House resumed.