HL Deb 30 April 1996 vol 571 cc1558-642

House again in Committee.

The Deputy Chairman of Committees (Lord McColl of Dulwich)

Before I call Clause 2, I should inform Members of the Committee that in Division No. 2 the number of noble Lords who voted "Content" was 134 and not 133 as announced.*

*[see col. 1544]

Clause 2 [Removal etc. of asylum claimants to safe third countries]:

The Lord Bishop of Ripon moved Amendment No. 31: Page 2, line 34, at beginning insert— ("(A1) Nothing in this section shall be construed as applying to—

  1. (a) a person who can show a reasonable claim that he has been the victim of torture in a country in which he is claiming to fear persecution; or
  2. (b) a person who is claiming to fear persecution in a country which has a recently documented record of torture.").

The right reverend Prelate said: This is the first of the amendments relating to Clause 2. Its wording is identical to an amendment which was accepted in Committee last week. However, I believe that it is worth spending a moment looking at the implications of the amendment for Clauses 2 and 3. The combination of those two clauses effectively, in my view, removes the right of appeal against removal in certain cases. Therefore, it is a damaging provision for asylum seekers.

Under Clause 2, certain categories of asylum seeker can be removed to a safe country, which we know now is to be limited to countries in the European Union, and Clause 3 limits their right of appeal to one which is to be made from outside this country. It is clearly the case that on occasions those countries which are claimed to be safe have not proved to be so. Indeed, various examples can be given of countries such as Italy and Belgium, which have, in certain circumstances, returned asylum seekers when it was thought that they would be secure.

It is clear that the combination of those two clauses makes it possible that asylum seekers will effectively be removed beyond the safe third country before they have had the opportunity to exercise their right of appeal. In those circumstances, it seems right that we should consider the implication of this for those who come under the terms of the amendment. I do not propose to repeat the debate which took place last week, but it was made clear then that there was considerable feeling in the Committee over the matter regarding those who had either been victims of torture or who claim, to fear persecution in a country which has a recently documented record of torture". It would be helpful to know what is the Government's intention in relation to Clauses 2 and 3 and with regard to the amendment. In the light of last week's Committee decision, do the Government regard it as right that the provisions of that amendment should in fact be taken to refer to Clauses 2 and 3, as well as to Clause 1? I should be most grateful if the Minister could make some comment in that respect. I beg to move.

Lord Dubs

I rise to express my support for the amendment. I seems to me that one of the key difficulties with Clause 2 is that there are insufficient safeguards against the asylum seeker who is removed to a safe third country being in turn removed to another country and then possibly to the danger that he faced when he originally fled. That is the crux of the safe third country argument. If we had sufficient safeguards it would not be such a critical issue. In the absence of such safeguards, we must have cause for concern. The amendment exemplifies precisely why there is so much cause for concern.

Members of the Committee agreed last week that we must pay particular regard to the victims of torture. It would seem to me to be the worst possible outcome if individuals who were liable to be sent back to face torture were removed from this country with no assurance that the immediate country to which they were removed would allow them to remain there. We have real difficulties in that respect.

The evidence of the Medical Foundation for the Care of Victims of Torture (which carries out such an excellent job in looking after those victims) has drawn attention to the fact that the hypothesis that I have developed is actually a very real one and that, at times, people are returned or are close to being returned to countries from which they will in turn be removed immediately to the country where they were threatened with, or possibly subjected to, torture.

Baroness Williams of Crosby

The view of the Committee with regard to the issue of victims of torture seems to me to have been very clearly reached on the first day of our proceedings. As the right reverend Prelate pointed out, the purpose of the amendment is to extend that safeguard to cover Clause 2. As the noble Lord, Lord Dubs, said, Clause 2 raises the whole issue of what is sometimes called "a safe third country". The United Kingdom Government is bound to comply with Article 33 of the UN convention on refugees, which states very plainly that no country on any grounds whatever may return an asylum seeker to another country without the certainty that he or she will be safe in that country.

The fear is that, even though the list of countries provided by the Government is limited to the European Union plus, as I understand it, other countries specifically designated by the Secretary of State, there are real concerns about what may arise in certain cases. Indeed, in some cases there are very close connections between third countries and others closely associated with them. That is particularly true of metropolitan countries and their former colonies, to which refugees or asylum seekers may be returned, subject to the rules on refoulement of the UN Convention, without the authorities having adequately satisfied themselves that those people will be safe in the country in question.

A kind of brutal "pass the parcel" is emerging among countries of the world in sending refugees to and fro among themselves. It is because we very much fear that process that we are trying to exempt those who are victims of torture from the provisions of Clause 2, as well as those in Clause 1. I am delighted to support the right reverend Prelate in his amendment.

Lord Runcie

I should like to add just a few words in support of the right reverend Prelate, not least because my name is attached to the amendment. It was not my intention to make a speech; indeed, I have not come here armed with one. In the light of the debate on the previous amendment of this character, I had assumed that the matter would also be settled as regards Clause 2. That was, perhaps, rather naïve of me.

What prompted me to respond to an invitation to back the amendment was simply my own experience in helping to set up the Medical Foundation for the Care of Victims of Torture, which has pioneered the identification, the treatment and, indeed, a greater awareness of the existence of torture. I should also like to express my admiration for the work of Helen Bamber and her associates during that period. It was at that time that I was able to spend some time at the foundation and saw for myself the victims of torture in Iraq, or the effects on the Kurds. I was most impressed by the expertise which had been built up there.

That led me to believe that the UK had established a reputation in drawing the attention of the international community to the existence of torture and the possibilities in the identification and treatment of torture. I was convinced that in any new Bill about asylum, the appalling phenomenon of torture in the present day should be established in the provisions, and that this country should even err on the side of generosity when it came to the consideration and treatment of people who came from countries where torture was a recognised practice. I therefore support the amendment.

Baroness Rawlings

We have debated the subject of torture already under Clause 1. Of course genuine victims of torture will be protected by the Bill. However, what worries me is that yet again the amendment is not about the victims who have been tortured and who seek asylum. Forgive me if I have misunderstood, but, as I understand it, the proposals are to allow asylum seekers into the country, not if they have been tortured themselves but merely if they come from a country where torture exists.

8.45 p.m.

Baroness Blatch

I believe that someone said from a sedentary position that the amendment does not say that. However, I believe that the second limb of it does say that. The noble Lord, Lord Dubs, was concerned about safeguards. I join him in that I too and the Government are concerned about safeguards. However, with a note of cynicism, I must say that it does not matter how I describe the safeguards and tell the Committee that they exist, some Members of the Committee will refuse to accept my word.

Amendment No. 31 is concerned with the minority of cases where we decide to remove an applicant to a safe third country. But before I speak to that amendment, I propose to add to what I said last week about cases which are considered substantively in the United Kingdom.

All sides of the Committee agree that torture is utterly repugnant. All agree that the aim of our asylum procedures must be to protect victims of torture. But it is clear from last week's debate that many of your Lordships remain unpersuaded on two key issues. First, that our procedures do in fact provide effective protection and would continue to do so under the Bill. That is not believed. Secondly, that most current asylum applicants are at least unfounded and at worst abusive; and that if we provide loopholes they will be exploited on a large scale. Let me begin by addressing those two key issues.

I address the safeguards first. Our objective is to ensure that victims of torture are identified. The Asylum Directorate takes account of all available evidence, in particular about the individual case, but also about whether there is a consistent pattern of serious human rights violations in the country of origin. Claims are considered against the 1951 convention criteria. That is to say, a well founded fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion. There is no universally agreed definition of persecution and it may take many forms. But the Government have no doubt that torture is one of them and that a person with a well founded fear of torture will qualify for asylum under normal conditions.

Victims of torture who have not been persecuted for a convention reason do not therefore qualify for asylum. But we are also bound by our obligations under other international instruments. Article 3 of the European Convention on Human Rights and Article 3 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment both prohibit removal to a country where there are substantial grounds for believing that the applicant would be tortured. It has been suggested that because these instruments are not incorporated into UK law, they provide insufficient protection for victims of torture. I refute that. First, if an applicant engages our obligations under either the UN convention on torture or the European Convention on Human Rights, but not under the 1951 convention—for example, because the reason for the fear of torture is not one specified in the criteria for refugee status—exceptional leave will normally be granted. Secondly, individuals have an avenue of redress under the European Convention by taking their case to the European Commission and the European Court of Human Rights in Strasbourg.

One of the first elements in the induction training for asylum case workers is to raise awareness of the barriers genuine refugees may face in relating their experiences to officials. Additional training is given to those who will interview asylum applicants. Detailed guidance and training on assessing asylum claims, including the appropriate standard of proof to apply, also form an element of the induction programme. The United Nations High Commission for Refugees and other independent bodies contribute to the Asylum Directorate's training. At a meeting with officials on 3rd April the Medical Foundation for the Care of Victims of Torture has now also been invited to contribute to training. I join the noble Lord, Lord Runcie, who referred to the important work of the medical foundation.

Very great weight is attached to any medical evidence. If an applicant claims to have been tortured, the case worker will ask whether an examination has been carried out and request a copy of the report if it has not been submitted. Case workers also have access to the guidelines for the examination of survivors of torture which have been prepared by the medical foundation. We are considering some suggestions by the foundation for structuring the interview in such a way as to create an environment which encourages applicants even further to disclose fully the details of their claim; for example, through the greater use of open-ended questions. It is already our policy to seek to provide an interviewer of the same sex as the applicant in cases identified as sensitive.

Last week there were some misconceptions about the time allowed for consideration. The Bill does not affect the initial decision time. At present, the average decision time for a new claim is nine months, except in cases handled under the Home Office's short procedure, where cases are at present decided in three to six weeks.

The short procedure involves a shorter interval between application and interview, and between interview and decision. But interviews and decisions are accorded the same level of consideration and under the same standard of proof as other cases. The standard the applicant has to meet is a modest one—no more than a reasonable likelihood of persecution. None of that would be changed by the Bill. Any case which proves not to be straightforward can be taken out of the short procedure and considered at greater length. Requests for an extension in individual cases so that medical evidence can be prepared are very carefully considered. We have issued an instruction that the refusal of such a request by the medical foundation must not be taken at a lower level than senior executive officer. Medical evidence submitted after an initial refusal will be fully considered. If the refusal is maintained, reasons for doing so would normally be given in writing.

All evidence submitted after the Home Office decision is also considered by the adjudicator. It is open to an adjudicator to grant an adjournment to enable the applicant to produce further evidence, including of course evidence of torture, if he considers this necessary in the interests of justice. Again, neither the proposed new procedural rules nor the Bill itself will remove the possibility of adjournment where it is justified.

That is a summary of the safeguards which apply. We are not complacent and want the safeguards to be as effective as we can make them. That is why we asked officials to discuss them with the medical foundation.

But we also have to take into account the other side of this equation; namely, the widespread exploitation by abusive applicants. The Bill's opponents have so far had very little to say about that side of matters. Indeed, some have sought to pass off the problem of abuse of asylum procedures as a figment of the Government's imagination. That position is, however, untenable in the face of overwhelming evidence to the contrary. Last year only 5 per cent. of applicants were found to qualify for asylum and another 16 per cent. for exceptional leave to remain on compassionate grounds. That leaves 79 per cent. of claims which were refused. If the Home Office were refusing large numbers of genuine applicants, it would be losing large numbers of appeals. But the fact is that only 3 per cent. of appeals against refusal of asylum were upheld last year. Some of our critics, such as the Asylum Rights Campaign, have sought to counter this very telling statistic by attributing the appeal results to bias on the part of adjudicators. Words fail me. Such a claim is totally unfounded. Adjudicators are experienced members of the legal profession, appointed by my right honourable friend the Lord Chancellor, and are wholly independent of the Home Office.

That is why the Government opposed Amendment No. 3 last week. Applicants would be able to avoid having their appeal accelerated merely by claiming that they had been tortured, no matter how untruthfully, or by pointing to instances of brutality by members of their country's police or security forces, no matter how isolated or irrelevant to the applicant's individual circumstances.

However, the Government accept that the Committee has expressed a clear wish that we should acknowledge the special vulnerability of victims of torture, and should do so on the face of the Bill. We therefore intend to bring forward at Report a modified amendment to Clause 1. Broadly speaking, this would reflect the principle that there should be an exemption for victims of torture from the accelerated appeal procedure, but it would be expressed in a way which would avoid laying Clause 1 wide open to evasion by people who are not victims of torture.

I have indicated the extensive safeguards that apply to protect victims of torture. I shall now turn to Amendment No. 31, which is concerned with the minority of cases which we do not consider substantively, and where we decide instead to remove the applicant to a safe third country. These are almost always applicants who claim asylum after arriving here from one of our western European neighbours—in 80 per cent. of cases from France, Germany, Belgium or the Netherlands.

The Government take a very straightforward view of such cases. First, we consider that our immediate neighbours, all of whom are advanced democracies with developed legal systems and asylum procedures, are just as capable as we are of complying with their international obligations and protecting individual rights. This means that, if someone is a genuine refugee or victim of torture, he will be just as safe presenting his claim in Germany as he will be presenting it here. Secondly, like all European countries, we take the view that asylum seekers should look for refuge to the first safe country to which they come. If they arrive from a safe third country in which they could have claimed asylum, we reserve the right to return them. That is a long-standing principle which is, for example, already stated in the Immigration Rules. Indeed, it is embodied in the Dublin Convention, which Parliament endorsed in 1991.

The purpose of Clause 2 is to render the safe third country policy more effective by removing the delays inherent in an in-country right of appeal. But Amendment No. 31 would insert a very large loophole into Clause 2. The first part of the amendment says that the Secretary of State should be prevented from returning an asylum seeker to a safe third country if the applicant has shown a reasonable claim that he is a victim of torture. This would mean that, by including a torture claim in his application, the asylum seeker would be able to fend off removal. In order to form a view on whether the applicant had "shown a reasonable claim" of torture, the Secretary of State would be compelled to assess the asylum claim substantively. By the time he had done that, removal to the third country would probably no longer serve a useful purpose, and the third country would often no longer be prepared to take him back. The whole purpose of the safe third country policy is to enable applicants to be removed quickly without substantive consideration of the claim. For that reason alone, Amendment No. 31 could render Clause 2 ineffective and is therefore unacceptable to the Government.

The second leg of the amendment would prevent removal to a third country if the country of origin has a recently documented record of torture. That is a totally irrational proposition. If a third country is indeed safe, why should the conditions of the country of origin be regarded as an obstacle to removal? Moreover, there are very few countries where there are not from time to time allegations of misconduct by members of the police or security forces. But that is very different from saying that torture is systematic or widespread, or that a particular applicant would be at any risk of torture if he were returned to his country. This part of the amendment alone could very well be used by appellants to prevent the issue of a Clause 2 certificate in a high proportion of cases, without any basis in a substantial risk to the applicant.

Do the supporters of the amendment deny that it would render Clause 2 inoperable? Do they deny that it would establish a loophole which could be widely exploited? I have not heard a convincing response to these questions. The truth is that many of the Bill's critics reject the Bill's asylum provisions altogether and would not mind in the least if Amendments Nos. 3 and 31 rendered them ineffective.

Some have argued that it is inhumane to remove an applicant, even if it is only to one of our European neighbours, if he or she is suffering the traumatic effects of torture. Of course, we do not remove people if they are medically unfit to travel. If there are concerns on that score, the port medical officer is on hand. But the Government do not accept that anyone who claims to have been tortured should be exempt from removal. That would, as I said earlier, simply create too big a loophole. If they are genuine refugees and genuinely too traumatised to travel, they would have shortened their journey by claiming asylum before reaching the United Kingdom in the third safe country through which they travelled.

Amendment No. 31 is irrational, unjustifiable and would be very damaging to Clause 2. I urge the Committee to vote against it.

The Lord Bishop of Ripon

Before the Minister sits down, perhaps I may press her on one point. The noble Baroness said that the Government will bring forward an amendment at Report stage in order to ensure that the victims of torture are referred to on the face of the Bill. I am very glad to hear that. Is she willing to explore the possibility of that amendment being applied also to Clause 2?

I take the point that few people may come within the category of victims of torture likely to be removed in that way. In that case, the amendment would have little effect. However, in view of the widespread concern on the matter, will the noble Baroness state whether the government amendment will extend to Clause 2 as well as Clause 1?

Baroness Williams of Crosby

Before the noble Baroness responds, perhaps I may raise the possibility of the short procedure being extended to other countries. It was announced by the Home Office on, I think, 16th March of this year. Can the Minister tells us whether the safeguards which she told us applied to people who conceivably might be victims of torture would still apply if the short procedure were extended beyond the group of countries on the designated list?

Lord Avebury

Before the Minister finally replies, perhaps I may raise this point. If she is prepared to consider an amendment to Clause 2, will she differentiate between countries through which an asylum seeker has passed? As she described, the majority of these cases fall into the category whereby someone has entered Britain via a European Union state and might have claimed asylum on the way through. In other cases, the person arrives in this country as effectively the first country of asylum because any other territory through which he passed was not a safe country. The Government propose to send the individual to an allegedly safe country through which he has never passed. I realise that there are not many such cases. However, I asked the noble Baroness's honourable friend, Miss Widdecombe, whether there was any intention of applying the Dominica technique to other asylum seekers, apart from Dr. al-Mas'ari. She said that the Government would do so if the circumstances made that seem expedient. I wish to place a barrier on the removal of asylum seekers who may have been subject to torture to a third country which falls into that category.

I would prefer that the Government do not have the power to send individuals to allegedly third countries outside the European Union. But since we are now referring to these particular asylum seekers who have been subject to torture in their countries of origin, and since the right reverend Prelate has asked whether the Government are prepared to consider any amendment to Clause 2, it would be wholly within the spirit of the Government's objection that the vast majority of such people come through safe third countries if such an amendment applied only to third countries through which those individuals had not passed. I hope that the Government might take that point on board before Report stage.

Lord Hylton

Before the noble Baroness replies, perhaps I may, first, apologise that I was in Russia during the first day of the Committee stage. I apologise too that I was unable to listen to the right reverend Prelate the Bishop of. Ripon moving this important amendment.

Does the Minister accept that Turkey is a country with a recently documented record of torture? Will she also confirm that Turkey has experienced very nearly 12 years of very serious armed conflict, which has led to enormous displacement of population and extreme abuses of human rights? Does she agree that torture has to a considerable degree become institutionalised, and anybody detained by the security services in that country is at some risk of torture? Will she tell the Committee whether any abusive applications for asylum in this country have been received from people coming from Turkey?

9 p.m.

Lord Dubs

I shall make just a few comments in relation to the Minister's remarks before she replies. I am disappointed that she thinks some of us do not listen to the safeguards that the Government apply to—

Baroness Blatch

I said, "did not believe".

Lord Dubs

The Minister says that we do not believe the safeguards. We should have to discuss which ones they were. Certainly, where there are safeguards which protect an individual asylum seeker, I welcome them, as I am sure do other Members of the Committee.

If we do not believe all the safeguards, it may have nothing to do with the Minister's remarks. It may be because we have some experience of the Government's practice over the years as regards asylum seekers. There is sometimes a difference between the way asylum seekers are treated and the Government's statements as to what the policies are. That is where disbelief sets in. I do not cast any aspersions on what the Minister says. It is a matter of how the policy is implemented down the line. There are too many examples of how it has been implemented for some of us to sit back and say that everything is all right.

A second point made by the Minister to which I wish to draw attention was that there was a safeguard in the European Convention on Human Rights and the European Court of Human Rights. Although Britain has lost more immigration cases in the European Court of Human Rights than any other European country, possibly second to Italy—the Minister says that that is not so; but the fact is, we have lost a large number of immigration cases over the years. The problem is that it is a long process. Many asylum seekers may have been removed and returned to the country from which they fled. In those circumstances, fighting a case is very difficult.

Thirdly, none of us condones or supports abusive applicants. They undermine the concept of asylum, which is a fundamental human rights concept. It is easy for governments to say that applications are abusive even before there is any evidence of that. The Minister herself has certainly not said that. However, I must remind her that some of her colleagues over the years have, as it were, denied that asylum seekers had any basis for their claims even before those individual cases had been considered. There is extensive chapter and verse which I and many of my noble friends could quote to support that assertion.

I turn to the substance of the Minister's remarks. There is a real difficulty. She said that such cases are not considered substantively. The problem with removals to safe third countries is precisely that; namely, the Government on their own admission do not consider those cases substantively. I have serious doubts as to what that means in terms of the adequacy of their scrutiny. I fear that many are barely considered at all. The difficulty is that as a result of a case not being considered substantively, victims of torture may not be identified by officials. That is surely one of the main concerns in relation to Clause 2 and the way it operates.

The Minister talked about the tradition of safe third countries and said that it was a long-standing principle. I beg to differ. It is a long-standing principle that individual asylum seekers who have spent a considerable period of time in a safe third country should be returned there. By "a considerable period of time" I mean weeks or months. That has been the practice for many, many years. I cannot remember the date when the Immigration Rules were changed; I believe the policy emanated from one of the secret committees in Brussels. However, what has happened in the past two or three years is that the Immigration Rules themselves incorporated a change, and certainly the practice then became that if an asylum seeker spent any period of time in a safe third country en route to Britain—I mean circumstances such as being in transit at an airport, or spending just two or three hours driving across part of that country—that is now the basis for applying the safe third country rule. That is what causes concern.

Nobody says that if an asylum seeker spends three months in France, he or she should then be accepted into our asylum procedures here. What I am saying, however, is that if somebody happens to spend half an hour in transit at Charles de Gaulle Airport, it seems against this principle that that individual should be sent back to France without any firm guarantee (as we shall cover in relation to a later amendment) that the individual will then be allowed to have his or her claim fully considered by the French authorities. It is the absence of that further safeguard that makes us concerned that the effect of these proposals is that victims of torture—and, as later amendments will show, other asylum seekers as well—may be sent back into danger. There is a loophole here which the Government's assurances have not dispelled.

Baroness Blatch

A very large number of questions have been raised. I shall try to address myself to all of them. First, I accept what the noble Lord, Lord Dubs, just said. I have never made the claim that he condones abuse of the system. However, if one looks at the amendments tabled to this Bill, many seek to make abuse of the system easier; and some not only make it easier but create even more loopholes which make it possible for abuse to be increased.

In regard to the other point made by the noble Lord, Lord Dubs, about simply landing in another safe country, travelling to another safe country, and then coming on to this country, we do not concede—nor indeed do our courts—the principle of seeking asylum in the first safe country on the assumption that the person fleeing for their lives or from a fear of persecution should seek haven in the first safe country that they come to. That is the principle on which the propositions in the Bill are made.

The safe third country principle has been repeatedly endorsed by our own courts. It applies when a person has had an opportunity to claim in a third country. The noble Lord, Lord Avebury, referred to Judge Pearl and the al-Mas'ari case. The judge held in the al-Mas'ari case that it is lawful to send an asylum seeker to a country with which he has no connection where appropriate. Of course, he took a different view about a particular country in that case, but the principle of sending persons to that country as a safe country was considered lawful.

