HL Deb 29 January 2002 vol 631 cc156-74

7.30 p.m.

Lord Avebury

rose to move, That an humble Address be presented to Her Majesty praying that the rules, laid before the House on 17th December 2001, be annulled (S.I. 2001/4014).

The noble Lord said: My Lords, these rules have aroused an enormous amount of concern throughout the whole refugee community from the United Nations High Commissioner for Refugees down to all those who are trying to help asylum seekers in the United Kingdom.

The rules apply to an asylum seeker whose claim is certified by the Secretary of State under Section 9(1) of the Immigration and Asylum Act 1999. He is caught under several different headings: if he fails to produce a valid passport at the port of entry and gives no reasonable explanation for that failure, whether or not an explanation exists; if he produces an in valid passport and does not inform the officer that it is invalid; if he enters the UK for some other purpose and claims asylum only after the original leave to remain has expired; if an immigration officer decides that he does not have a well-founded fear of persecution or a right under the European Convention on Human Rights; if his case is manifestly fraudulent or any of the evidence that he presents is false; and so on.

In any of those circumstances, the Secretary of State may certify the case under Schedule 4 to the 1999 Act. Under the rules, the adjudicator's determination will be served only on the Secretary of State who will then notify the appellant or his representative. If an asylum seeker who is not certified applies to the tribunal for leave to appeal, and the tribunal refuses such leave, the decision will be sent to the Secretary of State who will forward it to the applicant and his representative at a time of his own choosing.

No time limit is laid down within which the Secretary of State has to forward the decision in either case, presumably so that he has plenty of time to formulate removal directions and serve them on the appellant at the same time as he receives the adjudicator's or tribunal's decision, thus allowing him to be taken into custody immediately. Will the Minister confirm that that is how the procedure will operate? It is not clear from the rules or the press release, which was issued by the Minister's department.

A solicitor sent me an e-mail to ask: Where is the impartiality and fairness of a judicial system which gives its decisions to one party only, for its own administrative convenience?". The noble Baroness will be aware that the Law Society is critical of both the absence of a time limit, which it says is

extremely prejudicial to the appellant and of the simultaneous delivery of the adjudicator's decision and the removal directions, which could nullify legitimate legal remedy against removal.

The Immigration Law Practitioners' Association says that it is aware of no other area of litigation where one party has no right to be told direct by the court or tribunal whether or not he has been successful. The Refugee Legal Centre makes the same point.

Why did the Government make that change to the rules? It was not proposed in the consultation paper on appeals which was issued last summer; it was sneaked in over the Christmas Recess, which suggests that the Government want to minimise discussion. The Home Secretary's press release states that it is to prevent asylum seekers from having a head start in knowing what the decision is, and if it is unfavourable, being able to disappear". He added that it would contribute to getting a grip of the removals process, and will ensure that those who, having exhausted the appeals system, have no right to remain, actually do leave the country". In other words, snatch squads will descend on appellants, bundling them and their families off to Harmondsworth or Tinsley House before they are even aware of the adjudicator's decision. They will have no chance to obtain legal advice on whether it might be possible to seek judicial review of the decision. I asked the Government how many asylum seekers who had exhausted their rights of appeal last year obtained leave to seek judicial review. That question has not yet been answered, but there are many such cases. No statistics are kept, and I hope that the Minister will say on what information the Government decided that it was necessary to introduce the rules separately from other reforms being made to the appeals system.

Will everybody who is certified and loses at the adjudicator or tribunal stage be detained? How long will such people be detained? If the time is short, they may not have time to consult their lawyers. If the time is long, that will be against the Government's declared policy of keeping people in custody for the minimum length of time.

There may be people who, although they have no legal right to remain, deserve consideration on humanitarian grounds. An example is the ethnic Albanian family on whose behalf it was argued in the High Court that because the wife had been raped in public, it was unreasonable to expect the family to return to Kosovo. The adjudicator said that the family's ordeal was the worst case he had heard in four years of experience. Mr Justice Turner, while refusing leave to appeal, suggested that an application should be made to the Secretary of State to exercise his discretion to allow the family to remain here indefinitely.