The noble Lord, Lord Hylton, asked about Turkey. First, I made it clear in another part of the Bill—I believe on the first day of Committee—that Turkey is not a country that we were considering adding to the list, for some of the reasons given by the noble Lord. In 1995, 50 applicants were recognised as refugees; 35 were granted exceptional leave to remain; and 910 were refused. But I am not in a position to say on what basis those refusals were founded. Certainly there were 910 refusals.

Again, the noble Lord, Lord Dubs, referred to the ECHR. His point was absolutely taken about the length of time. But however long the process, we shall not remove a person until Strasbourg has made a determination and completed the work in considering that case.

Lord Dubs

I thank the Minister for giving way. I understand what she said. The difficulty is that under the safe third country rule individuals are removed very quickly. Getting a case en route to the European Court of Human Rights in Strasbourg takes a long time. It will be almost impossible for an asylum seeker to take advantage of that particular provision, given the speed with which people are removed.

Baroness Blatch

What is important is that the needs of the asylum seeker are properly catered for. If the asylum seeker is quickly removed—I believe that I have already made the point, and I hope very clearly, that we would not send someone who was medically unfit to travel—and was returned to a third safe country, exhausted the appeal system and wished to take his case to the European Court (and equally if someone was returned to this country), under our international obligations under the ECHR we would honour his right to petition and that person would not be removed while that took place.

In reply to the right reverend Prelate, for all the reasons that I have given—although I say, with a note of cynicism, that there seems to be a dogged determination not to believe what I say—I believe that we have spelt out sufficient safeguards and discussed in some detail how the system works under Clause 2. We do not envisage making an amendment to Clause 2.

I can give the noble Baroness, Lady Williams, an unequivocal yes. The same safeguards would apply to any safe third country added to the list. I have also made clear that the countries that we were considering possibly adding to the list were the United States, Canada and Switzerland. It would be difficult to argue that they were not safe third countries. I believe that I have answered all the outstanding questions asked of me.

The Lord Bishop of Ripon

Perhaps I could make two comments. First, in reply to the noble Baroness, Lady Rawlings, I thought that I understood her to say that the intention of the amendments was that those who came under these categories should be given a positive determination of their asylum status. I do not understand that to be their intention at all. It is simply that the safeguards should be thorough and in place. It is not that any decision is made about which way the final determination should go.

Let me echo what the noble Lord, Lord Dubs, said about abuse. It is quite clear that nobody condones abuse. We are all united in wanting to make sure that those who abuse the system are disposed of as quickly as possible. There is disagreement about who falls into that category. I understood the Minister to say that all those who neither received asylum status nor had an appeal allowed, nor were given exceptional leave to remain, were to be regarded as abusing the system. Many of us find that difficult to accept. We accept that there are some who abuse the system, but not the totality of those whose claims are refused.

I am disappointed that the Minister is not able to make any concession on Clause 2 in relation to the amendment. We shall reserve our position and consider what we shall do at Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 32 not moved.]

Lord Avebury moved Amendment No. 33: Page 2, line 42, leave out ("to which subsection (4) below applies,") and insert ("which is or forms part of a member State of the European Union, or is designated for the purposes of this paragraph in an order made by the Secretary of State,").

The noble Lord said: This is a drafting amendment to improve the readability of the Bill. It does not alter the meaning in any way. I hope that the noble Baroness will concede that.

The amendment would delete the phrase to which subsection (4) applies and transfer the wording from subsection (4) into the parent, Clause 2(1)(c), so that paragraph (c) will then read: except in the case of a person who is to be sent to a country or territory which is or forms part of a member state of the European Union or is designated for the purposes of this paragraph in an order made by the Secretary of State". That is very much clearer than the drafting in the original Bill where one has to look away from Clause 2(1)(c) to see what the meaning of the whole clause is. When one looks at subsection (4) it appears to stand on its own and not relate to anything at all. It is better if the relevant wording is put back where it belongs and one can then see the sense of the whole paragraph.

While I am on my feet, perhaps I can ask the noble Baroness to reply to the second leg of my question on the previous amendment; that is, whether the Government will reconsider their attitude to sending people to third countries with which they have no connection. In her reply the noble Baroness said that Judge Pearl found that the Government had acted lawfully in attempting to send Dr. al-Mas'ari to Dominica, a place with which he had no connection, a place with a different religion and culture and which was in every way wholly unsuitable for a person with Dr. al-Mas'ari's background.

The Minister said that the three countries which it was proposed to designate were the United states, Canada and Switzerland. If she can assure me that those are the only three countries that will ever be on the list, that will give me a certain amount of reassurance. If she can further reassure me that people will not be sent to the United States, Canada or Switzerland unless there is a good reason for them to go there—for example, because they have family connections or other links—that will be highly acceptable to the whole Committee.

What is objectionable is the notion that at the whim of the Secretary of State a person can be sent, not to a country through which he or she may have passed and where the Government take the view that the applicant ought to have applied for asylum, but to some third country with which the applicant has no conceivable connection.

When we considered the case of Dr. al-Mas'ari, the Government said that there was a precedent from the French sending 20 asylum seekers not to their country of origin but to Burkina Faso. They said that there had been no successful challenge to that operation. I pointed out recently that that was wrong and several of those asylum seekers had successfully contested their deportation to Burkina Faso in the French courts.

Generally speaking, over the whole of Europe, we ought to resist the principle that asylum seekers who come to any European country should be bundled out of the continent and placed in some third country which is completely alien and foreign to their way of life, culture and background. If we believe in treating people in a civilised manner—after all, they are asylum claimants, though they have not had their cases considered substantively—we must severely limit the scope of the countries to which we send them. If Canada, the United States and Switzerland are to be the only three designated countries, I am happy with that. But I should like a further assurance from the Minister that only people with some connection with those countries will be sent there. I beg to move.

9.15 p.m.

The Lord Advocate (Lord Mackay of Drumadoon)

I am dealing with this amendment and I regret to say that the answers I give on behalf of my noble friend Lady Blatch will not be acceptable to the noble Lord, Lord Avebury, but I give them nonetheless.

In relation to his first point, I can give no assurance that we will reconsider our position in relation to sending applicants back to safe countries with which they have no connection. In the case about which there has been some reference already this evening, Judge Pearl acknowledged that such an approach was compatible with the convention and therefore no assurance is appropriate with regard to that.

Equally, with regard to increasing the number of countries that the Secretary of State may have in mind to designate in an order, as set out in subsection (4) of Clause 2, again it would not be appropriate to give any categoric assurance at this stage that they will not be increased. Likewise, restricting the sending of applicants to countries—Canada, the United States and Switzerland—merely if there are family ties, is not an assurance that I am in a position to give. I am sure the noble Lord, Lord Avebury, will not be surprised to hear those answers, but those are the considered views of the Government in this matter.

In moving the amendment, the noble Lord said that he had no intention of trying to change the meaning of the clause. Unfortunately, the amendments have that very effect. In Clause 3(2) there is a reference to Clause 2(4). The effect of the Committee accepting the amendments would be to render Clause 3(2) completely ineffective and to render Clause 3 contrary to the intention of the Government in bringing forward the Bill.

I accept that the noble Lord does not intend in any sense to wreck the effect of Clause 2 but his attempt to make things clearer has a contrary effect. For that reason, I must invite the Committee not to accept the amendment.

Lord Avebury

The noble and learned Lord is not quite correct in what he has just told the Committee because it would be very easy to amend Clause 3(2) by substituting Clause 2(1)(c) for Clause 2(4). The clause would then refer to the correct passage in the earlier clause. If the Government were to accept the amendment on the basis that it was a simpler form of language than they have in the Bill, there would indeed have to be a consequential amendment to Clause 3. That would be very easy to put in at a later stage.

However, on the more substantial points, I am indeed, as the noble and learned Lord anticipated, extremely disappointed with his answer. I shall have to come back at Report stage with some further amendments to ensure that we place some limits on the power of the Secretary of State to designate so-called safe third countries. We know exactly how this power has already been used by the Secretary of State. We have to try to ensure that we clip his wings at Report stage to prevent him from doing it again. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 34: Page 3, line 12, after ("territory") insert ("has given an undertaking that it will consider the application and").

The noble Lord said: This is a crucial amendment as regards the principle of Clause 2. Although I accept that one or two of the arguments have already been used in relation to the earlier amendment dealing with victims of torture, I think it is right to state what are the key concerns about Clause 2 as exemplified by the amendment.

The first difficulty is the one I mentioned earlier. Before a third country removal the individual asylum case is not considered substantively. There is therefore a weakness in the procedures and it is possible that a person with a well founded fear of persecution may well be removed. The problem is that there is no assurance that the country to which that individual is removed will itself consider substantively the claim for asylum. Indeed, the individual may not be allowed to enter into the procedures at all in the third country to which he or she has been removed.

The UNHCR recognised this difficulty. Perhaps I may quote from a statement it put out in 1993 regarding the then Asylum and Immigration Appeals Bill. It said: Mere assumptions as to the safety of an asylum seeker in the third country cannot be sufficient ground for his removal from the country in which he is requesting asylum". In a paper commenting on this Bill the UNHCR made the position even clearer. It stated: UNHCR is of the opinion that there can be no automatic or reliable assumption that simply because an asylum seeker passed through another EU state or some other liberal democracy, en route to the United Kingdom, the country is 'safe' against refoulement, whether directly or indirectly … Because of the current lack of consistency in inter-state practice, and the attendant risk of refoulement, UNHCR is not supportive of unilateral action by states to return asylum seekers to countries through which they have passed, unless the prior agreement of that receiving state is first obtained".

We have two alternative propositions. The first is contained in the Bill in that the Secretary of State has certified that it is his opinion—in other words, he simply has to believe that everything may turn out all right for the asylum seeker. Against that, we have this amendment which says that the country to which the individual is to be removed—that is to say, the safe, third country—has given an undertaking that it will consider the application.

That is surely a crucial difference. All we are asking for is that when there is a removal to a safe, third country it is not the Secretary of State's opinion that that country will consider his application that is sufficient, but that we have some assurance from that country that the individual's application will be considered properly.

I understand that in the other place the Government put forward the objection that this process would take a little time. We are talking about individual human rights. If another government is not willing to give us an assurance that the asylum seeker returned to that country will be allowed to enter into the asylum procedures, then what assurance do we have that fairness will be done to that individual? If the government of the safe, third country is not prepared to confirm to us what the intentions are, how can we possibly risk sending the person back? The danger is that that government in turn may say that the asylum seeker spent a few minutes passing through another safe, third country. That government in turn will pass the individual on and in the end there is no assurance that he will not be sent back to the country from which he originally escaped. These provisions are not confined to European Union countries. So far as I can tell, they can apply to any country and that gives further scope for argument.

I wish to ask the Minister a further question: in the earlier debate on the amendment dealing with torture victims, the Minister said that there was a principle about applying for asylum. Possibly, I tacitly accepted that when I should have talked about the practice of applying for asylum. The noble Baroness mentioned international law. I wonder what is the basis for that proposition. It may be a practice that the Government welcome and one that has been adopted for some time by a number of countries on the basis of a lengthy stay in the country before moving on and then the principle of the safe, third country applies. In fact, I do not believe that there is such a principle. I believe that we have used that word as it applies to a practice which governments have adopted. I am really concerned about the way in which Clause 2 will operate. The safeguard in this amendment will give us all some assurance. I beg to move.

Baroness Williams of Crosby

It may be for the convenience of the Committee if I speak to this amendment and then I shall be able to consider saving time on the amendment that is in my name because I believe that the principle is very much the same.

I wish to make three points. The first is that the provisions in the 1993 Act for the suspension of an appeal are being removed under Clause 2 in this Bill. In plain English that means that a person can appeal against being sent to a third country prior to the legislation now before the Committee, and have the right, while the appeal is being considered, not to be sent out of the country. Under the provisions of this Bill, as I understand it, they will be sent out of the country and the only right will be to appeal from the country to which they are sent.

Therefore, the noble Lord, Lord Dubs, and I are asking for an assurance that that appeal will be allowed to proceed in the country to which the asylum seekers are sent before being sent there. If there is no such absolute commitment by the country to which they are sent, it is by definition not for them a safe country because they cannot pursue their appeal in that country, albeit that they may have a right, on the face of the Bill, to do so. It is a non-substantive right.

The second point is that in many cases it would be almost impossible to raise and to maintain an appeal from a third country, even a friendly third country, because of the difficulties of getting advice and counselling on the basis on which to make a successful appeal. It is therefore all the more important to ascertain that that third country will allow that person to proceed through the processes of appeal.

The third point is that it lies with the United Kingdom Government relatively easily to meet the anxieties expressed by the noble Lord, Lord Dubs, and myself. The reason that I say that it should be relatively easy to do that is because, as a result of Her Majesty's Government's own representations, issues concerning intergovernmental co-operation on home affairs and internal security come under the third pillar of the European Union. That third pillar is intergovernmental and is not part of the acquis communautaire. That intergovernmental agreement enables government members of the European Union to agree on how to deal with a number of issues. What could be easier than to persuade them to agree on a successful intergovernmental agreement under the third pillar with regard to entering into assurances about refugees being sent to other European Union countries?

With respect, it seems to me that the whole clause suffers from the fact that we do not have a safe and certain set of assurances from other EU member states about the handling of genuine asylum seekers. I believe that it would be possible to achieve that under the third pillar. Indeed, we have no other way of dealing with this because there is no European parliamentary accountability for the third pillar, only an intergovernmental one. Therefore, it lies very much with Her Majesty's Government to raise the issue within the third pillar and to try to get a satisfactory set of commitments from other EU states to say that they will allow appeals in their own countries. That seems to be the minimum required to make the Government's assurances about safe third countries into a reality and a certainty. I commend Amendments Nos. 34 and 35 to the Committee.

9.30 p.m.

Lord Hylton

I support the principles of Amendments Nos. 34 and 35. Those of your Lordships who can recall the time of the Cold War and the beginnings of détente will know that there were many cases of people being shuttlecocked from one country to another. They were usually stateless people whom no country would accept. I believe that one man spent many months of his life on a ferry going between Hong Kong and Macau. That is the kind of situation that we wish to avoid. We wish to avoid transfers from Britain to a supposedly safe country, on to other safe countries, and to unsafe countries.

The Minister has implied that it would be possible for those who are removed from Britain to a safe third country, probably in Europe, to conduct their appeal from that third country in our jurisdiction and in our courts. Something has already been said to point out the extreme difficulties of such a procedure. Therefore, if somebody is to be removed to a safe third country, that person needs to be able to get proper advice which is relevant to that country and to conduct the appeal entirely in that country. I support the amendment.

Earl Russell

In days gone by when they used to duck witches, it used to be a principle of the test that a guilty witch would float and an innocent witch would sink. The third country appeal is a bit like that. If the third country is in fact safe, you can prosecute the appeal—I shall not say "perfectly adequately", but you can prosecute it.

However, if the third country is not safe for the particular applicant, you cannot prosecute the appeal. All that can be said when the applicant disappears into God knows where—perhaps a prison in Zaïre—is, "We lost him". That is why the undertaking that the third country is prepared to receive the applicant is vital to the process of removal to a safe third country and to third country appeals. Without that, Clauses 2 and 3 are, in my opinion, completely unacceptable.

The noble Lord, Lord Dubs, hit the nail on the head when he pointed out that the key issue was access to the process. This is where the undertakings are needed.

I should like to quote some observations mainly by UNHCR on European Union countries. Regarding Greece, it was said: Whilst the legal situation and current practice in Greece may not provide wholly satisfactory guarantees that asylum seekers will be readmitted to Greece, UNHCR considers that effective protection could, however, be ensured in specific cases through explicit undertakings by the Greek authorities, expressed for example in bilateral communications between the governments concerned". That is exactly the procedure that we recommend in this amendment.

Take the case of Italy. In 1993 a Sri Lankan asylum seeker was returned from the United Kingdom to Italy. Italy imprisoned him. He was then sent to Thailand, which is not a signatory to the UN convention. The UNHCR's recommendation was the following: Pending clarification of this incident, I have requested the Home Office not to return asylum seekers to Italy without the necessary safety conditions having been verified with the Italian authorities". That is the question to which this amendment asks for an answer.

Take the case of France. For example, I refer to the principle that arose in the case of Berdjane. The appellant was returned to France from the United Kingdom on third country grounds. He arrived in France and was asked for his papers. Of course, all of his papers were for admission to the UK. He did not have papers for admission to France because he had not intended to be admitted to that country. He was told that he was an illegal immigrant and could be detained for 24 hours, after which he had to leave France. The Home Office adjudicator who considered that case said: It appears to be the practice that claims are not accepted from illegal entrants who are returned to France. This raises the risk and possibility of refoulement". Even in countries within the European Union there is a severe risk of not being admitted to the process. I do not believe that we can return applicants to third countries until we are sure that they are admitted to the process. If we regard that as an acceptable procedure, it will be done to us in return.

Last Tuesday I asked a question to which I would welcome an answer from the noble Baroness. I did not get it then. Perhaps I raised it at the wrong moment and she was not prepared for it. I refer to a hypothetical asylum seeker from Chad who wishes to apply for asylum in France because he speaks the language. He escapes overland through Nigeria, catches a plane to London—because he is much more likely to catch a plane if it is going to London than Paris—makes his way to France and is referred back by France to the UK under the third country rule. In those circumstances, what are we to do with that applicant? Do we admit him to our procedures—in which case well and good? It may not be quite what is wanted but it is better than nothing. Do we send him back to France—in which case we play battledore and shuttlecock? Do we send him back to Nigeria? If so, will Nigeria send him back to Chad? If that is the case, both we and France are in breach of our international obligations. I remind the noble Baroness that, since a great many planes touch down here on the way to continental European destinations, if there is a perpetual batting to and fro of third country applicants the flow of refugees to this country is likely to increase rather than diminish, which I understand is not the intention of the Home Office.

Lord Mackay of Drumadoon

In moving the amendment, the noble Lord, Lord Dubs, recognised, as he recognised earlier this afternoon and this evening, that it is acceptable on occasions to pass applicants on to safe third countries. It is clear from what the noble Earl, Lord Russell, said, that his objection to what the Government propose is much more fundamental. It is right therefore that the Committee should appreciate the importance placed on the provisions set out in Clauses 2 and 3.

The Government believe that the effectiveness of our immigration control is weakened significantly if economic migrants can travel from country to country until they pick one where they want to work, and feel that it would be of economic benefit for them to stay there. They seek to achieve that objective by claiming asylum.

A procedure which allows quick removal sends out a clear signal, which the Government believe requires to be sent out, that we are determined in this country to maintain the integrity of our immigration controls. If we are unable quickly to remove applicants to safe third countries, it becomes, for reasons which will be well understood by the Committee, more difficult, and, in certain instances, impossible to do so.

If there is a substantial delay in the matter being raised, it is more likely that the third country will decline to take such people, and, more important, if the appeal procedure is allowed to run before the removal takes place, it becomes much easier for the applicant to seek to create some doubt as to whether a safe country would deal with him in the way that the Bill proposes.

Accordingly, it is important to bear in mind what is set out in Clause 2. Subsection (1) provides that the Secretary of State has to certify that in his opinion certain conditions are fulfilled—those conditions being set out in subsection (3). I need not repeat them. It is not sufficient for the Secretary of State just to pluck an opinion out of the top of his head. He has to be satisfied that it is reasonable for him to hold that opinion, and any opinion that is then incorporated in a certificate is of course susceptible to judicial review by a process which is well known to the Committee.

It is important to bear in mind that this is a structured approach which is designed to back up the effectiveness of our controls which are deemed to be appropriate if we are to send the right messages.

Before I turn to deal with the specifics of the amendments, it may be of assistance to the Committee if I set out the Government's general position on agreements and undertakings in third-country cases. The Government are not opposed to bilateral or multilateral agreements where they can be negotiated. A later amendment is concerned with the Dublin Convention, to which my noble friend Lady Blatch has referred, which provides a mechanism for determining which member state is responsible for determining asylum applications lodged in the EU. This country ratified that convention some five years ago. We look forward to it coming into force. In the meantime, removals to France are covered on a case-by-case basis by a bilateral agreement which we have negotiated separately. We have a similar, although not identical, agreement with the Spanish authorities.

We do not accept that third-country removals should be held up in the absence of such agreement, and the Immigration Rules which apply in this country make that clear. Paragraph 345 of those rules provides that, so long as the applicant had the opportunity to claim asylum in the third country, or there is other clear evidence that he is returnable there, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of the asylum applicant.

If we were obliged in every case to obtain undertakings from third countries on a case-by-case basis, we would for all practical purposes be unable to operate an effective third country policy. We believe that it would encourage third countries to refuse to take applicants back and applicants would know that they could travel from country to country within Europe before finally claiming asylum in this country, safe in the knowledge that Parliament would have prevented their being returned to the safe country from which they came. An applicant who had previously been refused asylum by another European country would come to this country and lodge a further claim here safe in the knowledge that we would be forced to consider his claim substantively rather than return him to the country which had previously refused asylum.

The precise terms of Amendment No. 34 would prevent removal of an asylum seeker to a safe third country unless that country had given an exclusive undertaking that it would consider his asylum claim. We see no justification for introducing such a principle. The certificate which the Secretary of State requires to pronounce is to the effect that in his opinion, which is already subject to judicial review, the government of that country or territory would not send the asylum seeker to another country or territory other than in accordance with the convention. The Government consider that that is an adequate reassurance.

If the third country refuses to consider the claim substantively it does not follow that there has been a breach of the convention or that the asylum seeker has been placed at risk of persecution. For those reasons, the amendment is not acceptable.

I turn to a number of points which Members of the Committee have raised. The noble Lord, Lord Dubs, asked whether third country removal is a principle of international law. It may well be that there has been some confusion in the Committee about whether it is a principle or a practice. The Government proceed on the basis that the practice is consistent with the terms of the 1951 convention, which is widely recognised by the fact that the practice is followed in a large number of countries.

The noble Lord, Lord Hylton, asked about the ability to conduct appeals from safe third countries. The Government are satisfied that that is a reasonable assumption to make. As may arise in detail on a later amendment, it is perfectly possible for legal advice to be obtained from this country in connection with such appeals where appropriate legal aid is available to people who are not resident in this country. The countries concerned are, in accordance with Clause 2(4), member states of the European Union. The intention is to include three other countries; Canada, the United States and Switzerland. I find it difficult to believe that in these days of communication by fax, telephone and post it is impossible to make appropriate arrangements for such appeals to be properly put forward.

I turn to the somewhat hypothetical case raised by the noble Earl, Lord Russell, involving Chad, Nigeria and France. If the hypothetical situation be as described by the noble Earl and the route followed was from Nigeria to the United Kingdom I understand that the claim would be considered substantively and would not be dealt with in any other way.

Various comments were made in passing about procedures in France, Greece and Italy. Clearly, Her Majesty's Government keep in touch with their European partners about the way in which they handle their asylum and immigration procedures.

If there were any serious concern about what was happening in a particular country, I venture to suggest that it would be very difficult for the Secretary of State to grant a certificate in terms of subsection (3)(c) of Clause 2; namely, that it was his opinion that the Government would act in accordance with the convention. If there were such serious weaknesses, it is unlikely that the convention would be followed. For those reasons, I urge the Committee to reject Amendment No. 34.