Had these rules applied, the case would probably not have reached the High Court. The chief executive of the Immigration Advisory Service, Mr Keith Best, has written to the Home Secretary saying that if removal directions are indeed served at the same time as the decision, rights that the appellant might still have will be nullified. Mr Best contradicts the Government's assertion that in every case where the rules apply, the appellant will have exhausted all further rights of appeal.

Mr Best also thinks that there could be a right of appeal in certain circumstances, such as when the spouse or child of the appellant, having a separate locus under Section 6 of the Human Rights Act 1998, invokes the right to family life provision of Article 8 of the convention. Let us suppose, for instance, that the spouse has a serious accident after the hearing and needs indefinite care and treatment. It might then be unreasonable to expect the spouse to accompany the applicant back to the country of origin—a third world country, where no medical facilities or support exists for the severely disabled. That spouse might then be able to invoke Article 8. It is therefore not true that all the appellant's rights have been exhausted.

The UNHCR deputy representative says that judicial review may be the only channel by which the applicant may realise his entitlement to international protection", for example, when relevant country of origin information is disregarded or not adequately reflected in the decision to refuse asylum.

He could have been referring to the recent experience that we had with Zimbabweans when the Minister was asked repeatedly to review cases that had already been decided, in the light of the crescendo of human rights' abuses in Zimbabwe as the election approaches. The Minister adamantly refused to consider our proposal and the individuals concerned would have had to rely on judicial review where that was possible, until suddenly one day the Secretary of State decided after all that it was unsafe to send anybody back to Zimbabwe.

In about half of the cases dealt with by the RLC since the 1999 Act came into force, the certificates have been overturned. Other agencies may not have had the same rate of success, and it must be acknowledged that the quality of representation is variable. When appellants are dispersed they may not be represented at all because of the difficulties of communication. The existing solicitor may give up the case when the client moves because of the distances involved, and it may be impossible to find a replacement in time. Thus it will be a matter of luck whether an asylum seeker is dealt with by the procedure of the order. For example, the IND habitually certifies eastern European Roma cases as manifestly unfounded, despite the huge amount of material on the violation of Roma rights. When Roma clients are competently represented, the certificates are often successfully challenged.

The people who abscond at the end of the asylum process present something of a problem. We would have agreed to discuss ways of reducing the number if the Government had decided to consult us, the voluntary agencies and the practitioners, as they normally do. First, we should like to know how long after the final decision the removal notice is generally served, and what proportion of notices cannot be served because, in the meanwhile, the person concerned has moved without giving any forwarding address. Secondly, can the Minister tell the House how many people leave voluntarily when asked to do so? From this Friday, all new asylum applicants are to be issued with smart cards, as announced by the Home Secretary on 29th October last year. Will people who fail to report have their benefits suspended? Further, what will happen to the benefits of a person whose case is certified after an adverse decision is notified to the Secretary of State by the adjudicator?

These rules were produced quite separately from all other changes in the appeals system. They were not foreshadowed in the consultation paper issued last summer; they were sneaked in over the Christmas Recess. They deprive some asylum seekers and their representatives of the right to seek judicial review in circumstances where it has proved to be a necessary safeguard. I beg to move.

Moved. That an humble Address be presented to Her Majesty praying that the rules, laid before the House on 17th December 2001, be annulled (S. I. 2001/4014).—(Lord Avebury.)

Lord Judd

My Lords, I am sure that the House will be grateful to the noble Lord, Lord Avebury, for having raised the issue this evening. The noble Lord has a long, distinguished, and perhaps unrivalled career and history of commitment on these issues. He put the case with great clarity and gave the House a considerable amount of detail on the subject. It is, therefore, unnecessary for other speakers to repeat that ground. 1 should simply like to make a few brief points.

First, I should like to assure my noble friend the Minister that concern is not limited to noble Lords on the Benches opposite. There is concern on these Benches. We are aware of the more widespread anxiety among the people to whom the noble Lord, Lord Avebury, referred. I shall begin with one of the points that has been raised with me and one upon which it would be interesting to hear my friend's comments. The arrangements have already been put into practice before the time for challenging them has reached anything like a deadline. This is perceived as being unfortunate.

The second issue is one that has caused a good deal of consternation. In this very highly-charged area in terms of human well-being, emotions, psychological strain, and so on, it is important to have a very good relationship among the different people playing their part. I have in mind the legal profession, the advisers, the courts, the Government; and, indeed, the officials who have to carry out whatever may have been decided. Therefore, consultation and goodwill is crucial to achieving a civilised approach. Again, it would be helpful to hear from my noble friend why she believes there is so much feeling that there has not been anything like adequate consultation on what is obviously a very significant arrangement. I think that this is most unfortunate. I hope that my noble friend will find some way of reassuring us on this point tonight.

I have one further, simple point to make. When dealing with asylum, we are dealing with what is perhaps one of the most crucial issues in the whole realm of human rights. It is terribly important that justice not only be done, but that it should be seen to be done. However, to the best of our capabilities. we must also be confident about the decisions that are made. When this House debated the death penalty in the past, one of the issues quite properly raised was that of a mistake being made where capital punishment exists, with the impossibility of putting it right.

As someone who has for much of his life worked in realms not far from the issues under discussion this evening, I believe it is no exaggeration to say that. on occasion, we may be dealing with exactly such an issue. In that context, if there are any conceivable grounds whatever for challenging a decision—even at the 11th hour—and going over again what is involved in order to make absolutely certain that the rejection of a person's search for asylum is justified and right, it seems to me that that opportunity should he taken. It is, therefore, worrying that the new arrangements seem to some people to mean that irrevocable action may be taken before there has been a chance to exercise such a right. My noble friend's reassurance on those points would he most helpful.

I know that dealing with the whole business of asylum and the issue of migration is a very difficult task. I have a good deal of sympathy with my noble friend as regards the responsibilities involved. I am sure that my noble friend must be exasperated on occasion. It seems that everyone wants it both ways: they want clarity; they want firmness in everyone's interests; but when one tries to introduce clarity and firmness, people want more deliberation and discussion. Of course, there is a balance to be struck. However, on this particular issue, there is a real feeling that the balance has come down too far in terms of administrative convenience, or perhaps something a little more—dare I use the word in all friendliness?—sinister than administrative convenience. It is extremely important, therefore, that my noble friend the Minister should put our minds at ease on these issues. It may well be difficult to do so, but I believe that she should try to reassure the House.

The noble Lord, Lord Avebury, made one further important point—one that weighed heavily with me. If a matter is being handled judicially, surely it is the right of the person affected by the decision to feel confident that he is hearing from the judicial authorities as to why the decision has been made and what the possible implications may be. If there is to be an intervention by the executive, there will undoubtedly be anxieties and misgivings about what exactly is going on, and why. For all those reasons, I hope that my noble friend, who is a generous person, will agree that the noble Lord, Lord Avebury, was right to raise the issue, and that she will do her utmost to reassure people on these very deep and genuine anxieties.

The Countess of Mar

My Lords, I begin by declaring an interest in that I have been a member of the Immigration Appeal Tribunal for 16 years and have, therefore, seen the changes that have occurred with the number of asylum seekers increasing hugely over recent years. Although I do not always agree with the noble Lord, Lord Avebury, he has made some very valid points tonight. I am grateful to him for enabling me to add my pennyworth. I can understand the frustration of Her Majesty's Government. I sometimes feel despondent when I have given careful, anxious and thorough scrutiny to a case, as I am required to do, while I know that it will go nowhere.

However, there are one or two fundamental questions. Can the Minister kindly tell the House how many attempted removals have been thwarted by the disappearance of the appellant in the past year? If, as I suspect, the number is not known, can the noble Baroness say what efforts have been made to quantify the problem that this piece of legislation is intended to remedy?

We all know that there is plenty of anecdotal evidence that large numbers of failed asylum seekers remain in the United Kingdom without permission. We are aware that the number of voluntary and forced removals combined bears little resemblance to the number of appeal refusals. There is not much point in this little piece of legislation if it is not going to produce results.

It is the duty of the Immigration Appeal Tribunal to apply the law as it is. This statutory instrument deals with an administrative process after the decision has been made. I am sure that the Minister understands that it does not affect the decision making process and that, while the staff of the Lord Chancellor's Department may be involved, the judiciary is not.