Baroness Williams of Crosby

I ask the noble and learned Lord to deal with one point which I raised to which he has not replied. He indicated that the Government could not accept amendments of the kind we are putting forward. He referred to "safe countries". How does he define a safe country if he has no assurance that that country will allow the use of an appeals procedure for asylum seekers?

Moreover, he did not reply to the point made by my noble friend about what we would do when treated as a third country by another country because the people concerned had gone through the UK on their way to a European Union country. It seems to me that that matter can be dealt with adequately only under the third pillar, to which the noble and learned Lord did not refer. Will he not consider those points?

Lord Mackay of Drumadoon

I apologise for not dealing in detail with every point that was raised.

As regards the third pillar, there are informal discussions between member states about their prospective procedures. The Government are not prepared to go to the extent of reaching an agreement beyond that which is set out in Clause 2(3). Otherwise, by a different route, one is effectively getting into a situation which this amendment and similar later amendments are designed to achieve; namely, to require on a case-by-case basis or on some omnibus basis an absolute guarantee not that the case should be dealt with in accordance with the convention but beyond that, that it should be dealt with substantively in that particular country.

I shall reflect further on the other points raised by the noble Baroness. I shall either deal with them on later amendments or write to the noble Baroness about them.

Lord Dubs

I thank the Minister for dealing with the many questions that have been put to him in the debate. However, he has done nothing to reassure me that the system will work fairly and properly.

A great deal seems to depend on the opinion of the Secretary of State. I am not suggesting that the Secretary of State would not act on his own best judgment, but the fact is that there would be no proper assurance that the government to which the individual was returned under the Clause 2 provisions would not in turn say that there was another country to which the person should be moved. By that time the safeguards about which we have heard would no longer be applicable. Indeed, if the individual was moved quickly from the safe third country to which we had sent him, the provisions for appeal under Clause 3 would hardly be operative because the individual would not be in a position to exercise those rights. But we may come onto that in a few moments.

As his argument against the amendment, the Minister said that it would be too time-consuming to deal with the matter on a case-by-case basis because every time we wanted to send somebody back we should have to obtain that country's agreement that the individual's claim would be considered there. A subsequent amendment deals with the Dublin Convention, but in a sense that convention already provides a possible model. There is no need to do it on a case-by-case basis. We could enter into agreements with other countries to the effect that they would allow the claims of whoever we sent to them to be properly considered, provided that we could demonstrate that such individuals had spent some time in the other country. Then, in turn, we would do likewise if the journey had been in the reverse order.

It seems to me that we have a model in the Dublin Convention; that we have a precedent that this could be done by agreement; and that it need not be done on a case-by-case basis. Therefore, I do not see why the Government are so reluctant to move in that direction. Indeed, we will put the argument more clearly in the context of the Dublin Convention in a short while when we deal with that amendment. I am rather disappointed that the Government do not accept that there is a problem which has been stated by several Members of the Committee.

The problem is that once a person is removed from this country there is no assurance that any country will allow him to claim asylum there. The individual will, in turn, be moved from country to country until he may well be left in the original country from which he escaped and where he may face danger. That is the gap in the system. If we could find some way of closing it, we could then accept the thrust of the policy. However, in the absence of any assurances, I am somewhat dismayed. Perhaps the Minister would care to comment further before I decide what to do about the amendment.

Lord Mackay of Drumadoon

It may help if I give Members of the Committee certain examples of what might happen in the event that there is the shuttling backwards and forwards about which so much concern has been expressed. It is important to bear in mind that we are dealing here with member states of the European Union. Whatever our differences may be on certain issues that fall to be debated in European institutions, we are still talking to each other. We would like to think that we are still behaving humanely when matters of such sensitivity have to be settled.

Let us suppose that we removed an applicant to France and that that country immediately granted the asylum seeker leave to remain but was not prepared to consider his asylum application. The applicant might, for example, secure leave on the basis of a marriage to a French national or on some other sympathetic basis. In such circumstances, the applicant would be perfectly safe in France. In that case, I venture to suggest that there is no reason why we should have required an undertaking of the nature sought by the amendment that the application would be dealt with by implication on a substantive basis.

Another alternative is that we remove an asylum seeker to France and the latter has evidence that the applicant had originally travelled to France via Germany. Again, I venture to suggest that Members of the Committee would not object to the French authorities acting in accordance with the terms of the convention—and, no doubt, their own domestic legislation—and coming to the conclusion that it was a matter for Germany to address the substantive application in terms of the convention, thereby passing the asylum seeker back to that country. That is a second clear example of a case which would not pass the test set out in the amendment.

A third example is that France, having had the applicant sent back to them, might then return the applicant to this country. As I have already indicated, one would suspect—and, indeed, one would certainly hope—that such cases would not occur very often. However, if they do, it is important to bear in mind the fact that there is no obligation on the Secretary of State to issue such a certificate, nor is there any obligation on this country to keep the game of shuttlecock going backwards and forwards. Indeed, if recent experience is anything to go by, one would hope that noble Lords would draw that to the Government's attention and seek to ensure that such cases were dealt with on a reasonably sensible and perfectly humane basis.

The trouble is that the amendment seeks to focus the opposition which many Members of the Committee bring to the Bill on the suggestion that because, some months if not years after other countries in Europe did so, this country is putting forward legislation to tighten our immigration controls and prevent us having to deal with a disproportionate number of cases which are ultimately rejected on appeal, that is to the detriment of the bona fide cases which we would prefer to deal with sooner. Far from seeking to achieve the Bill's objectives, putting the additional proposals into the legislation seeks to frustrate them. That is why the amendment is unacceptable.

Lord Dubs

I heard with interest what the Minister said. I am emphatically not trying to frustrate the purpose of the Bill with the amendment. I am simply trying to bring in minimal safeguards for the people who are caught by the provisions. I wish to consider what the Minister said and reserve the right to come back to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 35 not moved.]

10 p.m.

Lord Dubs moved Amendment No. 36: Page 3, line 14, at end insert ("and () his removal from, or the requirement for him to leave, the United Kingdom would be in accordance with the terms of the Dublin Convention.").

The noble Lord said: The amendment stands in the names of myself, my noble friend Lord McIntosh and the noble Earl, Lord Russell. It seeks to use the Dublin Convention to provide the framework for third country removals. My intention is to secure that, if the amendment were accepted, then third country removals would be on the basis of the Dublin Convention; that they would therefore be confined to European Union countries; and, most important, that the Dublin Convention would determine the state responsible for examining asylum applications. That is the key difference between using the Dublin Convention and the Bill as it stands.

I repeat, because it is the most important point in the amendment, that the Dublin Convention specifies which state is responsible for determining or examining an application for asylum lodged in one of the member states of the European Community. If the Government adhere to the Dublin Convention, as they say they do, and if before too long the remaining countries sign it, then we have a sensible model for dealing with third country removals within the European Union. It is a model which meets the concerns which several Members of the Committee expressed in earlier debates on the clause. Therefore the amendment makes sense and provides a good basis. We could move forward on that understanding.

Of course, there would still be the difficulty with countries not party to the Dublin Convention or countries outside the European Union. But at least if they were within the European Union it would mean progress, given that most of the third country removals involve people who have come to this country from France or Belgium. I beg to move.

Lord Avebury

I welcome the amendment because it places limits on the countries to which the Secretary of State could send the applicant. It removes the power which otherwise exists in Clause 2 for the Secretary of State to designate third countries indefinitely on a whim. I am worried by the statement from the Minister earlier that we shall begin with countries that we may think are acceptable like the US, Canada and Switzerland. However, on the face of it the Bill contains the power to extend the list indefinitely and to send applicants to bizarre third countries like Dominica. I wish to see that power removed from the Bill. It is an excellent idea that we should limit the Secretary of State to countries which will enter into the Dublin Convention. They are the ones from which the vast majority of people concerned have arrived, as the noble Lord, Lord Dubs, said. I believe that the tiny minority we might wish to send to third countries other than those which belong to the Dublin Convention could be safely left outside the procedures of the Bill.

I hope that the amendment will be acceptable. A multilateral agreement which did not require individual acceptance by every country, as proposed in the previous amendment, is a superior way to tackle the issue. The amendment would be a vast improvement to the Bill. I hope that the Government will accept it.

Lord Hylton

If I were the Minister, I would cling to Amendment No. 36 as to a lifebelt thrown into a stormy sea. Surely the amendment solves the problem so far as concerns the European Union.

Amendment No. 35 was spoken to by the noble Baroness, Lady Williams, but not moved and therefore barely debated. It gives a model for third countries where a written agreement has been negotiated. The Minister told us that a bilateral agreement was already in existence with Spain. Spain is a member of the EU. Surely that agreement could be adapted to other countries which are not members.

Viscount Brentford

Perhaps I may ask this out of ignorance. The noble Lord, Lord Avebury, spoke of leaving aside other countries. If the amendment were passed, what would be the position of third countries such as the United States and Canada?

Baroness Blatch

The noble Lord, Lord Hylton, described the amendment as a lifebelt thrown in a stormy sea. After I have spoken to the amendment, I hope he will understand that I should be in the stormy sea for a very long time—or at least until the final country had ratified the convention.

Amendment No. 36 would require the Secretary of State to certify in third country cases that an applicant's removal from, or requirement to leave, the United Kingdom would be in accordance with the terms of the Dublin Convention. The Dublin Convention, as the Committee is aware, is concerned with determining which European Union state should be responsible for examining asylum applications. The United Kingdom Parliament ratified the convention in 1991. The Government support the early ratification of the convention by the two original signatories, the Netherlands and Ireland, which have not yet ratified it, and look forward to it coming into force. We believe that there can be advantages in multilateral agreements covering third country returns where such agreements can be negotiated. The Dublin Convention should lead to greater certainty in the handling of cases where applicants have transited other member states before applying for asylum in the United Kingdom.

To the extent that Amendment No. 36 is concerned with ensuring that the United Kingdom observes its obligations under the Dublin Convention, it is unnecessary. The United Kingdom has ratified the Dublin Convention. I can assure the Committee that we take our international obligations very seriously. We will, of course, fulfil our obligations under the Dublin Convention once it comes into force.

It is important to state that it is a European-wide convention. It requires multilateral and not bilateral arrangements. It requires all the countries to sign up to common disputes procedures. Until it is ratified by all countries it is very difficult to bring the measure into being.

However, the amendment would prevent us from making third country removals under the provisions of the Bill until the Dublin Convention comes into force. The convention will not come into force until two months after it has been ratified by all the original signatories. We cannot say when that will take place. The terms of the convention require us to follow certain procedures, jointly agreed by all the countries following ratification by all the countries, in conjunction with the third country which we believe responsible for considering a specific case. We could not expect countries such as France to follow the Dublin Convention's procedural requirements before that convention is in force.

In effect, Amendment No. 36 would put on hold third country removals indefinitely until the Dublin Convention came into effect. Ratification has already been delayed for six years and there is absolutely no telling how much longer it will take. For that reason, the amendment is completely unacceptable to the Government.

Lord Dubs

Before the Minister sits down, may I ask her a question? I heard what she had to say. What will be the position, when the Dublin Convention is signed and ratified and comes into force, for individuals whom we send from Britain to one of the EU countries? Will the provisions be under the Dublin Convention or under Clause 2? They are different, for the reasons I stated earlier.

Baroness Blatch

We do not believe that they are incompatible. Under the provisions of the Dublin Convention the United Kingdom would consult with the authorities of the member state that was responsible for considering a particular asylum claim. The United Kingdom would provide the third country with evidence which suggested that that country was responsible for considering the asylum claim: for example, travel tickets indicating that the applicant had indeed been in that country before arriving in the United Kingdom. The third country would indicate whether or not it agreed with the United Kingdom's claim and assessment that it was responsible for considering the claim. If the third country then agreed that it was the state responsible for considering the claim, it would be obliged under the Dublin Convention to take the applicant back. The process will not always be as smooth-running as that. There may be occasions when that is disputed. Then, under the Dublin Convention, common arrangements would be agreed for the resolution of disputes.

Baroness Elles

Perhaps I may just confirm, and ask my noble friend the Minister to confirm also, that under the third pillar work is going on to achieve minimum standards for the reception of asylum seekers. Although the Dublin Convention is mentioned—as my noble friend more than correctly said, it is not yet fully ratified and has not come into force—the effect of this joint action on the minimum conditions for the reception of asylum seekers might fill the gap in the meantime. I accept, as my noble friend says, that this amendment is totally irrelevant to international legal obligation at the moment.

Baroness Blatch

My noble friend is absolutely right. Certainly discussions are going on under the third pillar. We shall continue under that pillar to have the greatest possible degree of co-operation between countries. It could not quite match up to the full terms of the Dublin Convention. When it is fully ratified, the signatories to it will agree the procedures commonly between them.

I must apologise for not returning to the question raised by my noble friend Lord Brentford. I hope that by now he has gathered that we are talking about European Union member states that are subject to the Dublin Convention.

Baroness Williams of Crosby

Before the noble Baroness concludes her remarks, following the point raised by the noble Baroness, Lady Elles, can she give the Committee any idea at all as to how long it is likely to be before the Dublin Convention is ratified? If she cannot do that, will she at least give us an assurance that Her Majesty's Government are doing everything they can within the third pillar to persuade other EU member states to sign? She mentioned in particular the Netherlands and Ireland.

Baroness Blatch

That is an important point. I give the noble Baroness an absolute assurance that we are anxious that the two final countries ratify the agreement. I hope the noble Baroness will accept that I am giving an honest reply to her question. The difficulty in regard to Ireland coincided with the change of government, and therefore it is our understanding that the convention may be signed quite quickly by Ireland.

In regard to the Netherlands the situation is more difficult. It is looking for more centrality of the European Court of Justice, and that is not agreed by the other member states. The issue between the Netherlands and other states is more fundamental and may take longer to resolve.

Lord Dubs

I thank the Minister for her detailed answers to the various points and in particular her detailed explanation of the Dublin Convention. It seemed to meet many of the concerns expressed in this and other amendments. All we can do is hope that the Dublin Convention will come into force quickly. Then we should have assurances that we failed to achieve in relation to earlier amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 37: Page 3, line 14, at end insert ("and () that the person who has made a claim for asylum does not have close ties or connections with the United Kingdom.").

The noble Lord said: I shall be brief. The purpose of the amendment is to ensure that an asylum seeker is not returned under the safe third country rule if he or she has close ties or connections with the United Kingdom. My experience of dealing with individual refugees and refugee matters has been that it is sometimes very painful for individual asylum seekers to find that one member of the family has found safety in one country and they themselves are in another country, and that it is extremely difficult for the two to be able to live together because neither of the states will allow it. Or, rather, I should say that it is my experience that our Government have been more reluctant to allow such movements than perhaps have some other European governments.

On this specific amendment, it is simply a matter of saying that it is surely wrong in principle to remove a person who has well-established, close ties in this country to another country where he might have no ties or no connections. For example, there might be relatives here; the individual might have had part of his education in this country; he might speak English; and he might be qualified for particular occupations or jobs in this country, and so on—all of which would make it sensible to allow such an individual to stay here.

The number of times that it may happen would not be very many. It would not breach the principles of the government legislation but it would represent a little humanity and common sense in dealing with individuals who are close to this country and who would therefore settle well if given the chance to do so. I beg to move.

10.15 p.m.

Earl Russell

Last January I listened to the Secretary of State in another place moving the regulations to deprive asylum seekers of benefit. He was asked how they would live without it. He replied that they could rely on family members and members of their own community in this country. Whether or not that is a satisfactory or sufficient answer, it is clearly convenient to the Secretary of State. It is a convenience of which he will deprive himself and of which other national governments will deprive themselves unless the principle of allowing family members and close relatives to come together is accepted. It is the kind of arrangement which it would be extremely helpful to have done by international agreement.

The point made by the noble Lord, Lord Dubs, about families separated by finding refuge in different countries is a real one. The noble Baroness may just possibly recall some correspondence that we had a few months ago concerning an Iraqi couple. The woman had found refuge in this country and the man had found refuge in Denmark. The couple had subsequently divorced but he wished to maintain access to his children. In fact, it was extremely difficult to persuade the Home Office that he was not trying to do it in order to become an immigrant to this country. For example, it was necessary to point out that he enjoyed a far higher level of benefits in Denmark than he did here.

That kind of case gives rise to an immense amount of work. I am sure the noble Baroness is aware that the Home Office machinery for dealing with immigration and asylum cases is heavily loaded. It would seem to me to make sense to do something which would take some of the weight off it. I do not see why people should not be allowed to settle in a country where they have relatives, perhaps know the language, can put down roots, get work and flourish rather than in a country where they would be fish out of water.

At Second Reading I put to the noble Baroness a case to which I have not yet had an answer. I should like to have one. Let her imagine the unimaginable—the unthinkable—situation, of her needing to be a refugee from this country. Imagine that she wishes to go to Australia, where she perhaps has a son or daughter living, but because the plane touched down at Dubai, she is required to live the rest of her life in Dubai. That would be a rather silly arrangement. It would be much better to let her go to where she would be at home.

Therefore, the principle of allowing family members to be united is not only humane; it is also, in the end, for the administrative convenience of the governments concerned. I very much hope that it will be adopted.

Lord Hylton

This is another important amendment and it may be helpful to the Committee if I quote a substantive part of a written parliamentary reply signed by the Minister and dated 27th March. It said: The Secretary of State will normally decide to consider a case substantively [that is, on its merits] if the applicant's spouse or unmarried minor child is in the United Kingdom, or, if the applicant is an unmarried minor child, the applicant's parent is in the United Kingdom. In addition, discretion is exercised according to the merits of individual cases where the applicant is a parent whose married minor is in the United Kingdom (or vice versa); the applicant is an elderly or otherwise dependent parent; or the family link is not one which would normally be considered but there is clear evidence that the applicant is wholly or mainly dependent on the relative in the United Kingdom and that there is an absence of similar support elsewhere".—[Official Report, 27/3/96; col. WA139.] I am extremely grateful for that reply. It indicates that the Government attached great importance to the principle of family reunion. I hope that principle will always be borne in mind and will be applied to the maximum possible extent.

Baroness Blatch

The noble Lord, Lord Hylton, has almost made my case for me, but I shall respond fully to the amendment.

The Government believe that it is appropriate, in considering potential third countries, to take into account any evidence of substantial links with the United Kingdom which would make it reasonable for the applicant's claim for asylum to be considered here on an exceptional basis. But for reasons which I will set out, we do not consider that provision in primary legislation covering ties is either appropriate or necessary.

As has just been said, we already operate a concession under which asylum seekers are not normally removed to a safe third country, but are instead admitted into our own asylum procedures if they have close ties here. The concession and the details of what are regarded as close ties have been published in Butterworths Encyclopedia of Immigration Law and we have no plans to alter it. It may assist the Committee if I set out details of that concession.

Cases are normally considered substantively in the United Kingdom, despite the applicant's arrival via a safe third country, if the applicant's spouse is in the United Kingdom; if the applicant is an unmarried minor and is a parent in the United Kingdom; or the applicant has an unmarried minor child in the United Kingdom. I am glad to reaffirm that. The term "in the United Kingdom" extends beyond people who are present here with leave to enter or to remain. It also covers a person who applied for asylum at the port of entry and who has been granted temporary admission to the United Kingdom while their asylum application is being considered.

Our policy that we do not normally remove an applicant on third country grounds if he or she has a parent, spouse, or dependent minor child present in the United Kingdom, either with valid leave or as an asylum seeker, is fully consistent with the principle of family unity and we exercise our discretion in the applicant's favour in the great majority of cases covered by the concession.

There is a further category of cases where the removal to a third country may be waived according to the merits of the individual case. Cases which fall into that category are as follows: where the applicant is a married minor with a parent in the United Kingdom; the applicant has a married minor child in the United Kingdom; the applicant is an elderly or otherwise dependent parent; or, finally, the family link is not one which would normally be considered but there is clear evidence that the applicant is wholly or mainly dependent on a relative in the United Kingdom and there is an absence of any similar support elsewhere.

Factors which may influence the exercise of discretion in all those cases include language skills—if the applicant is fluent in English but not in the language of a third country—and cultural links with the United Kingdom and the third country. Those are sensible and reasonable criteria to apply on a case-by-case basis. It would be extremely undesirable to transcribe that concession into a binding statutory requirement.

It is not hard to imagine circumstances in which it would be entirely appropriate to remove an applicant to a safe third country even though the applicant may have close ties or connections with the United Kingdom. The Secretary of State must therefore retain the discretion to consider the individual circumstances of each case to determine whether substantive consideration of a claim in the United Kingdom is justified.

Let me give an example. Let us suppose that a non-European Union national committed a criminal offence in another European Union country and then attempted to gain entry to the United Kingdom on asylum grounds to avoid prosecution. Even if the applicant could demonstrate close ties with the United Kingdom, it might well be appropriate to return him to the European Union country rather than consider the asylum claim here. Amendment No. 37 provides no scope for discretion in such matters and would prevent removal in the case I have given as an example.

The noble Earl, Lord Russell, invited me to think the unthinkable. Even if I were to think the unthinkable, I would think first of all that I was fleeing for my life—because that is what asylum is about—or from the risk of persecution. I would be jolly thankful to find any safe haven at all. But if that country responded to my request in the way that we respond to requests under the arrangements we have set out, I believe I would be in very good hands.

Lord Dubs

I thank the Minister for her clear explanation of the way in which close family ties and other connections are respected in practice by the Home Office. In the light of that clear and helpful statement, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 38: Page 3, line 14, at end insert (" and ("() that the person has been afforded the opportunity of speaking by telephone with an authorised representative").

The noble Lord said: This is a very simple amendment and I shall be extremely brief. The purpose of the amendment is to afford an individual who is about to be removed on third country grounds the opportunity of speaking by telephone to an authorised representative, be that a solicitor or other person appropriate for dealing with asylum appeals. If an individual is being removed, he will have the opportunity to establish whether he wishes to pursue an appeal and can set in motion the process before he has left the country.

I appreciate that there will still be difficulties as to whether there will be any support for such an application by his representative here after he has left the country. Perhaps the Minister can comment on that. But, essentially, I am seeking to provide a simple and easy assurance that a telephone conversation at the very least is possible before the individual is removed from the country. I beg to move.

Lord Mackay of Drumadoon

The effect of this amendment when taken with Amendment No. 44 would be to add an additional certification requirement in third country cases. The Secretary of State would be required to certify that the applicant had been afforded the opportunity to speak by telephone to an authorised legal representative. But the certificate, as set out in Clause 2, is currently designed to cover the safety of the country to which the applicant is to be removed. Access to legal advice and representation is not a matter which ought to be covered by the certificate.

If the United Kingdom is not responsible for considering an applicant's asylum claim, then, for the reasons I indicated earlier, our objective must be to remove him as quickly, albeit as sensibly, as possible. In cases where removal is to a European Union country, we do not accept—again for the reasons I have made clear—that the appeal process should be able to begin while the applicant is still in the United Kingdom because there is no reason to doubt that it can be initiated upon arrival in a European Union country. It is for that reason that Clause 3 of the Bill, to which we shall pass shortly, provides that an applicant cannot bring or pursue an appeal while he is in the United Kingdom.

However, I am happy to give an assurance that asylum seekers, in respect of whom a certificate has been granted in terms of Clause 2, will be given access to a telephone before removal and will be provided with the telephone numbers of the Immigration Advisory Service and the Refugee Legal Centre, both of which are funded in terms of Section 23 of the 1971 Act to provide advice and assistance in connection with appeals. That is current Immigration Service practice and I am happy to give an assurance that that will continue.

On that basis I hope that it will not be necessary to press the amendment. As I explained earlier, and I need not repeat it considering the time of the evening, there is no practical reason why legal aid cannot be made available to applicants who are abroad nor is there any good practical reason why they cannot receive such legal advice and assistance as is necessary to bring forward an appeal. Clearly, it may be more difficult to do so than if one is resident in London and has the opportunity of going backwards and forwards to a solicitor's office or to a legal centre as often as one wishes. But the Government are satisfied that it can be done from these countries and for these reasons I invite the Committee to reject both these amendments.

10.30 p.m.

Lord Hylton

If the Government are prepared to allow applicants to make telephone calls to these two quangos, which do valuable and much appreciated work on behalf of applicants, why will they not extend that principle to a solicitor or a barrister if the applicant has one already?

Lord Mackay of Drumadoon

I am not excluding the possibility that when access is given to the telephone it can be used to telephone the solicitor or counsel or whoever the applicant is already in touch with. What I am objecting to and the reason why these amendments are opposed, is the proposal that that should become part of the certification procedure. I venture to suggest that that is a different matter from giving access to the telephone. Once one has that, one can ring whoever one wishes, but, for people who have no legal advice already, the telephone numbers of the two quangos which have been referred to will be provided. I hope that that will be accepted as a reasonable means of making contact between the applicant who has been made subject to a condition and whose removal is imminent.

Lord Dubs

Before the Minister sits down, may I put one further question to him? Assuming, as he says, that the Government will facilitate such a telephone conversation with a lawyer or a person from IAS or the refugee legal centre, if the case is complicated and the adviser believes that the matter cannot be fully resolved on the telephone, will the Government make it possible for a meeting to take place between the adviser and the asylum seeker before the latter is removed?

Lord Mackay of Drumadoon

The point raised by the noble Lord is a valid one. I shall take instructions on it. However, I am in a position to say—and this will come as no surprise to the Committee—that if it is clear that an application for judicial review is imminent, then to avoid any embarrassment and inhumanity, some delay will be allowed to allow the application for leave for judicial review to be made. If that is granted, then in practical terms that has the effect of staying removal until the case has been heard by the High Court.

As regards guaranteeing that there will be sufficient delay to allow a lawyer of an applicant's choice to attend on the applicant, and although I can understand why the point has been made, at present I am not in a position to give such an assurance, but I shall take instructions on it.

Lord Dubs

The Minister has certainly met the issue part of the way by saying that he will take instructions on it and will consider it further. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved]

Lord Clinton-Davis moved Amendment No. 40: Page 3, line 16, leave out from ("State") to end of line 17.

The noble Lord said: This amendment stands in the names of my noble friends Lord McIntosh and Lord Dubs and in that of the noble Earl, Lord Russell. I should declare at once that I am a president and former chairman of the Refugee Council.

We are seeking to ensure that only European member state countries will be considered safe third countries for the purposes of those not entitled to an in-country right of appeal. The mischief, as we see it, in the Bill as it stands in this regard is that it would be open to the Secretary of State to add other countries—whatever countries he saw fit—to the list, allowing removal without an in-country right of appeal. Unsafe countries could thus be added, but Parliament would have absolutely no right to comment before the additions to the list were made, resulting in removals without a prior right of appeal. That is a serious situation. In fact, the Government took a position previously and succumbed to pressure which moved them away from that position in another place. The United Nations High Commissioner for Refugees also criticised the Government. Although they have retreated from their original position, there is absolutely no assurance that they would not revert to that stance either in part or in whole once the Bill is enacted.

I want to ask the Minister why there is a need for a list of safe countries at all. The fact is that 95 per cent. of all current cases involve return to EU member states, so we are left with the remaining 5 per cent. Does that really justify a special list?

The Refugee Legal Centre and UNHCR undertook a certain amount of research into that situation and an analysis of the 736 safe third countries determined between September 1994 and December 1995. The few non-EU member states to which the Home Office proposed removal numbered only 10, involving a very small number of cases. In two-thirds of cases, the certificate that the removal to the country was safe was overturned by a special adjudicator. I repeat: why do we need a special list?

The Lord Advocate referred earlier to the fact that he doubted whether Switzerland could possibly be regarded as other than a safe country, but in fact we have cases where the special adjudicators overturned two-thirds of the decisions involving return to Switzerland. I repeat: is there any purpose in having a safe list? I beg to move.

Earl Russell

I rise briefly to clarify the procedure that is involved in the designation. The provisions state "by order". As I understand it, they do not state "by statutory instrument", so it is my understanding that there is no parliamentary control over the operation of this.

This is an argument about delegated powers, which the noble Baroness and I have had so many times that we could do it in our sleep. I assure her that I am not asking her to do that. The noble Baroness will, of course, invoke flexibility. I point out that her flexibility is everybody else's inflexibility. However, I am deeply grateful for her concession on this in the course of moving Amendment No. 1 a week ago. Would it be in the spirit of that concession to make some concession to an expression of parliamentary opinion that the designation of a particular country was not, in fact, desirable? Would the Government pay attention to that if it happened? If they would, it would relieve me greatly.

Baroness Blatch

I find this debate extraordinary from noble Lords who have taken such a close interest in the Bill. First, the noble Lord, Lord Clinton-Davis, is actually wrong. I know that he has not been present throughout all our discussions on the Bill. The Secretary of State cannot, simply on a whim, add a country to the list. There is no way in which he can do that. That is done by Parliament under the negative resolution procedure. The noble Lord can see from the next amendments which stand in my name that, The first order under this section shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament", and that, A statutory instrument containing a subsequent order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament". That is a fundamental misunderstanding.

The noble Earl, Lord Russell, referred to a concession that I had made in debating Clause 1. I noted his excitement about what I had said. I was simply reminding the Committee that when an order came before the House under the affirmative resolution procedure it had to take a view upon it. If for some reason it was believed that that order was not fit to be approved, it would be for the House to take that view, whether in whole or part. The noble Earl knows that it is not possible to amend the order on the Floor of the House. It would be a matter of rejecting or accepting the order.

We have taken the power to extend non-suspensive appeals to non-European Union countries. There are some countries outside the European Union which have proven and highly developed asylum procedures. It is not sensible that an asylum seeker should be able to delay removal by disputing the safety of Switzerland, for example, any more than it is sensible for an applicant to be able to delay removal by disputing the safety of a European Union member state. The Government believe that an out-of-country appeal is an adequate safeguard for asylum seekers who are to be returned to countries with highly developed and proven asylum procedures. That will be the key criterion for designation under Clause 2. The United States, Switzerland, Norway and Canada meet that condition. Those four countries are candidates for designation under Clause 2.

We will use the designation power under Clause 2 sparingly. We may wish to extend non-suspensive appeals to a country such as Australia (to which the noble Earl was anxious to send me a few moments ago) if we begin to receive asylum applicants who have travelled via that country. But we would not want to use the power under Clause 2 to extend non-suspensive appeals to countries which did not have proven asylum procedures. We do not envisage that we will make frequent additions to the list of countries to which applicants may be removed without a suspensive right of appeal.

I defend my right honourable friend. He is not up to any mischief. It is for Parliament to decide whether or not to add other countries to the list.

Lord Avebury

Does that mean that the Minister's colleagues have no intention of adding Dominica to the list? Although I have tried to probe this matter on several occasions, the noble Baroness has not given me a direct answer. I do not think anybody can say that Dominica has highly developed and proven asylum procedures; yet, as the noble Baroness will concede, the Government recently attempted to send someone to that country. I think that we should be told more about those countries it is intended to add to the list, apart from those already mentioned. If those are the only four countries that the Secretary of State has in mind, we know exactly where we are, but if we give him an open-ended power to add whatever countries he sees fit to add in future, even though it is to be subject to the affirmative resolution procedure, it will confer far too wide a power on him, bearing in mind the conduct that he has exhibited in other cases in the past.

I also take this opportunity to ask the noble Baroness why this subsection, if it were to be amended in the manner suggested, would refer to a member state and not a member state of the European Union. Was it the intention of the draftsman that one should be left to guess whether "member state" meant a member of the European Union, the United Nations, the OSCE or any other multi-lateral organisation of which Britain was a member?

Baroness Blatch

To deal with the final point raised by the noble Lord, my understanding is that it is quite common in legislation to refer to member states. It assumes that they are members of the European Union and not any other group. I refer to the European Communities Act 1972. I am saying that it is normal, and it is assumed that it is EU members and not members of any other grouping.

I have to return to what is being said glibly in the debate: references to the Home Secretary having a wide open power to use as he wishes. He does not. But of course the power in the Bill to add additional countries continues. It will be, if my amendments are accepted, for Parliament to take a view. We have no plans to add Dominica to the list. I have given the number of countries that we consider, but I cannot say that Dominica would not at some future time be a candidate for the list. We have no plans to add Dominica to the list. I have given the number of countries that we envisage. I have said also that we would not wish to add to the list frequently.

10.45 p.m.

Lord Clinton-Davis

With respect, the Minister has not answered the point I made. She has said that the Government have kindly agreed to introduce an amendment, to which we shall be coming in a moment, so that a statutory instrument will have to be approved by both Houses of Parliament. I understand that. But, as we know, the difficulty in dealing with subordinate legislation of this kind is that the Government are unlikely to be at any risk.

I repeat the question I posed earlier. In the light of the evidence that exists, why do we need to have this list of safe third countries? I shall give the Minister chapter and verse now. I thought that she had known about the situation. Let me go over the research that was undertaken to which I referred earlier. The only non-EU member states to which the Home Office proposed removal were: Bulgaria, two cases (0.3 per cent. of the sample); Czech Republic, two cases (0.3 per cent.); Kenya, 20 cases (2.7 per cent.); Romania, one case (0.1 per cent.); Tanzania, three cases (0.4 per cent.); Canada, one case (0.1 per cent.); Hong Kong, one case (0.1 per cent.); Norway, one case (0.1 per cent.); Switzerland, six cases (0.8 per cent.)—I have referred earlier to what happened in some of the Swiss cases—and the USA, eight cases (1.1 per cent.). It is almost a case of de minimis, is it not?

Baroness Blatch

I do not know why the noble Lord is running through a list of countries which have not featured in my thinking as candidates for the list.

Lord Clinton-Davis

They are non-EU member states.

Baroness Blatch

I have given the countries that we have it in mind to add. I have also said that it will be for Parliament, through the normal procedures, to determine whether countries are added to the list. The noble Lord asked me why we need a safe third-country principle in the first place. We know that noble Lords opposite did not like Clause 1. We now know that they are pretty unhappy with the principle of a safe third country in Clause 2. I am at a loss as to how noble Lords can at any time profess to be broadly in favour of the Bill. It is becoming pretty clear that noble Lords opposite are not in favour of the Bill.

Perhaps I may answer the direct question asked by the noble Lord, Lord Clinton-Davis. It is an internationally accepted principle that asylum seekers should seek the protection of the first safe country that they reach. In general, we do not consider that applicants should be able to pick and choose their preferred country of refuge. Where there is evidence that an applicant travelled through another safe country en route to the UK, that person's asylum application may be refused without the substantive merits of the asylum claim being considered. They may be removed to the third country, in which they can then apply for asylum. That principle has operated for many years.

We have created Clause 2 which gives a non-suspensive appeal right to a person coming from one of those countries which will be designated. The noble Lord is looking awfully bored. I have been here for very much longer than he has. I have to stay the pace, so I hope that he will at least hear me out while I answer his questions.

Lord Clinton-Davis

I have said nothing.

Baroness Blatch

It was the body language to which I was referring.

Lord Clinton-Davis

Body language? I was looking at my noble friend.

Baroness Blatch

The Government have created a non-suspensive appeal right. We have restricted it so far to EU member states. We have given an indication that we intend to consider additional countries. I have named which they are likely to be. I have said that we do not envisage using the measure frequently. I believe that it is a power that should be included in the Bill. I hope that the Committee will accept it.

Lord Clinton-Davis

I suppose that body language is definitively out in this Chamber. If I see any Members of the Committee engaging in body language I shall create a scene, I promise! There is to be no body language here. However, there is discontent and the Minister has not answered the point that I raised. We are dealing with a situation which is plainly de minimis in terms of the evidence. I have a high personal regard for the Minister, as she knows, but that does not stop me criticising her on a matter of substance. Body language or not, the Minister has not dealt with the evidence, which is plain, and I have a feeling that she is not going to deal with it tonight. Am I right or wrong?

Baroness Blatch

Read the body language!

Lord Clinton-Davis

She is not going to deal with it. I am not satisfied with the response but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 41: Page 3, line 17, at end insert ("by statutory instrument").

The noble Baroness said: In moving Amendment No. 41, I shall speak also to Amendment No. 42. Unless the noble Earl, Lord Russell, has any objection, in order to save time I shall refer to his Amendments Nos. 42A and 42B.

Earl Russell

On this occasion I shall not move my amendments.

Baroness Blatch

In that case, I shall speak to my own amendments. I have already explained to the Committee that we are taking the power to extend non-suspensive appeals to non-European countries because there are some countries outside the European Union which have proven highly developed asylum procedures. We have considered carefully the report of the Select Committee on the scrutiny of delegated powers. We have accepted its recommendation that the initial order designating safe third countries to which applicants may be returned without a suspensive right of appeal should be subject to the affirmative resolution procedure. Government Amendments Nos. 41 and 42 give effect to that recommendation. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 42: Page 3, leave out lines 18 to 20 and insert— ("() The first order under this section shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament. () A statutory instrument containing a subsequent order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Baroness said: I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 42A and 42B, as amendments to Amendment No. 42, not moved.]

[Amendments Nos. 43 to 45 not moved.]

Clause 2, as amended, agreed to.

Clause 3 [Appeals against certificates under section 2]:

[Amendment No. 46 not moved.]

Baroness Blatch moved Amendment No. 47: Page 4, line 18, at end insert— ("() Paragraph 29 of Schedule 2 to the 1971 Act (grant of bail pending appeal) shall have effect as if the references to appeals under sections 13(1), 15(1)(a) and 16 of that Act included references to appeals under this section.").

The noble Baroness said: Amendment No. 47 will provide bail rights to detained applicants awaiting a third country appeal under Clause 3. Under the Government's original proposals for strengthening our third country procedures, all appeals against removal to a third country would have been exercisable only from abroad. But we looked further at that point in the Bill and decided that it would normally be appropriate to retain an in-country right of appeal if the applicant were to be removed to a third country outside the European Union. The Bill was amended in another place to give effect to that decision.

Bail rights are linked to appeal rights. Detained asylum seekers awaiting an appeal on third country grounds under the 1993 Act already have the right to apply for bail. When all third country appeals were going to be exercisable only from abroad, there was no need to extend bail rights to cover appellants exercising the new right of appeal under Clause 3 of this Bill. But now that it is possible that there will be some appellants detained in the United Kingdom pending a Clause 3 appeal, we need to extend bail rights to such people. Amendment No. 47 does that. It is consistent with the Government's general approach of ensuring that asylum seekers detained pending an appeal have the right to apply for bail. I commend it to the Committee.

Lord McIntosh of Haringey

On Second Reading we welcomed the extension of bail rights and we welcome this further extension.

Lord Hylton

I also very much welcome this extension to bail in principle. However, will the Minister give an assurance that bail will not be set so high as to be completely beyond the means of the people in question?

Baroness Blatch

The granting of bail is not a matter for me as a politician or a Minister. It would be a matter for the authorities.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

Lord Dubs moved Amendment No. 48: After Clause 3, insert the following new clause— ADJUDICATOR'S RECOMMENDATION (".—(1) In Schedule 2 to the 1993 Act, after paragraph 3 there shall be inserted the following paragraphs— 3A. Where a special adjudicator confirms a refusal, variation, decision or directions against which a person has appealed on the grounds mentioned in subsections (1) to (4) of section 8 of this Act, he shall determine forthwith whether there are other circumstances which, in his opinion, justify allowing the person to enter or not requiring the person to leave the United Kingdom. 3B. If a special adjudicator determines that there are such circumstances, he shall direct that the Secretary of State shall grant leave for the person to enter the United Kingdom if he has not already been granted such leave and to remain in the United Kingdom for as long as those circumstances shall continue to exist. (2) In paragraph 4(1) of Schedule 2 to the 1993 Act, after the words "section 8 of this Act", there shall be inserted the words "and paragraph 3A of this Schedule".").

The noble Lord said: The purpose of this amendment is to enable an adjudicator to allow appeals for compassionate reasons. Under the current rules, an adjudicator can allow an appeal only if he finds that the appellant is a refugee as defined by the 1951 convention. An adjudicator cannot allow an appeal if the applicant qualifies to stay here under any other international treaty; for example, the European Convention on Human Rights. Nor can an adjudicator allow an appeal if he believes that the appellant is likely to suffer or even be killed if removed but not for a convention reason or if the adjudicator believes that the appellant should be allowed to remain here for compassionate reasons; for example, ill health.

In such circumstances, the only power that an adjudicator has is to make a recommendation to the Home Office and the Home Office is not obliged to follow such a recommendation. If this amendment were to be passed, the adjudicator would have greater powers to allow appeals on compassionate grounds on the lines that I have stated. I beg to move.

Lord Mackay of Drumadoon

Amendment No. 48 would represent a fundamental and, I have to say, unwelcome departure from the existing role of the special adjudicator. Responsibility for the exercise of discretion outside the Immigration Rules in individual cases rests with the Secretary of State: this amendment would go against that principle. It would in effect give special adjudicators at large powers to grant exceptional leave and would mean that we would be obliged to accept any recommendation from a special adjudicator that exceptional leave be granted. That would be wrong in principle.

Another reason why we consider this amendment unacceptable is that it overlooks the fact that the question of whether exceptional leave should be granted is already built into the initial consideration process. Anyone refused asylum has had the case for exceptional leave fully examined. It is only if the adjudicator's recommendation arises from exceptional compassionate circumstances which have not previously been considered, and which would merit the exercise of discretion outside the Immigration Rules, that we would be likely to consider accepting such a recommendation. We believe that this is a perfectly reasonable policy for the Government to follow. I therefore urge the Committee to resist this amendment.

11 p.m.

Lord Dubs

I hear what the Minister says. Of course, given the fact that exceptional leave to remain is a discretion exercised by the Home Secretary, it is perhaps worth commenting that the proportion of all asylum claims granted ELR dropped very rapidly. Speaking from memory, some three or four years ago the figure for those granted ELR was something like 60 per cent. but it is now down to about 20 per cent. Therefore, there has been a rapid drop. As ELR is a discretionary status, it is clear that the Home Office has deliberately sought to reduce the number of persons getting exceptional leave to remain simply by administrative decision. That explains why there has been such a sharp drop in the number of persons allowed to stay in this country.

That was a dramatic drop and was engineered by the Government. I had hoped that the amendment would, as it were, prove a better basis for granting ELR by allowing the adjudicator to allow specific appeals on grounds for which the Government normally grant ELR. However, I see that the Government are not to be persuaded and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Bishop of Ripon moved Amendment No. 49 After Clause 3, insert the following new clause— YOUNG UNACCOMPANIED ASYLUM SEEKERS (".—(1) This section applies to a child who arrives or is present in the United Kingdom unaccompanied by a parent, adult relative, guardian or other adult who assumes responsibility for the child, provided that the child has made an application for asylum in the United Kingdom or has expressed a fear of return to his country of origin or country of habitual residence. (2) If a doubt arises as to whether any such child is or is not under the age of 18 years, such child shall be regarded as being under the age of 18 years unless the Immigration Officer is able to prove to the contrary. (3) No child who arrives or is present in the United Kingdom unaccompanied by a parent, adult relative, guardian or other adult who assumes responsibility for the child shall be deported, removed from or required to leave the United Kingdom unless adequate arrangements exist for the child's reception and care in the country to which it is intended he should be sent.").

The right reverend Prelate said: With this amendment we return to the question of the determination of age. I should like to make a few points in that connection. The noble Lord, Lord Avebury, and I had an exchange about X-rays. The difficulty that we are in at present is that those children whose age is subject to question have a choice: they can either remain in detention with adults, or they can undergo the X-ray process to which the noble Lord, Lord Avebury, took such exception. Faced with that choice, it is difficult for them to make such a decision.

As I understood him, the noble Lord, Lord Winston, said that any determination of age would be liable to some degree of uncertainty; indeed, I believe that he mentioned something like two years as the possible extent of that uncertainty. The noble Lord, Lord Avebury, also mentioned the possibility of having a panel of paediatricians. I wonder whether the Minister would be willing to consider a proposal for such a panel to be established. There is, of course, no such panel at present. It is clear that children whose age is the subject of dispute are in very considerable difficulty. We have already given an account of the numbers of such children and the situations in which they find themselves. Therefore, it seems clear that we need to find some way of resolving the matter. I wonder whether the suggestion of such a panel would be acceptable, given the fact that there will be a degree of uncertainty. However, that uncertainty will not be so wide as to make the determination of age totally random. Clearly if you can get it right within two years, you would at least have some idea of whether you are dealing with a 16 year-old or a 20 year-old.

When we debated previous amendments, the Minister spoke about existing policy; indeed, I was most grateful to her for the way in which she did so. It seemed to me that what the noble Baroness was saying did embody the substance of subsection (3) of the amendment. I wonder, therefore, whether she would consider the contents of that subsection to be suitable for inclusion in the Bill. It is quite clear that the Immigration Service is operating its policy with sensitivity. That point has been made both by the Minister of State, Ann Widdecombe, and by the noble Baroness. Does the Minister feel that that part of the amendment would be worthy of consideration? I beg to move.

Viscount Brentwood

I originally wanted to support the amendment in principle, but I believe that my noble friend has answered my concerns about the treatment of young people. I hope that the noble Baroness, Lady Williams, will write to my noble friend with the details of the youth who has been in and out of detention for two years. I believe that my noble friend shares with me a horror of people under the age of 18 being in detention at all.

It is important that we investigate such situations to ensure that they do not recur. Young people awaiting the determination of an asylum application should not be kept in detention. Perhaps my noble friend could see that they are fostered out while the appeal is pending, I should be much happier with that.

My noble friend answered the questions posed by subsections (2) and (3) of the amendment and I am not sure that anything more is needed. However, I should like a further assurance that we will continue to treat child asylum seekers with the utmost care, and not push them into detention just because an assessor considers that they might be over 18. We have been informed, I think by the Refugee Council, that quite a number of juveniles have been detained because they were originally thought to be over 18 when they were not.