I still have some concerns about the rules—some of which have been clearly expressed by the noble Lords, Lord Judd and Lord Avebury. We all know the adage that justice must not only be done; it must be seen to be done. The noble Lord, Lord Judd, expressed far more clearly than I can my unhappiness about the way in which the rules make arrangements for the determination of cases where appeals against refusals to recognise appellants as refugees have been dismissed or have been sent to the Secretary of State. That is not fair. No time limit is laid down between the date of receipt of the determination by the Secretary of State and the date before which it must be served upon the appellant. I understand that there is some kind of agreement between the Home Secretary and the noble and learned Lord the Lord Chancellor that, if a determination has not been served within two months, the Immigration Appeal Tribunal will serve it by post. I should be grateful if the noble Baroness would confirm that.

There are a number of "What if?" questions that need to be answered. What will happen if a determination rejecting an appeal is served by Home Office officials whose function is also to arrange for the removal of the appellant, where there is a possibility that the appellant may have the right to further recourse to the courts? Are removal directions to be served with the determination? Will the appellant be taken into custody and given the opportunity to seek legal advice? Is the appellant's representative to be given the opportunity to be present when the notice is served? Is it the intention that the Home Office will employ additional staff to carry out this function? To put it mildly, the credibility rating of the Home Office in this field tends towards the low side, if not the very low side. If immigration officers are to do this job properly, they must be given the tools and the manpower.

The noble Lord, Lord Judd, mentioned the lack of consultation. This has been a long-standing problem. Why is it suddenly being pushed in now? Has there been consultation, for example, with the Council on Tribunals? If there has, when did it take place and what was the process?

Finally, I make this plea. When a law is brought into force, copies of the legislation must be publicly available. This has not been the case with these rules and, more seriously, nor was it the case in the early days of the recent anti-terrorism Act. The Home Secretary had to be asked to produce a proof copy to the deputy president of the Immigration Appeal Tribunal so that he could set up a bail hearing for someone who had been arrested under the terms of the Act. He was told that he must not divulge the contents of the proof copy to anyone. That is not satisfactory. There needs to be co-ordination between the Stationery Office and the department producing the legislation, so that when an Act or a regulation comes into force it is publicly available.

Lord Hylton

My Lords, your Lordships might have some slight sympathy with the Government in their desire to speed up deportations of asylum seekers whose cases have failed. I might possibly share that sympathy to some extent. However, I do not think that sympathy is what we are being called on to express in this debate. The Government have to listen seriously to the Immigration Law Practitioners' Association, which has pointed out that these rules were produced without consultation. It goes on to say that they are wrong in principle and unworkable in practice.

Some of us who have laboured through a whole series of immigration and asylum Bills have been saying for some time that what needs to be got right is the quality of the initial decision. Many components go into the quality of the initial decision. I shall mention only a few. One is the availability of interpreters for people who have no English or very limited English. An interpreter has to be the kind of person who can enter into the state of mind of an asylum seeker who may have travelled many hundreds of thousands of miles to get here.

Another important factor is the quality of the background information on the country of origin of the person in question. For example, what are, in practice, the risks of torture if that person is returned to where he started from?

A third, highly important factor is the availability of legal advice to the applicant. Applicants cannot be assumed to understand British law, let alone the workings and practice of the British immigration and asylum process. The rules assume that the applicant may not have a legal adviser. Even if he is fortunate enough to have one, he may be removed so quickly that he will not have access to deal with the latest refusal.

I agree entirely with the noble Lord, Lord Avebury, that the rules are likely to have a serious effect on those cases where emergency leave to remain is normally granted. Perhaps I may quote a comment by the London representative of the UN High Commissioner. He points out that it is essential to, determine whether the applicant has benefited from 'fair and effective procedures for determining status and protection needs—. The term "protection needs" is precisely what we understand by "exceptional leave to remain". So the rules call into question the whole application of due process to any particular case.

I therefore join with and support the noble Lord, Lord Avebury, in urging the Government to consult fully and, in the case of this specific measure, to think again.

The Earl of Sandwich

My Lords, to begin on a more positive note, I think we are all relieved that the Home Office is reducing the backlog of asylum applications and is getting nearer to a coherent policy. Some of the had law has been cleared away and we are all looking forward to the White Paper next month.