Baroness Williams of Crosby

I apologise that I was not in the Chamber when the noble Viscount started his remarks, but I wish to give him the assurance that I have every intention of writing about the case to the noble Baroness. It troubles me because my understanding is that as of 1st April the young person was still in detention and had been there for a substantial part of the past 18 months. I shall send the details to the Minister.

Baroness David

Despite the careful speech of the noble Baroness in response to the earlier amendment moved by my noble friend Lady Hilton, there are still anxieties about children being detained when they come to this country. So I am happy to support the right reverend Prelate's amendment.

After the sad death of Lady Faithfull earlier this year, I have taken on the job of chairing the all-party Group for Children for the remainder of the Session. I am anxious to follow her example in attempting to improve the plight of unaccompanied children asylum seekers. I am sure that most Members of the Committee here today will remember the amendment put forward by Lady Faithfull and the noble and learned Lord, Lord Brightman. Members will remember their successful efforts during the passage of the 1993 Asylum Bill through this House, when the noble and learned Lord moved an amendment at Report stage to set up the panel of advisers for unaccompanied refugee children at the Refugee Council. I very much regret that the noble and learned Lord is not here today as he has been seriously ill and, although improving, he will not be back for another week. His help would have been very much to our advantage while discussing these children. His amendment, which was supported on all sides of the House, was won by a large majority, 169 to 114.

The panel, set up and funded by the Home Office, has been highly successful and is working well. The Minister referred to it when she spoke earlier. The panel is very keen for the amendment to be accepted, as it would help in its work and give more power to its elbow. None of us can contemplate the detention of children with equanimity. Nor can we tolerate the removal of children to a country without certainty that they will be adequately cared for when they arrive there. And this does no more than put into law the informal Home Office policy that now exists and which again I spoke to earlier.

The acceptance of this amendment would be a real step forward in the protection of vulnerable children. I hope very much that the Minister can look on it favourably.

Lord Henderson of Brompton

I break my silence for the first time during the Committee stage to say that I too very much hope that the noble Baroness will respond favourably to the amendment. I especially bear in mind the words which she uttered earlier today which I noted, that understanding the need of children is very much the intention of the Government. If she could only display the generosity of that sentiment in regard to this amendment and the next, I should be most grateful, as I am sure would most of the Committee.

Lord Dubs

I support the amendment. I have already declared an interest in the Bill. Until about a little under a year ago, I was director of the Refugee Council. I was director at the time the panel was established. I hope that I played some part in ensuring that it came effectively into operation. I believe that it has been a success. It has done a great deal to protect the rights of unaccompanied refugee children.

The amendment would go one stage further. There can be no one who accepts the principle that children should be detained. I visited Campsfield House a couple of years ago. Children were detained there. I know that children have been detained at other centres run by the Home Office, prisons, and detention centres. It seems to me deplorable that young persons against whom there are no criminal charges, who are perfectly innocent, are being detained on the decision of a Home Office official. No matter how worthy the official, and how objectively the official seeks to use his or her powers, it seems wrong in principle that anyone should be denied his liberty in this country without a proper judicial process.

The amendment does not deal with that principle, but it provides a safeguard against children being held in detention. I give it my warm support.

Lord Winston

Perhaps I may ask the Committee to take note of one case which has just been drawn to my attention by the refugee legal centre. It illustrates some of the difficult problems with regard to age. An asylum seeker arrived in the UK in December 1994 when he was 15, giving his age as 21. He was held in detention for four months before being granted bail by the independent adjudicator into the care of Hillingdon social services. They accepted that he was a minor under 18.

The Immigration Service has always maintained that he was an adult. The asylum seeker has since been detained twice and is currently in detention as at 1st April 1996. That is despite two reports by independent medical experts. I know both medical experts. One is Dr. Persoff, a consultant fellow of the Royal College of Physicians; the other is Dr. Peter Renton, an expert radiologist whom I have known for many years.

Dr. Persoff reports that both clinically and radiologically the age of this asylum seeker is just now over 17, which accords with his stated age of birth. Dr. Peter Renton reports on his radiology, saying that the distal radial growth plate is on the point of fusing but is not yet totally fused, which would make his age around 17. So there is some congruence on that issue. However, the immigration services still do not believe that the asylum seeker is a minor, and he is being detained in a unit with adults. No special provision is being made for his education. It illustrates the difficulty of this grey area.

Lord Avebury

I am sorry to hear from the noble Lord that radiological techniques are being used for age determination despite the fact that he deprecated them earlier. I ventured to point out earlier that the BMA reached the conclusion that radiological techniques for age determination should not be applied, and that it was incorrect and ethically wrong to use a technique of an invasive nature, as the noble Lord has already pointed out, when there is no clinical necessity for it.

I say this with some regret because the absence of any reliable techniques for age determination was one of the factors which gave rise to the earlier amendment. It is at the centre of the amendment moved by the right reverend Prelate.

I suggested—I still believe that it is a sensible idea—that one should ask paediatricians to express an opinion and, if the Home Secretary wishes, take a majority opinion of several of them if there is doubt.

I warmly support the right reverend Prelate in the third of his paragraphs. If we could get the concessions that the noble Baroness said already exist written into the statute book, it would be highly desirable. Whatever the present Home Secretary may do regarding ensuring that adequate arrangements exist for the child's reception and care overseas, if it is not a statutory obligation it could always be watered down or eliminated by someone less liberal who occupies the post of Home Secretary in the future. I hope therefore that the noble Baroness will find it possible to do as the right reverend Prelate suggests and incorporate at least subsection (3) in the statute.

11.15 p.m.

Lord Burnham

Is the case to which the noble Lord, Lord Winston, referred in relation to this amendment the same as that referred to by the noble Baroness, Lady Williams, on a number of occasions in speaking to this amendment and earlier ones? It seems remarkably familiar.

Baroness Williams of Crosby

I think that is so.

Baroness Blatch

It is very difficult to respond to particular cases. I hope the noble Lord will write to me with the evidence that he cites in the course of this debate. I shall reply fully to him and make any reply I give to either the noble Baroness or the noble Lord available to Members of the Committee who have been interested in the debate.

I have to say to the noble Lord, Lord Avebury, that through both these and earlier amendments there is a desire on the part of the Opposition and the right reverend Prelate to put the burden of proof on the Home Secretary. It would seem that, given that the Home Secretary will not have the information that will give the particular age of a person—particularly in the case cited, in which the child himself actually claimed to be another age—that immediately causes a problem. To deny the methodology for determining age seems quite extraordinary and would create a conflict. As the noble Lord knows, I shall oppose the reversal of the burden of proof.

The amendment as worded would apply to any child who had expressed a fear of return, even where that fear was not based on any convention reason. It also confuses the issue of whether a child is a refugee with the issue of whether a child should be removed.

As I set out in great detail earlier, we recognise the potential vulnerability of an unaccompanied asylum seeking child. That is why we have special provisions in the Immigration Rules for handling their cases. Last year we set up a special case working unit to ensure that their applications were given priority and were considered by specialist case workers. That development has been widely welcomed.

During the passage of the Asylum and Immigration Appeals Act 1993, my right honourable friend the then Parliamentary Under-Secretary of State said in another place that the Government would not send an unaccompanied child to another country, whether or not that child had claimed asylum, unless they were satisfied that safe and adequate reception arrangements had been made. I am happy to repeat that commitment today. Any return of an unaccompanied child is arranged by negotiation with those responsible for his or her care.

The Government's view is that where a child has no claim to refugee status it is normally right that he or she should be returned to their own family, community and culture. That is consistent with UNHCR guidelines which emphasise the importance of family unity.

If a child has no claim to refugee status but we cannot be satisfied about reception arrangements, then we grant the child exceptional leave to remain. But the decision whether to return a child must be made after the child's asylum application has been considered.

The amendment as worded would apply to any child who had expressed a fear of return, even where that fear, as I said, was not based on any convention reason; it is therefore open to abuse. While we sympathise with the sentiments behind the amendment, we cannot agree that it would add anything to our present safeguards for unaccompanied children.

Amendment No. 49 also deals with disputes over the age of an applicant. As I have already explained, 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. This amendment 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. I explained in relation to other amendments why it is right that the burden of proof should remain with the applicant.

To return to the statistics I gave on this point earlier, the vast majority of applicants are 16 or 17. It seems to me that if somebody claims to be 16 or 17—indeed, if somebody older than 18 claims to be 16 or 17—in order to enjoy the more generous provisions, it is incumbent upon somebody to prove that that is his (or her) age. That is the case of the person who I understand from what has been said had claimed to be 24 when in fact that person was only 15, 16 or 17.

The right reverend Prelate asked me a particular question. We are prepared to look at any evidence submitted on behalf of the applicant as to the applicant's age. That can include medical evidence and indeed any evidence that would substantiate the age that is claimed. But we see no need for setting up a new mechanism for that purpose.

Let me also say to the right reverend Prelate, who referred to a statutory reference to reception arrangements, that we believe that such a measure is unnecessary. It would address a non-existent problem. No one—certainly no one speaking in the debate today, now or earlier—suggested that our approach to ensuring reception arrangements in the receiving country is anything other than scrupulous. We have never been found wanting in that regard. I therefore hope that the amendment will not be accepted.

The Lord Bishop of Ripon

I am a little disappointed that the Minister is not willing to look a little more favourably on the amendment, especially in view of the widespread view in this House that, although our practice is good, it would be even better were it enshrined in statute. Clearly, I shall withdraw the amendment, but I hope that the noble Baroness will be willing to consider the matter a little further. We shall return to this matter on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 50: After Clause 3, insert the following new clause— REFERRAL OF CHILDREN TO PANEL OF ADVISORS (". Where a person is, or appears to be, or alleges that he is, under the age of 18 years and expresses a fear of return to his country of origin, it shall be the duty of those statutory services who are aware of his circumstances to refer him to the Refugee Council Panel of Advisors for Unaccompanied Refugee Children, unless the child objects to such a referral.").

The noble Baroness said: The amendment stands in my name and that of the noble Lord, Lord Henderson of Brompton. It would ensure that all statutory authorities that became aware of the circumstances of an unaccompanied refugee minor would have a duty to refer that child to the Refugee Council's panel of advisers for unaccompanied refugee children.

We are still dealing with children but also with a new point. On the last amendment, I explained about setting up the panel of advisers and how it was agreed. In fact it opened in 1994. Since then it has received just over 1,000 referrals. Currently, it is headed by a co-ordinator who runs a team of 29 advisers. Last year, the National Institute of Social Work conducted an evaluation of the panel and found that it met all its stated objectives. The Home Office has agreed funding. Indeed, it has increased the funding. Local authorities agree that the panel has been a help to them in their work, and more importantly, refugee children have found that there is someone at hand to help them through a bewildering asylum process and ensure access to those services to which they are entitled. In short, the panel has been a success.

The majority of cases are referred to the panel by the Immigration Nationality Department of the Home Office. There have, however, been many cases where a child who had entered the UK has not been immediately or promptly referred to the panel. That may be because he (or she) has not claimed asylum, even though the child fears to return to its country. In such cases, a child may enter the country without claiming asylum and may subsequently be referred to a social services department as being unaccompanied and without a carer; or it may come to the attention of social services or the local education authority that a child unaccompanied by its parents is being cared for in an informal arrangement with members of the child's community.

Social services departments may be more concerned with providing care to a child than sorting out the child's immigration status, which may be a lengthy process and will depend on gaining the trust of the child, who will have to explain how it reached the UK, its reasons for travelling and how long it had been here when the social services department intervened. It is important, though, that children who are in fear of returning home should make a prompt application for asylum and should benefit from the Refugee Council's expertise and an independent adviser's support in the process right from the start. The amendment seeks to ensure that that is the case by ensuring that all such children are promptly referred to the panel, regardless of the point at which they claim asylum.

I have a number of examples—not referred to before—bearing out my argument. I will just state one. A 16 year-old boy from Zaire was referred to the panel in January 1996, though he arrived in the UK in 1994. He had been looked after by a local authority and was placed with foster parents. At the time of referral his immigration status was unclear; indeed, the reason for referral was to seek the assistance of the panel in establishing his status. The adviser arranged legal representation and accompanied the young man to the Home Office so that the question of his status could be resolved. He further liaised with the social services department so that he could be referred for some much needed counselling.

That case outlines just one example where the panel received referrals. It is anxious to help with the difficulties because we do not want children remaining illegally. They may have come as a visitor and over-stayed, but they are therefore here illegally and it is important that someone helps them properly to establish their status. The amendment is simple and would probably not involve many children. It would be a great help and the panel is keen for the amendment to be accepted. I hope it will be. I beg to move.

Lord Henderson of Brompton

Perhaps I may say a few words in support of the amendment moved by the noble Baroness, Lady David. I would have thought that the Government could accept this amendment. I hope that I can have the attention of the noble Baroness.

Baroness Blatch

I apologise to the noble Lord, but I have been concentrating extremely hard on this Bill and every now and again I have to confer with my Whip for information. I hope the noble Lord will forgive me for that.

Lord Henderson of Brompton

Of course I accept the graceful explanation of the noble Baroness—but she is again talking to her noble friend instead of listening to me while I make a few points.

All I wish to say is that the noble Baroness, Lady David, expressed the view of the panel that the reference to the Refugee Council panel of advisers should be as early as possible. The panel has many examples. The noble Baroness gave one. It is too late at night for me to give others. But there is no doubt that the panel is working extremely well. It would work much better if there was a statutory requirement for reference to it of appropriate children to be made early. That is all there is to it. I hope that the noble Baroness will look at the amendment sympathetically.

The Lord Bishop of Ripon

I add my support to the amendment. Clearly the panel of advisers which was established during the passage of the 1993 Bill has proved a great success. It met all its stated objectives, as the noble Baroness, Lady David, said. Funding has been agreed for it; local authorities agree that it has been a help to them, and refugee children themselves find that there is someone at hand to help them through this bewildering process.

There have been cases—indeed, a good many—where children have entered this country but have not been promptly or immediately referred to the panel. That creates difficulties. They may be referred to a social services department which will be more concerned with providing care than with sorting out the immigration status. It is important that the children should have access to the panel of advisers, which has proved itself so well. I hope therefore that the noble Baroness will give favourable consideration to the amendment.

Baroness Williams of Crosby

This appears to me to be precisely the kind of amendment that the Government may feel able to accept. It does not raise questions about bogus applications or about methods of getting around procedures. It is simply an extremely helpful proposal to refer young people to this expert council of advisers. I hope that the Government, who have so far been reluctant to accept amendments, at least on the occasion of today's Committee sitting, will consider doing so.

The amendment would relieve some of the burden of work on the immigration department. It would enable the Refugee Council panel of advisers to make its own judgments about the child and how much he or she might be at risk, and, indeed, perhaps about the precise age of the child. However, the crucial point is that the child would have people to whom he could turn, people whom he could learn to trust and people whose job it would be to try to assist him to resettle in this country, if that were the ultimate outcome of the case. I wonder whether the Minister might not consider accepting what seems to be a wholly helpful amendment and not one that constitutes any clash of ideology or principle.

Lord Hylton

In replying to an earlier amendment the noble Baroness the Minister took exception to the words, expresses a fear of return". One understands her reason for doing so in that she thought that in the context of previous amendments this was too wide. I do not think that objection can be made in the case of this amendment. I say that because, being in a strange country, a child may easily have genuine fears of all kinds. It is such fears that can best be dealt with through the help of the panel of advisers.

I say in passing about the panel that it fulfils the kind of role that is fulfilled in this country in respect of British children by people like the amici curiae or the Official Solicitor. Therefore, the panel of advisers is extremely valuable in ensuring that the child's state of mind and all his personal details are dealt with in an appropriate manner. I hope that the amendment will commend itself to the Government.

11.30 p.m.

Baroness Blatch

I am again somewhat perplexed by the example given by the noble Baroness, Lady David. I hope that she will write to me with details of it. She said that the child arrived in 1994 and was not referred until 1996. If that is the case, did he arrive as an asylum applicant in 1994? Were the authorities aware of him in 1994 as an applicant for asylum? If that is the case, I am quite puzzled, because my understanding is that child applicants are dealt with almost within hours of arrival. I find it very strange that someone has been in the country for two years without being referred. I would ask the noble Baroness to write to me with details of the case to which she has just referred.

The panel of advisers is a non-statutory body administered by the Refugee Council. The advisers act as friends to unaccompanied children seeking asylum and assist them in their dealings with the Home Office, social services and other agencies. In the last financial year the panel dealt with around 700 children. The panel is valued by all those working with unaccompanied children and has proved to be another positive development in this sensitive area.

Amendment No. 50, as drafted, would extend the services of the panel to children who were here with their families. That is neither necessary nor appropriate. The purpose of having a panel of advisers is to offer help to children who do not have relatives or guardians who can look after their interests. It is entirely right that a child who is with relatives should look to his or her own family for assistance.

The amendment would also place a statutory duty on all the agencies dealing with a child to refer him to the panel. A child asylum seeker is likely to have dealings with several different agencies; for example, education services, health services and, if the child is unaccompanied, social services. It would be unnecessarily complicated and burdensome to require all these bodies to refer a child to the panel. Well over half of all referrals are made in the first instance by the Immigration Service or the Asylum Directorate. That is done extremely speedily after they enter the country. Our special unit dealing with unaccompanied children checks to see whether a new case has been referred, and if there is any doubt it will contact the panel. The Asylum Directorate and the Voluntary Services Unit have regular meetings with the panel to discuss its performance and matters of mutual interest. The current arrangements are working well. We do not know of any complaints about them. The cases which have been raised in the course of this debate really are very strange. We intend to look into them, but we see no need for any change. Therefore, I hope that the amendment will not be pressed.

Baroness David

I thank all those who have spoken in support of the amendment. Quite a number of people have done so and I am very grateful for that. I am very disappointed with the Minister's response. It is the children who have slipped through the net and have not been noticed, about whom we are concerned. I believe that the boy from Zaire had been here since 1994 and he had somehow slipped through the net. His immigration status had not been satisfactorily dealt with. That is the sort of case we do not want to let slip through. If the wording of the amendment is being criticised, I intend to have it looked at. I shall take the amendment away for the time being. I shall come back with it because it is a very reasonable one which will help a certain number of children who are not referred at the moment and who have slipped through. I am sure that the criticisms of the wording of the amendment will be noted. I shall certainly return at Report stage with a slightly differently worded amendment which will take account of the Minister's response.

I still believe that it is a very disappointing reply. We are asking for a very simple thing which will help the children. The panel is very ready to deal with these situations and to help the children. As I say, I am very disappointed. I shall take the amendment away and see whether I can bring something back which will be more acceptable to the Minister.

Baroness Blatch

I do not know how many times I have said it during the course of the day, but I am surprised that the noble Baroness has not accepted my word that unaccompanied children who apply for asylum are referred to the panel, the social services, education and all the other agencies. Is the noble Baroness actually citing the case of a child entering the country in 1994, seeking asylum and not being referred until 1996? Is she saying that the child slipped through the net? That means that perhaps the authorities were not even aware of the person being in the country. How can the Government possibly respond to a problem which they do not even know is there? The noble Baroness must explain how the child was made known in 1994 and not referred to the panel until 1996.

Baroness David

The point is that they had not applied for asylum. They may have been here.

Baroness Blatch

But we did not know about it.

Baroness David

Indeed, and that is the point. We do not want to have children here on an illegal basis. That is the whole point of the amendment.

Baroness Blatch

If we do not know that they are here, we cannot refer them to any panel, statutory or otherwise. Unless we actually know that they are here, how can any measure in this Bill help?

Baroness David

I am not saying that the Government can do it. In this amendment we are asking the local authority, or whoever knows about them, to refer them to the panel. I am not saying that it is the job of the Home Office because it may not know about this. If the child is with foster parents, or something like that, or in the care of the social services, they must know about it. But they may not have taken the action to give the child proper asylum status. That is what we want to try to put right in this amendment. I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

Lord Clinton-Davis moved Amendment No. 51: After Clause 3, insert the following new clause— SECRETARY OF STATE'S ASSESSMENT OF COUNTRY (" .—(1) The Secretary of State shall make available to any asylum applicant or appellant on request his assessment of the conditions in the country of nationality or habitual residence of the applicant or appellant, provided that in the preceding 12 months at least 50 asylum applications were made by applicants from that country. (2) Any assessment provided in accordance with subsection (1) shall include information on general political circumstances, on abuses of human rights by the national government or any other person and on the legal system.").

The noble Lord said: We seek here greater transparency on the part of the Secretary of State. We want him to publicise his assessment of conditions in the countries from which asylum seekers originate. I believe that that is a perfectly reasonable thing to expect. The UNHCR sets out in its handbook guidance for the states which interpret the 1951 convention. I shall not quote that because the Minister is very familiar with it. The essence of it is that a knowledge of conditions in the applicant's country of origin is an important element in assessing the applicant's credibility.

The Government made some moves in another place because Ann Widdecombe, the Minister of State at the Home Office, said in Committee (at col. 89 of Hansard on 11th January 1996) that the Government had undertaken to provide Parliament with country briefing papers prepared by the Home Office about conditions in countries which are to be designated. She also said that in deciding whether that fear was well founded, asylum case workers would rely on information provided by the individual and by the Foreign and Commonwealth Office and on updated information on the conditions prevailing where the man lived, including on the country in which he lived and the particular geographical area from which he came. That is all very fine.

The problem is that taking, for example, Nigeria, the way in which the Home Office went about its business of assessing the situation was wholly defective. In 1994 the American State Department reported of Nigeria: The Government routinely detains human rights monitors, journalists and political opponents throughout the year for publishing statements critical of the government".

Of course, it got much worse than that - with attacks on trade union activists, on political activists and on anybody who criticised the Nigerian Government. Then we had the arrest and ultimately the judicial murder of Ken Saro-Wiwa. At that very time when Ken Saro-Wiwa and his colleagues were being detained, the Home Office, with its all-pervasive wisdom, was telling immigration officials that there was no evidence that Ogonis faced persecution from the Nigerian authorities for membership of MOSOP. That is extraordinary and outrageous. It shows how defective the judgment of the Home Office can be. But perhaps it is not the judgment of the Home Office; it may be the judgment of the Foreign Office. In any event, it is the judgment of the Government and they must face up to that responsibility.

When the matter was raised in another place, the Minister chose not to reply to that point. I believe that it is important that the Government should not only make country assessments in countries to be designated available, but that they should provide the maximum information in the most public way. The material should be made available not simply to Parliament by putting it in the Library; it should be made available to applicants and appellants so that they can assess how relevant it is. They should be in a position to challenge inaccuracies. That is simply not the case at present.

It is interesting that in a recently published report, commissioned by the Asylum Rights Campaign, a special adjudicator is quoted as having stated in a determination of an asylum appeal: In this case the Secretary of State 'understands' that if an individual is not politically active and is only involved in trade unions, he has no reason to fear persecution. I find some difficulty in following that argument and I do not know where he 'understands' it from"— that is, where the Secretary of State understands it from. I think that we should all like to know where the Secretary of State understands it from.

I have a case at present involving a Nigerian. The Secretary of State says, "I have no reason to believe that this man is at risk", in a situation where he has been actively involved in this country over some years now against the Nigerian Government—against that dictatorship. The Government must be much more frank and open because it can be a matter of life and death. It is not satisfactory for the Government to live in a make-believe world and to say that somehow or other most people are okay in Nigeria and have little to fear. That is not the case. The Secretary of State knows that and I fear that in this respect his conduct has not been up to the highest standards that we expect of a Home Secretary. I beg to move.

11.45 p.m.

Lord Avebury

I support the noble Lord's amendment and underline the fact that the Home Office has, to my knowledge, published only two country assessments. Those assessments relate to Nigeria and Ghana. It would be very helpful if we knew the background to the department's thinking on many other states from which asylum seekers arrive in this country. I am afraid that the knowledge of the Home Office is grossly inadequate. I reach that judgment on the basis of the standard of the replies given by the noble Baroness in the individual country debates held last week. Some of those misstatements have been repeated in a letter from the noble Baroness that I received only this morning. I did not bring the letter with me and I do not read it out. But I remember two statements in particular. One was that the National Human Rights Commission in India had jurisdiction over Kashmir. I had pointed out to her in last week's debate that it was specifically estopped from looking at human rights violations in that territory. The other statement was that the International Committee of the Red Cross had access to places of detention in Kashmir, whereas only recently it had been forced to withdraw. The knowledge of the department as to the situation in that territory is grossly inadequate.

We have already heard about Nigeria from the noble Lord who moved the amendment. We also touched on this matter last week. The Home Office had to withdraw the first instalment of its country assessment on Nigeria when it was heavily criticised, as the noble Lord, Lord Clinton-Davis, will remember in a pamphlet published by the Refugee Council under the title Beyond Belief: The Home Office and Nigeria. That contained a long litany of errors and omissions in the Home Office's document, some of which we had already taken up. For example, it was said that the National Consultative Assembly was an elected body for the majority of delegates. It had to be pointed out to the Foreign Office and the Home Office that only 300,000 people voted for the elective seats on the National Consultative Assembly but that a third of the seats were nominated by the military head of state, General Abacha. It was that kind of omission and distortion of the facts which gave a totally misleading impression of the state of human rights in Nigeria and the likelihood that anybody would have to seek asylum from that country. It is not surprising that, given that the wrong impression has been created by the Home Office document, during the first four months of 1996 there has not been a single asylum application from Nigeria accepted in this country. I believe that applicants are entitled to know what is being said about these countries so that they can contest the misstatements of fact and errors by way of omission that lead adjudicators in some cases to reach the wrong decisions.

Earl Russell

The noble Baroness may be well advised to accept the amendment. It may save a great deal of trouble. Should she not accept it, it is my understanding that, if Parliamentary Questions were to be tabled asking for the assessments for each country in turn and severally, the noble Baroness would be bound under the procedure for Questions to Ministers to give answers which did not knowingly mislead the House. It might be tidier and more economical if she accepted the amendment instead.

Baroness Blatch

Does the noble Earl suggest that I have misled the Committee, that I may mislead the Committee or that I would not mislead the Committee?

Earl Russell

None of those matters at all. I simply suggest that the noble Baroness would be under an obligation to answer the Questions.

Baroness Blatch

With or without the amendment, I am under an obligation to answer questions honestly at the Dispatch Box. I believe that I have always done that. I was extremely open with the noble Lord, Lord Avebury, in the point that he raised on country matters on another part of the Bill. I have written to him fully in a letter since then and have no objection to his making that public. I refer in particular to the point raised by the noble Lord on Kashmir. The noble Lord admitted that the Human Rights Commission had been invited to investigate an incident and that it had been an extra-judicial killing. Even that point has been referred to previously.

Asylum seekers often base their claim, at least partly, on allegations of human rights abuses and persecution in their country. Wherever that is a significant issue in the claim, the letter giving reasons for refusal will respond by setting out the Secretary of State's view. That view can then of course be challenged by the applicant on appeal. In addition, we have made available written country briefs on Nigeria and Ghana setting out our assessment of conditions in those countries. Those briefs are available to applicants, representatives and adjudicators.

Furthermore, we have undertaken to provide assessments of all countries we put forward for designation under Clause 1. Those briefs will be provided to Parliament as well as to the appellate authorities and will be available to applicants. Similar briefs on other countries of origin are also planned.

Against that background, I oppose the amendment for two reasons: first, it is unnecessary; and, secondly, it gives unjustified prominence to an issue which should form only one element in the overall consideration of the asylum claim. At present the Secretary of State is under a requirement to consider all matters which are relevant to the asylum claim. In setting out reasons for refusal, he must address any matters which are central to the claim. To the extent that that requires responding to allegations about conditions in the country, the obligation to do so is already here.

But the assumption behind the amendment is that the assessment of general conditions in the country is prescriptive of the decision. That is misguided: each case is considered on its individual merits, taking account of the facts and the circumstances relating to the particular case. An applicant from a country with human rights defects may be at no risk of persecution, and an applicant from a country with a good record may, nevertheless, have a well-founded fear of persecution. In short, the obligation on the Secretary of State should be to give reasons for refusing the application. We see no merit in imposing any requirement beyond that.

Much has been said about Nigeria. I shall say just a word or two about it. The Government of course share the concerns about the human rights record in Nigeria, including the deplorable execution last November of Ken Saro-Wiwa and his eight associates. We are monitoring the complex situation closely with the FCO, but consider that individual Nigerians whose claims have been individually considered and properly determined can be returned under normal immigration procedures. We have no reason to believe that those being returned are facing difficulties. The Home Office disclosable brief on Nigeria was updated in December 1995 to take account of more recent developments, including the execution of Ken Saro-Wiwa. Further updates will be delivered as necessary.

The overall assessment remains that ordinary Nigerian citizens can express their political opinions without fear of persecution. Independent adjudicators overwhelmingly agree with Home Office decisions in Nigerian cases. The Refugee Council report of 9th October criticising earlier background brief was highly selective. It overlooked the essential point that asylum applications are considered on their individual merits. That is our obligation under international agreements. A full response was sent to the chief executive of the Refugee Council on 15th December 1995.

Perhaps I may say to the noble Lord, Lord Avebury, that the Home Office did not withdraw the Nigerian brief. The first version was made public months before the deplorable execution of Ken Saro-Wiwa and his colleagues. It was entirely right to update the report to take account of those and other relevant events, and that is precisely what happened.

Lord Clinton-Davis

I find that reply mind-bogglingly complacent and indifferent to the realities of the situation within Nigeria. How does the Minister know with certainty that the individual cases with which the Home Office is dealing are people who will not disappear? Does it keep an eye on them? How does it know?

The truth of the matter is that they do not know. How on any reasonable basis could the Government come to the conclusion at which they arrived in 1995 before Ken Saro-Wiwa was killed while under arrest? How could they come to a conclusion which was so markedly different from that of the United States? The fact of the matter is that they misled themselves, quite apart from misleading the country, because they wanted to come to that conclusion.

In the light of all those circumstances, how, realistically, could the Government have reached those conclusions in good faith? Of course, they have an overwhelming desire to ensure that we have as few asylum seekers as possible, so the conclusion is that, if there is any doubt about them, send them back, even to Nigeria.

The Minister says that the amendment is unnecessary. I come to a sharply different conclusion. I believe that there is an obligation on the Committee to press the Government on this point. She says that each case must be decided on its merits. I do not believe that the Government are capable of deciding each of these cases on its merits because they do not know what will happen to these people. She says that such people may by at no risk of persecution. That is far from certain. I believe that the Minister's response is so unsatisfactory that I wish to seek the view of the Committee.

11.56 p.m.

On Question, Whether the said amendment (No. 51) shall be agreed to?

Their Lordships divided: Contents,12; Not-Contents, 37.

division no.3
Avebury, L. Harris of Greenwich, L.
Clinton-Davis, L. Hylton, L.
Dubs, L. McIntosh of Haringey, L
Graham of Edmonton, L. [Teller] Ripon, Bp.
Hacking, L. Russell, E. [Teller.]
Williams of Crosby, B. Winston, L.
Addison, V. Kinnoull, E.
Blatch, B. Lindsay, E
Brabazon of Tara, L. Liverpool, E.
Brentford, V. Long, V.
Brougham and Vaux, L. Lucas, L.
Burnham, L. Lucas of Chilworth, L.
Carnock, L. Mackay of Ardbrecknish, L
Chalker of Wallasey, B. Mackay of Clashfern, L. [Lord Chancellor]
Chesham, L. [Teller]
Courtown, E. Miller of Hendon, B.
Cumberlege, B. Mountevans, L.
Dean of Harptree, L. Northesk, E.
Denton of Wakefield, B. O'Cathain, B.
Dixon-Smith, L. Rankeillour, L.
Gardner of Parkes, B. Rawlings, B.
Goschen, V. Shrewsbury, E.
Harlech, L. Stockton, E.
Henley, L. Strathclyde, L.[Teller.]
Inglewood, L. Trumpington, B.

Resolved in the negative, and amendment disagreed to accordingly.

12.4 a.m.

Baroness O'Cathain moved Amendment No. 51A: Before Clause 4, insert the following new clause— CARRIERS' LIABILITY (". In section 1 of the Immigration (Carriers' Liability) Act 1987, after subsection (2) there shall be inserted— (2A) No liability shall be incurred under subsection (1) above in respect of any person who on arrival is granted leave (including limited leave) to enter or remain in the United Kingdom.".").

The noble Baroness said: Before moving this amendment, I should like to express my gratitude to the officials in the Public Bill Office and the Government Whips' Office who have been most kind in rearranging the position of Amendment No. 67 which is now Amendment No. 151A so that I can be absent on Thursday to attend to a sad family matter abroad. I apologise to Members of the Committee who may have been inconvenienced because of that but I am exceedingly grateful for the help and courtesy that I have received.

On Second Reading, I raised anxieties about the operation of the Immigration (Carriers' Liability) Act 1987. I sought guidance on the scope of the Bill to establish whether I might draw that Act into our debate. I have been advised that the Bill's wording, which includes the words "other connected matters", provides me with such an opportunity. While some may think that the issue I am raising is peripheral to the core concerns raised in the Bill, I believe, nonetheless, that this is an important opportunity to put right a particular injustice.

I had been aware of the broad problems consequent upon the carriers' liability legislation for some time, but my awareness was certainly heightened when I joined the board of British Airways. At this point I must, of course, declare an interest in that respect. However, I can assure Members of the Committee that my concern about the issue is certainly not solely due to the inconvenience and financial penalty incurred by British Airways, other airlines or even shipping companies. Indeed, the Chamber of Shipping, which represents the ferry industry, supports the amendment. My concern is the fundamental issue of wanting to see justice and fair play done.

My amendment relates to one very specific element of the carriers' liability Act which I will describe later. Members of the Committee may benefit from a brief description of the background to the issue. The Immigration (Carriers' Liability) Act requires carriers to pay a charge, as they call it, of £2,000 in respect of any passenger that they bring to the United Kingdom who is carrying incorrect documentation; or, indeed, in some cases, no documentation at all. Documentation seems to go mysteriously missing between the check-in point in the foreign country and the arrival point in the UK.

Carriers accept that responsibility; indeed, most of them employ considerable resources to comply with the requirements. I do not seek to question the expectation of UK Immigration in respect of compliance generally with the Act. However, since Second Reading, I have visited Frankfurt Airport to see for myself the problems created by the legislation. The difficulties that check-in staff encounter in attempting to comply with all the complexities of the legislation are truly mind boggling and, quite honestly, have led me to assert that all staff dealing with the processing of passengers for flights—and, indeed, for sea crossings—to and from the UK are expected, in effect, to act as unpaid immigration officials.

There is also quite a disturbing side to the process. Experience over many years has indicated that illegal immigrants, who, in the overwhelming majority of cases, are actually economic migrants and not genuine political asylum seekers, come from countries where the colour of their skin is different to the majority in this country. Because of many cases where such people have proved to have had incorrect or forged documentation, the check-in staff are doubly wary. They are trained to engage in what is euphemistically called "profiling" in an attempt to avoid causing an offence under the terms of the Act. However, by that very attempt to avoid causing an offence under one Act they are running a huge risk of committing an offence under another; namely, legislation dealing with racial equality.

I have to say that I am most grateful to my noble friend the Minister, who gave me some time a few weeks ago and listened to my explanations regarding the background to my concerns. At our meeting with officials, I was able to expose much of the detail of certain cases; and, indeed, I had a most sympathetic hearing. The purpose of the Immigration (Carriers' Liability) Act was to reduce the number of passengers arriving in the UK with no proper documentation, indicating in the great majority of cases that they had no right to be here. The airlines and ferry companies had to tighten up their procedures and accept that, if they make an error, they have to face the consequences in terms of fines or charges for detention.

I personally feel that that is harsh. Let us just imagine the stress put upon check-in staff who have to process upwards of 200 passengers in 20 minutes or so. During the period of each process they have to ensure that tickets and passports are valid and that they meet the seat requirements of those individual passengers. Australia has one stamp and one visa; the United Kingdom has something like 17 different stamps and forms of visa. Coping with passports in Arabic, Chinese, Nigerian, Sri Lankan and so on leads to a huge number of permutations. Six seconds per passenger does not give much time to do all that.

In order to cope with the complexity, British Airways alone has a dedicated department of five full-time staff whose responsibility is to train check-in staff in 80 countries on how to detect forged passports and visas. It is a complex undertaking made even more complex by the fact that in many cases the staff in those countries do not belong to British Airways, they are staff who work for a local monopoly or the handling agency and who do not have the same incentive to ensure that all is correct. This activity alone costs British Airways some half a million pounds per annum. On that basis, the total costs for all airlines and ferry operators bringing passengers to this country could amount to a significant sum.

My amendment addresses immigration expectations under certain very specific circumstances when it actually allows an incorrectly documented passenger to enter the United Kingdom by granting what is called leave to enter or exceptional leave to enter. This normally occurs when incorrect documentation is acknowledged not to be a wilful act of deception. The passenger is in effect given the benefit of the doubt. Under these circumstances, I submit that the carrier ought also to be given the same benefit of the doubt resulting in exemption from the fine of £2,000. At Second Reading I described the case of the mother with the new-born infant who had omitted to get the new-born infant registered on her passport. It was a passport which, incidentally, was utterly correct in very other respect. The mother and infant together were granted leave to enter but the carrier was fined £2,000. Laudable common sense and compassion were extended to the mother and infant, but not to the carrier.

A similar situation arose again with an airline where a mother with four children on her passport but not on her visa arrived in the United Kingdom. Again, of course, the children were granted leave to enter, but on this occasion it cost the airline £8,000. In another case, a former diplomat arrived from America with a visa which had expired. Being known as a reputable person, of course he was granted leave to enter, but the airline again had a £2,000 fine. I have made the point before but it is one worth repeating that, while UK immigration on such occasions shows laudable common sense and compassion towards the passenger, that is not extended to the carrier. The only person to benefit is the passenger who caused the problem in the first place.

Carriers do not know how many such cases occur, but an examination of the statistics suggests that in 1994–95 a total of 2,742 passengers arrived without a visa, or with a visa that had expired, but were subsequently permitted to stay. That total represents more than a quarter of the total number of inadequately documented arrivals in the United Kingdom that year. Removing those passengers from the equation would, of course, relieve carriers of a sizeable burden, but it would also reduce the vast amount of paperwork by the immigration service that each case involves.

One of the major concerns raised in the debate on the Asylum and Immigration Bill has been the requirement for additional resources to speed up applications for asylum. If my amendment is accepted, it would certainly free up resources which could then be channelled into helping genuine asylum seekers.

Just as an aside, in Germany—a country so often held to be the example of best practice—the immigration authorities do not fine carriers for breaches of this kind, provided they have made best efforts to prevent their occurrence. Similarly, Canada adopts the German practice. This amendment seeks to put us on a similar footing and I submit that it is logical and fair. I beg to move.

Earl Russell

We have been dealing all day so far with injustices to the weak and helpless. We are now dealing with an injustice to the rich and powerful, but that does not make it any less of an injustice. Justice is proverbially blind and an injustice to one person is just as much an injustice as an injustice to another. It is in that spirit that the Committee should consider the amendment, which seems to me to offer a serious case.

I agree that it is an improper privatisation, in effect, of government responsibility by handing responsibility for the quite important job of checking some technical papers to a body which is not part of the public service, whose objectives are different and which can get its staff to do it only by an exhaustive process of training which is not part of their normal work.

I remember one case referred to in 1991 when we discussed the issue previously. My noble friend Lord Harris of Greenwich states that it was not quoted by him. It concerns a flight from Toronto to Copenhagen. It touched down at Glasgow and was prevented from going on by bad weather. The airline very properly decided that, since it could not fly its passengers further that day, it would get them a hotel overnight in Glasgow and fly them on the next day when the weather was better. It was made to pay the fine for each passenger that it landed. That is slap within the purpose of the amendment. Those passengers were given leave to enter; they went on the next day; and they did no possible harm to the United Kingdom. What really sticks in my gullet about that case is that the imposition of the fine was an incentive to be neglectful of air safety. I am most grateful to the airline that it did not succumb, but it should not have been put under that temptation.

I understand that this situation is costing British Airways £2.5 million a year. It is a considerable sum of money which begins to approach the character of taxation. I do not know by what authority that taxation is raised. It is taxation for things which are not under British Airways' control and not morally, legally or otherwise its responsibility.

Let us take the example of the case put forward by Singapore Airlines. A lady, Mrs. J. Mbabazi, was flying from Singapore to Abu Dhabi. Her flight was delayed, so she got on a flight to London which had a connecting flight. It was expected that she would not go outside the airport area. However, entirely unforeseen by the airline, she decided to land herself in London and spend the night at a hotel because she was tired. That is a perfectly intelligible decision and not in any way the airline's responsibility. But the airline was fined for it.

Airlines are made to pay for any so-called mistake, but they are not given any financial support for doing the Government's work for them. That provides a contrast with the procedure under the Education (Student Loans) Act 1990 when a similar piece of government administrative work was offloaded on to the universities. I was glad—I welcomed it warmly at the time—that the Government agreed to pay the universities for the work they did for them. If the Government must insist on carriers' liability, I do not see why they should not apply the same principle here.

We have been debating much this evening on the third country removal in which people are shuttled to and fro between airlines. That is done at the airlines' expense. When the noble Baroness turned down the amendment asking for the third country to agree to the removal before the person was removed, she was unloading a great expense on the airlines for something that was no responsibility of theirs.

Finally I wish to ask the noble Baroness this question. I shall return to the issue if we do not receive an answer tonight. Clause 5(1)(b) makes it an offence to assist an asylum seeker—an offence to assist someone in doing what is perfectly lawful. Does that clause create a new carriers' liability? I think we should be told.

Lord Brabazon of Tara

I have my name to this amendment. I support my noble friend's remarks. My noble friend the Minister will be aware that in the past I have been somewhat critical of the operation of the Immigration (Carriers' Liability) Act. As has been said, it is not the job of airline or ferry employees to act as unpaid immigration officials. I know that both the airlines and the ferry companies have spent large sums of money in training their people to enforce the provisions of the Act as best they can. It therefore seems exceptionally unfair if, following the entry of someone who is given leave or exceptional leave to enter this country by immigration officials, the airline or ferry company should still be liable to pay the £2,000 fine. It is as if you won a case in the courts and, even though you won the case, you were still expected to pay the costs of the prosecution. That is not fair. My principal argument on this issue is one of fairness.

The noble Earl, Lord Russell, quoted a case from Singapore Airlines. If he had not done so, I should have quoted it myself. That person came into this country, previously having no intention of staying here. Finding that she had a 12-hour wait in transit at Heathrow, she decided to come into London. I have no doubt that, having done so, she spent some money, which was all to the good of the economy of London. She then returned to Heathrow and departed on her way to Entebbe, where she originally intended to go. The immigration officials had given her leave to enter this country; yet the airline was still fined £2,000. That is just not fair.

I continue on the case of Singapore Airlines only to say that, under the regulations, last year (1995) Singapore Airlines was involved in 42 cases under the Immigration (Carriers' Liability) Act. In 31 of those the fines were waived following often protracted appeal. In three-quarters of the cases the fines were waived. I suppose that could be used as argument either way. In my opinion it means that current legislation is badly drafted and needs to be brought into order. If someone can be charged 42 times and let off 31, there must be something wrong with the way the law is being operated.

My noble friend referred briefly to the ferry industry. I know that it feels very strongly about this issue, too. There is a slight difference between the ferry industry and the airline industry. It costs probably only £20 for a foot passenger to get across from the Continent to here on a ferry. Therefore the fine of £2,000 is 100 times the basic fare. At least the airlines probably receive a little more from their passengers to offset against the fine than the ferry companies do. Furthermore, the ferry companies have the problem of people hiding themselves in the back of trucks, in containers and so on, which at least the airlines do not have.

The ferry companies feel particularly aggrieved; and I ask my noble friend to address this issue. Why is the Channel Tunnel, which is in direct competition with the ferries across the Straits of Dover, exempted from all these fines when the ferry companies operating exactly the same route are liable to pay £2,000 every time they bring an illegal immigrant across? I hope my noble friend will examine these issues with care.

This amendment is not designed to upset the entire Immigration (Carriers' Liability) Act. It is designed only to address one particular anomaly; namely, of those people who, after they arrive here, are allowed by the immigration authorities to stay; yet even after they are allowed to stay the poor old carrier, whether a ferry company or an airline, is still fined £2,000. That does not seem fair.

Lord Mountevans

I too want to support the amendment of my noble friend Lady O'Cathain. I dare say that it will come as no surprise to those who are aware of the implications of the carriers' liability legislation. On the other hand, it may surprise the Committee to hear that I shall not raise the case of the Gurkha band because I believe that it is famous enough already.

It might be asked why carriers have a liability in the context of immigration control. After all, the airlines and the shipping companies—whose case would, I am sure, have been well advanced by the noble Lord, Lord Greenway, had he not been prevented by a bereavement from being here this evening—pay for the provision of immigration services at our airports and ports, as do the taxpayers; in other words, at the frontiers.

But things are not so simple as they seem. It seems to me that in this country we operate a three-tier system of frontier control. The noble and learned Lord, Lord Templeman, who is not in his place, recently chaired a working party on open frontiers in the European Union. His working party summarises the Government's policy as being threefold: pre-entry, which we are discussing tonight; entry; and post-entry. Post-entry—internal follow-up checks—do not concern me tonight. Entry—the checks at ports and airports—need not delay me. After all, as I explained, they are already paid for by the shipping companies and airlines and by the taxpayer. But then there is the pre-entry element. Put simply—it has been well explained already this evening—the carriers pay for a job to be done and are then penalised to the tune of £2,000 per passenger for not doing that job properly at the passenger's point of embarkation. That is a £2,000 a throw penalty.

British Airways staff, PRO staff or even the hired staff (hired, I might add, to take care of customers and not to act as the first line of British immigration control) do not show graduate level skills in the different types of basic travel document currently in general circulation. Let me name a few. There is the British passport—yes, one would expect them to cope with that. The status of a serviceman travelling on a military ID card is somewhat more complex. The seaman's book or certificate when being used in a TWOV, as the trade knows it (Transit without Visa), is okay; but if it is a matter of entering the UK to join a ship, visas may be required, depending upon the seaman's status. As for the Kinderausweis issued by the Germans and assorted kinds of refugee documents, let me casually let them pass.