However. the events of 1 1 th September have not given any greater security to genuine asylum seekers—rather the reverse. There are many people who suspect that the Government are clamping down on asylum seekers or are about to. Here we have amendments to the asylum rules which have caused a great deal of concern among the agencies which know about refugees. We all want illegal immigrants to be removed, but not without the proper safeguards that we would give to our citizens.

The accelerated procedures were reviewed and criticised by the European Union Committee of this House in March. The committee said that they were no substitute for good decisions. It even doubted whether they had any place in the EU directive. The Select Committee on delegated legislation is to examine the matter tomorrow afternoon.

The only challenge to certification is judicial review, which may now be undermined. While it is important for manifestly unfounded cases to be identified speedily and for people to be removed before they are able to abscond, it is equally imperative that asylum seekers have the benefit of legal advice throughout the legal process.

Until now, the Immigration Appellate Authority has informed both parties of the decision to an appeal. But under the amended rules, the IAA's decision goes principally to the Secretary of State and may only reach the appellant some time later. Thus the Home Office may he able to take steps to remove the asylum seeker even before he or she has heard the decision. Surely any such action would be contrary to undertakings given by the Home Office in the recent cases of Pardeepan and Kumarakuruparan. At what stage under the new rules would the Home Office inform the asylum seeker's legal representative? Do the rules also apply to those who are not at risk of absconding?

Finally, if an asylum seeker reasonably decides to take legal advice following a negative decision, can the Home Office improve on its present timetable of reporting both initial decisions and appeals? I can see what the Government are worried about. There are too many unfounded cases, and applicants may disappear. But at present the process can take months. It is surely unfair to spring a decision on a family and proceed immediately to removal before any time has elapsed. I know that that is not the intention, but it may be the result.

Some have asked for a personal guarantee from the Secretary of State that no one will he removed within an agreed period after the determination, but it would be far better if the Home Office could rethink the implementation, workability and natural justice of the amended rules.

8 p.m.

Lord Brooke of Sutton Mandeville

My Lords, I have great respect for the immigration Minister, the noble Lord, Lord Rooker, on the Front Bench and for the noble Baroness, Lady Scotland, who I believe is going to respond to the debate.

I had a great many more cases in the last Parliament than I had ever had before—perhaps because of the silence of the Home Office in responding to many of them. I pay tribute to the Minister for the manner in which cases are being cleared up. I am grateful to him for the way in which he has responded to a lot of cases that I have raised with him in this Parliament that dated back to the previous Parliament.

I shall dwell for a moment on the circumstances of the case to which the noble Lord, Lord Avebury, referred. I remember a deportation case involving a Lebanese several years ago that came to me just before Christmas. Cynics might say that the timing of the deportation case had some of the characteristics that the noble Lord, Lord Avebury, referred to with regard to the timing of the order. There were certainly those who thought that that might be so. It was a complicated case that totally took over my time a nd that of my secretary in the run-up to Christmas, which is a busy period, but we got in a massive submission to the Minister's office. One of the minor rewards was that the private secretary in the Minister's office with whom we were directly liaising spoke warmly about the amount of work that had gone into it and the quality of the manner in which it was set out.

The decision was upheld, but the individual then disappeared immediately after Christmas when they were supposed to be at Heathrow. That is incredibly frustrating for everybody concerned. I freely acknowledge that it is frustrating for the Government as well. It was frustrating in a modest way for me and for my secretary, but our time had been freely given, so we had to write it off to experience. I certainly would not want to weigh that frustration against the rights of those who come to parliamentarians—I choose that word deliberately to embrace both Houses—with their cases.

It is tragic that those who disappear—who presumably underlie the order—potentially queer the pitch for so many others by the atmosphere that they create. I understand the Government's frustration. I might even be prepared to give the Government the benefit of the doubt in the circumstances, but, just as it is helpful when making umpiring decisions in cricket to be able to see a replay of what occurred, I think that on this occasion, not least because of the eloquence with which the noble Lord, Lord Avebury, spoke, the Government owe the House a full and clear picture of why the provisions were brought in, and in particular why they were introduced in such a manner.