But the check-in staff cannot be so casual. One slip and the carrier is prone to a £2,000 penalty. Having dealt with the passport and/or document, the check-in staff can find themselves faced with at least five different kinds of British visa. Go further and there may be nine or more endorsements entered on the passport on earlier occasions, some still valid and some very much less so.

So to where is the check-in person to turn? With skill, he or she can decide that real documents are in order. But fakes are another matter. After all, 55 years ago our POWs in Germany could produce relevant and convincing documents using only the facilities available in the camps in which they found themselves. How much easier is it to do so now using the technology that is available?

I have concentrated on carriers' liability and the insurmountable problems that such legislation poses to the carriers concerned, British and foreign. I appreciate that the Immigration Service has made progress in being available to train the carrier staff concerned. But despite that, the carriers incur considerable additional costs in staff training and in seeking to prevent offences. The ferry companies alone incur penalties now approaching £1 million a year, or they are misjudging 50,000 passengers' documents. They and their airline colleagues are then penalised for badly performing a job which I believe Immigration is already paid to do.

I do not believe that any of us would expect an immigration officer to fly a 'plane or captain a ship. No more would I expect check-in staff to act as immigration officers. I am not aware of the former happening; the latter happens, I fear, all too often.

I welcome my noble friend's amendment. I conclude by saying that the benefit of the doubt, if extended to the passenger, should also be extended to the carrier. I am convinced that in almost every case the carrier's staff or agents have surely done their best.

12.30 a.m.

Lord Hacking

I should like shortly to support my noble friend's amendment. I say "shortly" because it is a matter of regret—though I understand the circumstances of the relisting in the Marshalled List—that my noble friend the Minister is having to deal with this difficult matter at half-past midnight.

It has been drawn to the Committee's attention that the provisions of the Immigration (Carriers' Liability) Act place particularly onerous burdens on carriers. The noble Earl, Lord Russell, talked about taxation without representation. Figures have been given about the cost to British Airways. I have a figure that the cost in the amount of fines to all carriers is somewhere in the region of £5.5 million per annum. If that is not taxation without representation, what is?

It must be acknowledged that the United Kingdom is not alone in asking airline officials to act as immigration officers. Those Members of the Committee who have been to the United States of America know that, when the visa was a compulsory requirement for entering that country, airline officials at 'check in' had to look at one's passport to see whether one had a valid visa. Again, when we leave the United States of America, we do not pass immigration officials; we hand in our passport, and exit permit contained in it, to the airline carrier. This permit is removed from the passport by the airline and not by immigration officers. We are therefore not alone in this.

My objection to the provisions and my support for my noble friend rests in this position. It is unacceptable that airlines should be punished when the offences themselves are treated as technical offences. That is the point. It is an unfair burden and, as the noble Earl, Lord Russell, said: an injustice is an injustice to the big and the powerful as it is also an injustice to the weak and the helpless.

Lord Clinton-Davis

At the beginning of my short remarks I declare an interest as the president of the British Airline Pilots Association, which supports the airlines in the representations that they have made to the Government in this regard. I am pleased too that the Chamber of Shipping, to which the noble Lord, Lord Brabazon, referred, is also supporting the representations. He is right to point out that there is a serious anomaly because the Channel Tunnel services are unaffected, whereas the airlines and the shipping industry are affected by the Immigration (Carriers' Liability) Act.

What I find intriguing about this matter—I agree with the view—is that it is an unfair situation. The noble Lord repeated that several times. He said that it was not fair. It was not fair. What seems to have passed him by is the unfairness of certain other elements of the Bill. They seem to have passed the noble Baroness by. The noble Lord, Lord Hacking, is unconcerned about those other matters. It is a Bill that is replete with unfairness and an administrative system that has gone berserk.

I too am deeply concerned about injustice but I am not selective about it. I want to assure the noble Baroness that, seething with indignation over this issue—as are a number of her noble friends—she may have every confidence that we on these Benches will join her in the Lobby when she decides this evening to vote against the Government. That is the test. One can seethe with indignation as much as one likes; but that is the test. I wonder how far the noble Baroness is prepared to push this matter.

Baroness O'Cathain

I am grateful to the noble Lord for allowing me to rise at this point. First, I should like the noble Lord to know that I am not seething with indignation. I am drawing attention to something that is unjust and unfair, but I am certainly not seething with indignation. I have never seethed with indignation in your Lordships' Chamber. It is not a pretty sight and I hope I never do.

Secondly, the noble Lord, Lord Clinton-Davis—for whom I have a great deal of admiration and respect—is quite unfair (another case of "unfairness") to say to me that I am selective in looking at things that are unfair and unjust. It is up to each person to look at every item in the Bill and make a judgment. I have done that. The fact that I have not jumped up and down to indicate seething indignation is because I have not seen a case for it. I believe deeply that the Bill is right in principle. That is not because I sit on these Benches but because I believe that for too long this country has allowed economic migrants to pretend that they are political asylum seekers. This Bill seeks among other things to turn that one round.

Lord Clinton-Davis

I was interested to hear the Second Reading speech of the noble Baroness in her brief intervention. She said that the Bill is right in principle. That is her view. She is entitled to that opinion. I wonder whether she agrees that it is right in detail as well. Is she wholly happy about these matters? Unfairness and injustice are the principles that guide her in relation to this matter. I say that she is selective. That is my opinion. I am entitled to express it as well.

What the noble Baroness did not say in that very long intervention is what she intends to do about this injustice and unfairness. Will she remain in her seat tonight if the Government are not prepared to give way?

Baroness O' Cathain

What I intend to do tonight is to listen to what my noble friend the Minister says. When I moved the amendment I indicated that I had already spent some time with the Minister and with officials and that I had been greatly heartened by their understanding of the basic issues. I am looking forward to hearing what my noble friend the Minister has to say. I shall then make a judgment on what I shall do over the remaining stages of the Bill. With all due respect, I shall not be guided by the noble Lord, Lord Clinton-Davis.

Lord Clinton-Davis

It would be a great wonder if the noble Baroness were to be guided by anything I had to say. I would begin to question my own judgment if that were the case. At the end of the day we shall of course listen very carefully to what the Minister has to say—that is critical—but what will happen if the Minister does not accede to the noble Baroness's views?

I shall listen with interest, too. Perhaps a critical test will be deferred tonight. Perhaps it will arise at Report stage or at an even later stage of the Bill. Even if the noble Baroness is not seething with indignation, she is deeply concerned about the injustice of the matter, and if she does not get the right response I imagine that, with her due diligence, she will pursue the Government into the Division Lobbies on this matter. But that remains to be seen. I believe it is an injustice. I believe that there are anomalies which need to be cured. I support the noble Baroness in her limited objectives tonight.

Lord Brabazon of Tara

The noble Lord has said that those of us who have our names to the amendment should press it in the Division Lobbies if we do not get a satisfactory reply from the Minister. Can I take it then that every Opposition amendment from now on, if it does not get a satisfactory reply from the Minister, will be pressed in the Division Lobbies? If so, I suppose I had better set aside a little more time for the Bill.

Lord Clinton-Davis

The noble Lord is right; he should set aside a good deal more time. We shall exercise our discretion as to where the most injustice and unfairness arises. And because he is concerned about those issues, we look forward to seeing him in the Division Lobby with us.

Lord Harris of Greenwich

Perhaps I may say a few words on this important question. As the noble Baroness, Lady O' Cathain, will be aware, if she presses her amendment tonight she will win the Division. Therefore, if she withdraws the amendment, we shall draw our own conclusions as to why she has taken that action.

I wish to revisit a debate which we have had in the past on this question. Some years ago I moved a Prayer to annul a regulation which increased the fine under the Act from £1,000 to £2,000, and I received a substantial amount of support from noble Lords on the other side of the House. On that occasion we discussed a number of cases. Perhaps I may have the attention of the noble Baroness, Lady Blatch, because I am hoping that she will respond in a moment if she is good enough to pay attention to what I am saying.

On that occasion I drew attention to one particular case affecting a ferry company. A Nepalese military band had lawfully entered this country on the basis of visa which they had a right to, and there was no difficulty about that. But they made the grave miscalculation of leaving this country to play Nepalese military music in Germany. They returned to this country in order to fly back to Nepal from London airport. They found that because they had not got a double entry visa, the ferry company was fined a very substantial sum of money.

On that occasion I did not secure any coherent explanation as to how that could conceivably be justified. What British interest was possibly served by fining a Nepalese military band who simply wanted to go home from London airport? The fact of the matter was that the noble Lord, Lord Waddington, who was a former Home Secretary and then Leader of the House, decided to reply to the debate. He gave a number of assurances that, unhappily, did not lead to any improvement in the situation. As this amendment will clearly not be pressed tonight by the noble Baroness, Lady O'Cathain—if I may speak on her behalf—I hope that between now and the Report stage of the Bill the noble Baroness, Lady Blatch, will look into this question.

I can understand the problems as regards the department. There is a serious difficulty here and I do not make light of the administrative problems as far as the Immigration Service is concerned. Nevertheless, I cannot believe that it is sensible to proceed in the way that we have.

There was another case of an Icelandic baby who was brought to this country for urgent medical treatment. The airline was fined. I repeat that there is genuine difficulty as far as the immigration department is concerned. At some stage there has to be a substantial review of these procedures, because I cannot believe that proceeding in this way makes any sense whatever.

Lord Hylton

I have been opposed to the principle of carriers' liability ever since the Act was introduced in 1986 or 1987. I believe I have joined in resisting it on subsequent occasions when it has been debated in your Lordships' House. The noble Baroness, Lady O'Cathain, has tonight helpfully explained to us the compliance costs which are imposed on the companies in coping with this legislation. Her noble friend on the same Bench gave us some kind of order of magnitude of the amount that is raised by the charges in each year.

In the nature of economic life, these things are passed on to us innocent customers by way of additional fares. That is what we object to very strongly. It is a modest amendment because it deals only with the technicalities of the charges imposed on those who are subsequently allowed to enter or stay in the United Kingdom. I hope that the Minister will pay attention to the extraordinary weight and strength of opinion which have been expressed tonight from her own Benches, including the opinion of the noble Lord, Lord Brabazon of Tara, a former Minister in the Department of Transport.

The Earl of Kinnoull

I briefly add my support to my noble friend. I believe that she made a most powerful case. I congratulate the noble Lord, Lord Clinton-Davis, on his skill in producing hilarity at 12.45 in the morning. He loosened off another volley of shot which, sadly, missed its target.

The amendment does one simple thing. It seeks to stop a fine being imposed on an airline if the participant is accepted, either temporarily or permanently, by immigration.

One issue has not yet been mentioned. I refer to the fact that there has been quite a high success rate of appeals against the fines—of about 40 per cent., I think. I hope that my noble friend will take that into account because it clogs up the courts unnecessarily and for that reason—let alone the injustice, about which all noble Lords have spoken—I hope that my noble friend will respond to the amendment with her usual sympathy and courtesy. That will add to the skilful way in which she has steered the Bill through the Committee tonight, despite the landmines which have been floating around during the past hour.

12.45 a.m.

Baroness Blatch

The noble Lord, Lord Clinton-Davis, has not been with us for most of the Bill's progress although he has joined us this evening and enlivened our proceedings somewhat. However, perhaps I may advise him that we have voted three times today and that his colleagues have protested a great deal on many amendments—amendments about which they were showing some signs of indignation, about which they were concerned and about which they writhed in agony and great anxiety in relation to injustices which they claimed—but they chose not to press those amendments. Indeed, as I said, even on all the amendments that we have discussed today, we have voted only three times.

I thought that the noble Lord was quite offensive to my noble friend. His outrage was pompous and childish. In that, he was joined by the noble Lord, Lord Harris of Greenwich, whose colleagues have protested greatly today, but have not challenged—

Lord Clinton-Davis: Childish?

Baroness Blatch

That is a word to have fallen from the lips of many other colleagues in respect of the noble Lord on such occasions.

Perhaps I may answer the question asked by the noble Earl, Lord Russell, about Clause 5(1)(b). If the airline knowingly colluded, assisted or facilitated—I think that that is the legal jargon—an illegal immigrant or entry into this country, it would be caught by Clause 5(1)(b), but we are not talking about airlines knowingly carrying passengers for the purpose of illegal entry. Indeed, even with passengers who travel with or without documentation which is in order, the airlines are still not aware that, on arrival, they will seek entry into the country—

Earl Russell

I am grateful to the Minister and understand and accept the point that she is making, but the point about Clause 5(1)(b) is that it is not confined to illegal entry or deception; it applies to any asylum seeker. Does that mean that any airline which flies any asylum seeker will suffer carriers' liability?

Baroness Blatch

Clause 5(1)(b) relates to the entry into the United Kingdom of anyone who is known to be an asylum claimant. The provisions relate to illegal entry and harbouring. Clause 5(1), which amends subsection (1) of Section 25 of the 1971 Act, relates to assisting illegal entry, and paragraphs (b) and (c)relate to illegal entry and to illegal harbouring after entry.

Lord Harris of Greenwich

If I may be impertinent, I suggested that the Minister should follow what I was saying, but she was having an interesting conversation with her noble friend at the time. I was not referring to an airline; I was referring to a ferry company that brought into this country a Nepalese military band which had lawfully entered this country, gone to play Nepalese military music in Germany, and returned to this country only to catch a plane from Heathrow. A fine was imposed. Why? What British interest was served? They were not asylum seekers. They were not illegal immigrants. When the Minister mentions illegal immigrants, her voice trembles with indignation. But we are not talking about that; we are talking about a uniformed military band. How can it conceivably be in the interests of this country to fine the ferry company in such circumstances?

Baroness Blatch

The noble Lord is becoming overexcited. I am not referring to his point but to a point raised by the noble Earl, Lord Russell. He asked me specifically about Clause (5)(1)(b). The airline would not be caught by Clause 5(1)(b). I turn to the point raised by the noble Lord, Lord Harris, who appears to be rather excitable at the moment. The noble Lord is rather extravagant with his body language. Given that carriers' liability is tied to documentation which is not in order, is the noble Lord suggesting that all the documentation in that case was in order and therefore the carrier's liability levied was inappropriate?

Lord Harris of Greenwich

If the noble Baroness refers to Hansard tomorrow she will see that the first time I spoke to this question about 20 minutes ago I explained the matter in some detail. If the noble Baroness cares to write to me—which may be a simpler way of dealing with the problem—perhaps she can explain how any British national interest was served by fining a ferry company in the circumstances that I described.

Baroness Blatch

If it occurred under these provisions and passengers were carried with incorrect documentation it would be reason to consider the carrier liable. But my understanding is that the noble Lord had extensive correspondence on the issue years ago when he first raised the point. If there is anything more to say over and above what I have said in response to him, I shall write to the noble Lord. It is my custom to do just that in relation to points not properly replied to in debate.

The Immigration (Carriers' Liability) Act 1987 places an obligation on air and sea carriers to ensure that all passengers brought to the UK hold valid passports or acceptable travel documents and, where necessary, are in possession of valid visas. Given all the examples that have been recited round the Chamber, I do not know whether the people referred to—the noble Lord, Lord Harris, has not answered my question—were carrying documentation that was in order. This measure was introduced to stem the flow of inadequately documented passengers who were being brought to the UK in the late 1980s. It remains an essential element in our immigration control. It acts as a major deterrent, both to passengers who know that they require proper documentation before travelling and to carriers who need to consider their commercial interests against their legal responsibilities.

While the costs may be unwelcome to many carriers, the concept of requiring carriers to ensure that passengers are correctly documented for their journey is not unique to the UK. It is underpinned by Annex 9 to the Chicago Convention which states that carriers should seek to ensure that passengers have the requisite documentation when they embark. Thirty-nine countries have similar legislation, including Canada, Australia, Germany, France, Belgium and Denmark. The basis of charging is similar, but each country has naturally adopted its own system of application. I have some sympathy with my noble friend, of which he is aware from discussions that we have had within the department, in that anything we can do to facilitate the ease with which that duty is carried out is to be welcomed. I can assure my noble friend that we shall continue to do what we can to make it a smoother operation.

Since the Act's introduction on 5th March 1987 about £91.5 million has been levied in charges on passengers. However, a charge is imposed as a matter of strict liability only if a passenger requires leave to enter the UK. There is no liability if leave to enter is not required: for example, in respect of EU or EEA nationals. Additionally, where liability exists it is based solely on the question of the inadequacy of the passenger's documentation. There is no linkage between that and whether or not a passenger is granted leave to enter. That is a matter for the immigration officer who will make a judgment based on all of the circumstances available to him. It is quite a separate matter from the responsibility of the carrier.

The responsibility for deciding whether or not to carry a passenger rests with the carrying company in every case. If a carrier knowingly carries a passenger whose documentation is wrong or inadequate then it seems only right that it should be liable to be charged accordingly.

The 1987 Act and the Immigration Act 1971 are entirely separate. There is no requirement that a carrier should additionally satisfy itself that a passenger will be acceptable to the UK authorities on arrival. That judgment can be exercised only by the immigration officer. The carrier cannot, and should not, be expected to anticipate that decision. That is not to say that the Government are not prepared to waive charges where we believe that it is right to do so. Where a charge has been incurred by a carrier in respect of a passenger who is recognised as a refugee under the convention and protocol and any dependants, it is the Government's policy to refund the charge if it has already been paid, or to waive it if it has not been paid. We believe that that seems fair and just to all parties.

Lord Avebury

What about the person granted exceptional leave to remain? Is it waived then?

Baroness Blatch

I only said what I said, if the noble Lord is attributing to me things that I have not said. I have said it applies where the person is recognised as a refugee under the convention and protocol. That does not include exceptional leave to remain. The noble Lord is putting words into my mouth.

Lord Avebury

I only asked a question. I am not putting any words into the Minister's mouth.

Baroness Blatch

I have always understood that it is improper to conduct any discussion while someone is standing at the Dispatch Box, and certainly from a sedentary position.

Lord Avebury


Baroness Blatch

The noble Lord spoke before he stood to ask me to give way.

I know that my noble friend is concerned also that a charge could be levied when the passenger is admitted by an immigration officer and subsequently detained and removed as an illegal entrant. Such circumstances are rare, although liability would exist under the 1987 Act and the Immigration Act 1971. I am sure that we would want to be practical. If the documentation was good enough to have deceived an immigration officer, it would be unfair to have expected airline staff to have picked it up.

Other than that, the only pertinent issue is that of passengers' documentation. No matter what may be the eventual decision of the immigration officer under the Immigration Act, the Government cannot accept that there can be any reason to excuse the carrier for knowingly carrying an inadequately documented passenger. We therefore cannot support the amendment.

I shall refer to particular points. As I have already said to the noble Earl, Lord Russell, Clause 5(1)(b) does not create a new carrier liability, because airlines would have no reason to know that a properly documented passenger intended to claim asylum.

I find the point raised by my noble friend Lord Brabazon fascinating. I should like to think more about it. As I understand it, the Channel Tunnel is exempt because the immigration takes place on the train and not after the passengers have alighted, as happens with the ferries. I do not know, but my feeling is that the figures used by my noble friend show that charges can be waived in appropriate circumstances. I have referred to that.

The noble Earl, Lord Russell, referred to offering assistance to the airlines. First, it would be inappropriate for the Government to offer financial assistance, but the immigration service provides extensive training. Up to the end of 1994, 284 training visits had been made to 82 countries since the Act came into force. That is a practical way of helping the airlines. We shall continue, as I have said to my noble friend, to assist in ensuring that this is the smoothest operation possible.

Lord Harris of Greenwich

Perhaps I may say to the Minister before she concludes her remarks that the body language of the noble Lord, Lord Brabazon of Tara, is admirable, if I may speak on his behalf. I am deeply neutral on this question, but I suspect that he may be as puzzled as I am to hear the Minister's response on the question of the cross-Channel train. Once someone gets on that train, the train will not stop and deposit that person in France if he or she does not have the appropriate travel documents. Therefore, they will undoubtedly arrive in this country. However, the company responsible for running the trains is not charged under this Bill. How can that possibly be justified? I am puzzled. Perhaps the Minister would like to explain.

1 a.m.

Baroness Blatch

If the noble Lord had been paying attention to what I said he would have heard me agree that I was interested in the question myself. I said to my noble friend that I would like to reflect more on the question that he posed. I simply gave him the answer of which I had been advised for the purpose of tonight's debate, but I am just as puzzled as the noble Lord. I will take that matter away and think about it.

Earl Russell

I was a little intrigued by what the Minister said about Clause 5(1)(b). Naturally, I am relieved if it does not create a new carriers' liability, but I was a little puzzled by the ground that the Minister gave: that the airline should have no ground for thinking that a properly documented passenger intended to claim asylum.

For the purpose of argument, let us suppose that the passenger tells the cabin staff that he wishes to claim asylum and asks how to set about it. I could imagine that that could happen. Does that make the airline guilty of an offence? If so, why should it be an offence to assist someone to do what is in itself perfectly legal?

I was also taken aback by her reply to my noble friend, who asked on the matter of the Nepalese military band what conceivable British interest could be served. The Minister simply said that the documents were not in order and imagined that that was a complete and sufficient answer. I was completely taken aback until suddenly the penny dropped; this is where the Home Office discovered the concept of the mandatory minimum sentence. The Minister sees that it stirs up a hornets' nest.

Baroness Blatch

In response to the example of the noble Lord, Lord Harris, I asked him whether the documentation of the members of the band was in order and he was unable to answer that. The interest as regards the British, and the interest under the measures with which we are dealing tonight, refer to people arriving in this country with documentation that is not in order.

I do not know whether they were foreigners landing in Britain with documentation that was or was not in order. I have asked the question of the noble Lord, Lord Hams, and he simply has not answered it.

Lord Harris of Greenwich

I am puzzled that the Minister should raise that rather bad point because in my first intervention on this matter I explained the facts. Unhappily, the Minister was engaged in an agreeable conversation with her noble friend Lord Goschen and therefore did not listen to what I was saying. I pointed out that they had a single entry visa to the United Kingdom, which I concede. After that they had gone to play Nepalese military music in Germany. They had returned to this country in order to board a plane at Heathrow to return to Nepal. The carrier, the ferry operator, had to pay a fine for each member of the band. My question was simple; what British national interest was served by that?

Baroness Blatch

I hope that this is the last time I have to rise to deal with this matter. The carrier is liable only if the documentation is not in order. If the documentation is in order there is no liability on the carrier.

Baroness O'Cathain

I am grateful to the eight Members of the Committee who spoke in support of my amendment. I noted that no one spoke against it except my noble friend the Minister. I tabled the amendment because, as I said, I have always conceded that if the documentation is not in order, that is the carrier's liability. I am specifically worried about cases where the documentation has been proved not to be in order, yet the immigration authorities say that people can stay. I believe that there is an injustice there.

I should like to say also to the Minister that of course the legislation is not unique to the United Kingdom. My noble friend gave Canada and Germany as examples. But, in turn, I also referred to those countries because I said that, in cases exactly as those I have just described where the documentation was not in order so that, therefore, technically there should have been a fine, the immigration authorities gave leave to remain because there was obviously no wilful act. Germany and Canada do not impose the stringent conditions which we impose in this country.

There is still a measure of incomprehension between us on this matter. This is a relatively early stage of the Bill. I shall not rise to the bait which was so nobly spun at me by the noble Lord, Lord Clinton-Davis, and others. I shall not divide the Committee, but I shall return to this question. In the circumstances, I think that it is about time that I actually withdrew the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Obtaining leave by deception]:

Baroness Williams of Crosby moved Amendment No. 52: Page 4, line 23, leave out ("by means which include") and insert ("knowingly by material").

The noble Baroness said: I suspect that this may be the last brief debate this evening but it is a matter of considerable concern. Clause 4 is a small but extremely disturbing clause because it introduces into the terms of the Immigration Act 1971 new wording of a very unclear kind. The Act states in Section 24(1): A person who is not patrial shall be guilty of an offence punishable on summary conviction with a fine of not more than £200 or with imprisonment for not more than six months, or with both, in any of the following cases—if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave".

I want to underline the words: he knowingly enters the United Kingdom".

Since a criminal offence is involved, and, indeed, the possibility of imprisonment, it is important that this Act refers to the fact that the action is taken "knowingly". Under the proposals in the new legislation, the word "knowingly" is dropped and in its place we have the vague phrase that there are: means which include deception by him".

That phrase does not relate the deception to the person concerned; does not make it clear what is the nature of the deception; does not say whether the deception is material to the person receiving leave to enter the United Kingdom; and does not indicate whether that deception is knowingly undertaken. That seems to me to be extraordinarily unsatisfactory drafting for legislation emerging from this Chamber or the other place.

Indeed, the wording and the meaning of "deception" is, to say the least of it, disturbingly bald. Given that in Clause 5—to which I shall refer only because we are not debating it now—this offence extends to those who may aid or abet that extremely unclear definition of what is wrong in Clause 4, the net widens and widens to bring in the possibility of a criminal offence for a very large number of people, both in this country and outside it—people in this country who in many cases for the best reasons in the world are attempting to help somebody with a legitimate claim to be an asylum seeker in this country.

What also troubles me greatly is that there are many, many examples of the unknowing use of deception. It is made more disturbing by the fact that, if my understanding is right, later this year the Home Office intends to set out extremely detailed ways in which those who seek to remain here or to extend their leave to enter and remain here will be obliged to fill in very detailed forms in order to do so. Those detailed forms will, I understand, require documents to be attached to the request and such documents will have to be in order.

The bureaucratic obligations that are being mounted for those who seek asylum in this country are now becoming so great that it is very unlikely that almost any of us could actually satisfy them without in some way or other making a mistake. Clearly that unintentional mistake might be captured by the word "deception". I hope that I am wrong. It may be that the Minister will be able to assure me that I am wrong and that the word "deception" will indeed be interpreted in very different ways.

However, what I genuinely do not understand is why the Government should replace the clear wording of the 1971 Act in an area that, I repeat, extends to criminal offences and which, therefore, should be made very clear, with the unclear wording in the current legislation which appears to me to be so vague in its possible interpretation that it could in fact mean that many perfectly honest men and women may be caught by virtue of the word "deception" when they had no intention of knowingly using deception; and indeed, no intention of seeking to remain by the use of deception. Even at this very late hour, I very much hope that the noble Baroness will be able to assure me that my interpretation of Clause 4 is simply wrong. I beg to move.

Lord Clinton-Davis

I rise simply to apologise deeply to the Minister whom I continue to hold in high esteem and also to express my support for the amendment just moved by the noble Baroness. It is indeed a most important issue.

Baroness Blatch

I hope that I shall be able to help the noble Baroness. From what she said, it appears that the amendment has been motivated by a desire to protect from prosecution for the new offence proposed in Clause 4 those who enter or remain by deception practised by a third party of which they themselves are ignorant.

Decided cases have established that a person who gains entry on the basis of deception practised by a third party may be removed as an illegal entrant. That will continue to be the case. However, it is not our intention that people who enter in such circumstances should be caught by the offence which would be created by Clause 4. For an offence to have been committed, the person who obtained leave to enter or remain would himself have to have practised deception. To have any effect, the deception would also have to have been material.

It is not the Government's intention to criminalise those who have unwittingly gained entry by deception. As currently drafted, we are satisfied that Clause 4 offers such people protection from prosecution. I hope that that explanation is helpful to the noble Baroness.

Baroness Williams of Crosby

I thank the Minister for that response. However, I feel that I must press the issue one step further. Perhaps the Minister could explain to me why the original use of the word "knowingly" in the 1971 Act could not be repeated in the 1996 legislation. I believe that its inclusion would clarify the use of the word "deception" and ensure that we did not have an interpretation so wide that not only might people be caught by it but, also, there could be considerable reasons for opening the door to blackmail directed at immigrants into this country and, indeed, at asylum seekers. I say that because the word "deception" in such terms is so broad and, therefore, one might be able to threaten people with revelations in that respect if we do not have a more precise wording in Clause 4.

Baroness Blatch

Again, I believe that the noble Baroness is introducing the notion of a third party who may well have colluded or collaborated in that respect; or, worse, exploited an entrant into the country. I am not able to explain the read-across to the 1971 Act to which the noble Baroness referred. However, I can say that those who unwittingly practise deception—in other words, those whose intention was not to be deceitful—are covered. Moreover, as I said, the third party would not be caught. I repeat, those who obtained leave to enter or remain would have had to practise deception and, for the provision to have any effect, the deception would have to be material. I shall check the point about the read-across to the 1971 Act and come back to the noble Baroness.

Baroness Williams of Crosby

I thank the Minister for that and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 53 to 55 not moved.]

Clause 4 agreed to.

Clause 5 [Assisting asylum claimants, and persons seeking to obtain leave by deception]:

Lord Clinton-Davis moved Amendment No. 56: Page 4, line 30, leave out ("or has reasonable cause for believing").

The noble Lord said: This will be the last amendment that we shall move this evening, but it is an important issue. I shall wish to read what the Minister says because the issue gives great concern to the legal profession, as I am sure she is aware. We all agree on the objective that the Government have set: to attack the racketeers. There are too many of them who exploit immigrants and asylum seekers, at great cost to the asylum seekers and great profit to themselves. When I was in another place, a large number of people in inner London exploited such people unmercifully.

However, the problem is that the drafting is so wide that it will also attack lawyers and organisations who seek to give genuine advice to asylum seekers. The solicitors' own professional rules are not as extensive as the clause. The Law Society believes that there is a real risk that the clause as drafted will undermine the solicitors' duty to act in the best interests of their clients. Solicitors are under a professional duty not to act on clients' instructions where they know that deception is involved. The suggested amendment to the clause that we propose will reflect that duty, without undermining the solicitor/client relationship.

It would be extremely difficult for any adviser to disprove that he or she had reasonable cause for believing that an application included deception. The amendment suggests that a more reasonable level of proof is to demonstrate that there was knowledge of deception.

There is another problem in that I do not believe that the provisos contained in Clause 5(2) will necessarily save the lawyer giving bona fide advice in circumstances along the lines I suggested. I hope that the Minister will reflect further on the matter. It is a reasonable amendment which in no way attacks the principle of the Bill which she holds so dear. I beg to move.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

I have to advise the Committee that if Amendment No. 56 is agreed to, I cannot call Amendment No. 57.

Baroness Blatch

The noble Lord announced that these are the last amendments. I assume that Amendments Nos. 58 and 61, which are directly related to this amendment, are not referred to here and will not be moved tonight.

Lord Clinton-Davis

No, they will not.

Baroness Blatch

This group of amendments seeks to establish a higher standard of proof than that which currently applies for the existing offences of facilitating the entry of an illegal entrant, and then seeks to apply that higher standard of proof to the new offence of facilitating for reward the entry of an asylum claimant and facilitating the acquisition of leave to remain by deception. By removing the words, or has reasonable cause for believing", completely from the wording of the offences or removing that phrase and instead inserting "believes", the amendments would provide the convenient and ready-made excuse of "I did not know". This would allow racketeers to plead innocence through ignorance and to proceed without prosecution, pocketing their ill-gotten gains on the way.

Raising the standard of proof required to secure a conviction is clearly inappropriate if we are serious about dealing with racketeers. We really must do something. I have not seen or heard anything which suggests that the standard of proof set out in the existing offence is disproportionately low or that it has led to the mounting of inappropriate prosecutions. Consequently I can see no justification for raising the standard of proof from that clearly established in the Immigration Act 1971. We need to be firm about this. The law needs to be robust, and the messages to the racketeers need to be unequivocal.

I am not clear why the Opposition wish to amend the new provisions and, in the amendments which will not be moved tonight, then seek to delete them. When we discuss Amendments Nos. 58 and 61—it will probably be on another day—we shall have the opportunity to consider in full why these new offences are necessary.

The Government have introduced into the Bill two new offences. Let us be clear about what they are: assisting illegal entry into the United Kingdom knowingly; and assisting by deception an illegal entrant to remain in the country. That is the evil trade that is being prosecuted by racketeers. It should not be allowed to flourish. Clause 5(1)(b) and (c), as set out in the Bill, are absolutely necessary. I have no hesitation whatsoever in asking the Committee to reject the amendment.

Earl Russell

Before the noble Lord replies, I wish for one important piece of clarification. If one of us should assist a person to come through the port on papers which do not show any intention to claim asylum, and he immediately claims asylum in the country, would we commit an offence in doing so?

Baroness Blatch

If the noble Earl does that for gain, the answer is, yes, he would have committed an offence.

Lord Clinton-Davis

I am disappointed by the Minister's reply, which leaves no room for doubt in her mind. I think that there is a great deal of room for doubt as to its effect on those who genuinely seek to give advice. I believe that the provision will act as a deterrent.

As I said earlier, I am with her about racketeers. I have no time for them. But solicitors are not required, indeed it is contrary to the rules of solicitors, to probe their client's honesty. I have been a solicitor for rather a long time—too long, some may say—but the fact is that there seems to be no reason in principle why an adviser who is misled by an unscrupulous client should have to pay for that client's lack of honesty.

There is a real problem here. The Minister should try to meet it. Will she say that she will reflect further on the representations made by the Law Society? The noble Baroness is under no obligation to say that she will amend the Bill in consequence, but I should like her to say that she will reflect further on those representations. They are made in good faith by a professional organisation which has a clear interest to ensure that no injustice is done to members of the profession: that they are not held at risk of prosecution for a situation in which they would normally be doing that which they are required to do. If they have raised these issues, they should be taken seriously. I invite the Minister to reflect on that point. I shall be interested to hear what she has to say.

Lord Hylton

It seems that a probable case has been made out that solicitors and barristers may be caught by provisions aimed at racketeers. When the Minister replies, will she also say whether or not voluntary and volunteer advisers working mainly for voluntary organisations and often for charities will also be in the same plight?

Lord Avebury

The noble Lord, Lord Hylton, raises an important point. I should like some assurance on it. I find myself on numerous occasions being asked for advice by someone in a country of origin who wishes to claim asylum in the United Kingdom.

Perhaps I may cite an instance to the noble Baroness. A lawyer in Sri Lanka received death threats. Five of his colleagues had been murdered. He was advised that the best thing to do would be to leave the country. We facilitated his entry into the United Kingdom. Under this provision, should I have committed an offence and been liable for the penalties? In her initial remarks I believe the noble Baroness said that a condition had to be that the assistance was given for reward. In that case, the volunteers mentioned by the noble Lord, Lord Hylton, or Members of this House and another place who give unsolicited advice and do not charge for it would be exempt from prosecution. It would be helpful if the noble Baroness gave an assurance on that point.

Baroness Blatch

The noble Lord will see that under Clause 5(2)(a) volunteer advisers are not caught in relation to asylum seekers because they operate "otherwise than for gain". That is partly the answer I gave to the noble Earl, Lord Russell, a moment ago.

The noble Lord, Lord Clinton-Davis, asked about seeking exemptions that could apply to solicitors. It is very difficult to justify that. Unfortunately, some solicitors become involved in this evil trade and bring people here illegally. The noble Lord expressed some concerns on the part of the Law Society. As is my custom, I always reflect on everything that is said in the course of debate at any stage of a Bill and will reflect on those particular points.

The principle relates to the racketeer who, for gain, assists illegal entry—a practice that is very, very common—and assists by deception an illegal entrant to remain in this country. We believe that they are appropriate offences, and I should like to think that they are supported on all sides of the Committee.

Earl Russell

The noble Baroness needs to explain a little further what is meant by the words "for gain". Let us assume, for example, that a Member of another place with a large ethnic minority representation in his constituency and a very small majority assists asylum seekers to enter, believing that that will forward his re-election. Is that done for gain, or is it not?

I wish to make another point, I hope with the capacity to get attention, because it is a matter of very great personal importance to me. The noble Baroness has conflated two matters, one of which we agree is an evil trade, the other of which we on these Benches believe to be perfectly legal; namely, assisting people to pass by deception through the port in order to claim asylum in the country. We believe that that is part of our international obligations. Were any of us to criminalise ourselves by doing that, we should be placed in very great difficulty. I hope the noble Baroness will take that point on board.

Baroness Williams of Crosby

I have one further question before the Minister replies. In addition to the extremely serious point made by my noble friend, will she say another word or two about the reference to bona fide organisations? The phrase in the Bill is: a bona fide organisation whose purpose is to assist refugees". Will the noble Baroness let us know whether a bona fide organisation with several purposes, one of which is to help refugees, would meet the meaning behind this part of the clause? As she will appreciate, there are a number of organisations whose main purpose may be, for example, to discover whether human rights are being breached in other countries but whose secondary purpose is to assist refugees. The phrasing is rather broad. She may be able to help me on that point.

Baroness Blatch

I believe I can help on that point. The noble Baroness will see that Clause 5(2) affords the kind of protection to which she refers when one is concerned with bona tide cases.

I have to say to the noble Earl that I am astonished at some of the insinuations that underlined the comments he made a moment ago. If a Member of Parliament advises people in the normal course of his duties, first, I do not make the assumption that he is doing it for electoral purposes, since it is the duty of a Member of Parliament to offer advice. If he is doing it as a Member of Parliament in those circumstances and not for gain—that is, taking some payment, whether in kind or in money—then he will be entirely free from being caught by these provisions.

In answer to the noble Baroness, I am advised that bona fide organisations with several purposes would qualify, if they were indeed bona fide. That has to be the assumption; but that was the point made by the noble Baroness. Again, there is no need to deceive immigration control in this country because it is not an offence to claim asylum. One can deceive to get out of the country but not to get in. So we arc talking about deliberate deceit.

First of all, we regard racketeering as a very evil practice indeed. We are making it an offence in this Bill. Noble Lords wish to remove the offence.

Lord McIntosh of Haringey


Baroness Blatch

Oh, yes, noble Lords do. Amendments Nos. 58 and 61 ask to remove those two offences from the Bill: remove existing illegal entry and remove assisting by deception an illegal immigrant to remain in this country. I have read those two amendments, although they are not being moved this evening.

I want to give the example of a racketeer convicted in May last year—one of the rare successes, I have to say, in the current fight against such people—who was estimated to have earned £1.25 million in five years through his immigration activities. Police who investigated the case estimated that the racketeer had handled over 1,000 cases and had arranged about 650 marriages, in addition to submitting countless bogus asylum applications, where he had invented the substance of the claim. Once again, failure to act—which is what deleting the offence from the Bill means and that is to what the noble Lords have put their names; that is what deleting the offences from the Bill would amount to—would provide an open invitation to racketeers and facilitators to profit by ruthlessly trading on the aspirations of others. The noble Lords can wriggle all they like, but those amendments are down on the Marshalled List today.

Lord Clinton-Davis

The noble Baroness has made a very serious allegation and I must rebut it immediately. She has attacked a number of us tonight and she is very testy. But the fact is that she said that in effect we intended to aid and abet the racketeers. That is offensive. She has all the armoury of the draftsman and she is able to do that perfectly well. She can draft; and she sometimes makes a lot of mistakes herself in the drafting. She frequently has to come back to the House with a massive number of amendments to the legislation that the Government bring forward. It is much more difficult for us to draft.

I made it very clear—did I not?—over and over again, that we have no time and no room for racketeers. She knows very well the inadequacies that affect any Opposition. She will find that out in a year's time, anyway. But she has not begun to deal with the broad brush approach which will attack the bona fide practitioner. In no other field is a solicitor required to investigate whether his client has committed an offence. If the client says that that is his defence to something, the solicitor has to accept it. The solicitor can say, "Look, I don't think you'll stand much of a chance in court; but if that's what you want me to represent to the court, I must do that." It is his (or her) duty to say that. This particular provision goes far beyond that and creates a situation where solicitors will be very rueful about acting in this sort of case. That would be a tremendous disadvantage not only to the client and the solicitors alone but to the country, because people are entitled to proper representation.

Earl Russell

On behalf of these Benches, I should like to associate myself with everything that the noble Lord, Lord Clinton-Davis, said. This is a matter of intense personal importance to me. If the noble Baroness could draft a clause which would catch the racketeers and separate them from those who wish to continue to assist those who claim asylum in the country, she would find no one on this side of the House who would support racketeers. I am a great enthusiast for keeping the law, as the noble Baroness knows. But when I talk of observing the law, I include our international obligations, especially if they are reinforced by an Act of Parliament as recent as 1993.

The noble Baroness knows how I interpret the UN Convention. If she were to place me under an obligation in relation to the Bill, in conflict with what I regard as my legal obligations under the UN Convention, I would be placed in severe difficulties. The noble Baroness knows, and will remind herself if she walks down the corridor to Central Lobby, that I come of a family which has made a cult of political martyrdom. I think that that can be overdone. I now agree with St. Augustine that martyrdom does not deserve the name unless one makes an attempt to avoid it. It is that attempt in which I am now engaged.

Lord Hylton

Before the noble Baroness replies, perhaps I can say that at the end of a long and arduous day it seems to me that she has made a serious charge against the Opposition Front Bench. I hope she will agree that it is possible that she may have overlooked the distinction between a probing amendment and a substantive amendment. If that is the case, some of the problems may be solved.

Baroness Blatch

First, no one suggested that these are probing amendments. Secondly, I referred to what I. read. I do not need a bank of officials to tell me that the amendment to remove lines 31 to 33 and lines 34 to 36 in the names of the noble Lords, Lord McIntosh and Lord Dubs, and the noble Earl, Lord Russell, removes two new offences which were added to the Bill to deal with racketeering; that is, assisting illegal entry into the United Kingdom by deception, and assisting, by deception, an illegal entrant to remain in this country.

Those are important provisions in the Bill. Up until this moment those offences have been supported almost universally, even by the Opposition's colleagues in another place. But it is not banks of officials who placed that interpretation on this; I simply read the words on the page that those two new offences are to be removed from the Bill.

The noble Earl, Lord Russell, expresses a genuine concern. However, if he wants to advise and help somebody who may fall under the United Nations Convention 1951, he has absolutely nothing to fear if he is not exploiting those people: if he is advising them and helping; if he is not doing it for gain and he is not deceiving the authorities. At the point of entry the noble Earl would want, in their interests, to make sure that asylum was sought properly under the rules. I hope the noble Earl is not suggesting that he believes it is a bona fide activity to help somebody, by deception, to remain in this country without making that known to the authorities.

All I am saying is that these are important offences. Up until this moment they have been universally supported and I am surprised that they are not supported by noble Lords opposite.

Lord Dubs

I did not intend to say anything at all. But, in all fairness, it is only proper to respond to what the Minister said. I appreciate that the Minister has spent around nine-and-a-half hours on the Front Bench. That is a long time—far too long—and I have enormous sympathy for her because it is an unreasonably long period of time to do what the noble Baroness has been doing.

Having said that, I must go on the record. Years ago when I was in the other place, I was so angry about racketeers that I went to see the immigration Minister to protest that there were not enough measures to deal with racketeers. I have been involved in such issues for a long time. Anybody in the other place who represented an inner city constituency will know exactly what racketeers do; how they undermine our constituents in the other place and how they obtain sums of money. It seems wrong in principle that those people should continue to act as they do.

I regret that the Minister suggested that some of us had different motives. Frankly, we are seeking to withdraw the remaining amendments because of the lateness of the hour. That must be a worthy motive at this time of the evening. Some of those amendments are probing amendments. We have not had a chance to say so and the Minister is attacking us for tabling them. It is a normal convention in this Chamber, as it is in the other place, that amendments at Committee stage are tabled to test in detail the Government's thinking— no more and no less than that. We have had the Minister saying, on the one hand, that we have not taken enough amendments to a vote, implying that we were not committed enough to them, and, on the other hand, that there was something wrong with our motives because we put down amendments which were there simply to test the motives of the Government. I regret that the Minister has made those allegations against us. I am disappointed that she has seen fit to lower the tone of the debate in that way.

Baroness Blatch

It was certainly not my intention to lower the tone of the debate. As for the taunt about not pressing amendments, it was entirely in response to noble Lords opposite who have been rather offensive to my noble friend, who was not pressing the only amendment that she had on the Marshalled List today. I was saying that there were many amendments on the Marshalled List today which had not been pressed to a Division. I do not make that criticism other than to make the point that the noble Lord was being unfair to my noble friend, when it is not unknown for her to go through the Lobbies against the Government on occasions when she feels it is appropriate to do so.

It is not lowering the tone to say that the new provisions, which the Government want and with which the Opposition now say they do not agree, deal with unscrupulous racketeers who organise the illegal entry into the United Kingdom of people not entitled to come here by providing them with fictitious asylum claims, organised marriage rackets and bogus educational establishments whose sole purpose is to deceive the immigration authorities. These racketeers ruthlessly exploit their victims. These two amendments were aimed at that. Noble Lords have made it quite clear that they do not agree with that and they also have amendments on the Marshalled List to remove these new offences from the Bill.

I simply draw the conclusion that noble Lords have spoken against the amendment and they have put down amendments to remove the two new offences from the Bill. I draw only the most appropriate conclusion from that.

Lord Clinton-Davis

The Minister is afflicted by the Howard syndrome. That is the problem. The trouble is that they cannot recognise an important point when it is raised by a professional organisation of great repute and by organisations such as the Refugee Council and many others which are concerned about the welfare of people. The noble Baroness cannot see that. She is completely blind to argument tonight. We do not blame her because it is late. Her reason has succumbed to the lateness of the hour.

The other factor is that in the other place the Minister agreed to consider Clause 5(1) so that it would be better targeted on racketeers. Why did she not say that tonight? Why did she not agree that there was room for improvement? That is all we are asking for. We are certainly not on the side of the racketeers—and she knows it. What she is trying to gain is some obscure political point. She really has not done herself credit tonight. In all the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57 to 66 not moved.]

Clause 5 agreed to.

[Amendments Nos. 67 and 68 not moved.]

Lord Lucas

I beg to move that the House do now resume.

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

House resumed.

House adjourned at sixteen minutes before two o'clock.