Lord Dholakia

My Lords, I am delighted that the noble Baroness, Lady Scotland, will be responding to the debate. She has an excellent record on human rights issues and I hope that she will see the reasonableness of our case. She need not worry about the Minister from the Home Office who is sitting next to her. His often tough pronouncements on immigration and asylum issues are probably meant much more for the press. His personal actions on cases that are referred to him often display many humanitarian considerations.

I also thank the noble Countess, Lady Mar, for her contribution. She has first-hand experience on immigration appeals and her concerns must be taken very seriously.

I am delighted to support my noble friend Lord Avebury in proposing that the rules laid before the House on 17th December be annulled. A number of noble Lords have already pointed out some serious issues of concern. We are told that the change is necessary to deal with potential absconders. No one underestimates the Home Office's concern about applicants who may vanish once they know that their appeal has been unsuccessful. However, the Home Secretary has a quasi-judicial function and he cannot and should not be allowed to act as judge and jury in a matter where legal process has not been exhausted. In his rush to reach the target set for deporting applicants, the removal directions have been set at the same time as the notification. In reality, that prevents applicants exercising their legal rights by nullifying any further legitimate application by the appellant on other grounds, such as whether any provisions of the Human Rights Act have been breached or whether there is a change in circumstances in either the appellant or the country to which the appellant would be removed that might prevent the enforcement of removal directions.

Let me make it clear that we have no dispute with deportation orders taking place if all legal procedures have been followed. That is what Parliament intended. However, any procedure short of that takes away the independence of the judiciary and places the matters squarely in the hands of the Secretary of State. That is not what Parliament intended. My noble friend's Prayer is designed to prevent that.

Other matters of serious concern have been highlighted during the debate. The rules were laid before Parliament just before the Christmas Recess, on 17th December, and came into force on 7th January. During that time your Lordships' House sat for only five days. The rest of that time was the Christmas Recess. That did not give enough time for consultation. Almost all immigration and asylum organisations have complained about that haste.

Last week, I asked the noble Lord, Lord Rooker, whether there were any legal means by which an applicant could enter the United Kingdom and make an application for asylum. The Minister was bold enough to say "No". Of course, we all know that that is the state of play today. We have created conditions that make our signature to the 1951 UN convention on refugees a charade. If a person cannot enter the country or is prevented from doing so, what good is a convention, which is designed to protect those who are victims of persecution?

I well understand the Minister's anxiety about those who are economic migrants, who do not qualify under the 1951 convention, but the Government make the laws and they have no right to circumvent an individual's access to law if that is provided for in statute.

Consider the cases of asylum applicants from Zimbabwe. Was it not the pressure from Parliament and my noble friend that made the Home Office rethink its policy of deportation? Surely even after the certification that a claim is without foundation, the situation may change rapidly and therefore such certification does not mean that a claim is without basis. It is a fallacy that all certified claims are "manifestly unfounded". There is a risk that people will be returned home to face persecution. We need to abide by the safeguards that the law already provides.

If my noble friend Lord Avebury had not protested so loudly, and had the Government not changed their stance, the only way of challenging refusal in such cases—and in cases in which there is no certification in force and the tribunal has refused leave to appeal—would be to apply for a judicial review in the High Court.

Before this order, decisions were sent to the appellant and his representative as well as to the Home Office as soon as they had been made. Now there is to be a fundamental change. The outcome of such appeals will be sent only to the Home Office. It will be up to the Home Office to inform the appellant of the outcome at a time and place of its choosing.

The reason offered by the Government is that the new measures will contribute towards improved enforcement of asylum appeal decisions, while upholding the independence of the Immigration Appellate Authority. That is utter nonsense. The crux of the matter is that it is to enable the Home Office to deliver negative appeal decisions if the appellant has exhausted all rights of future appeal. Does that include a judicial review at the end of the appeal process?

Many of us were disturbed by a recent documentary about the immigration snatch squad. I was horrified that the Home Office was prepared to expose the identity of individuals in full view of television cameras. We would not allow such treatment in respect of those against whom a criminal conviction was pending. In this case, however, we are talking about asylum seekers who have committed no crime at all. The snatch squads would use their powers to deport and thus deny access to further legal process even if that were requested, and the applicant or his legal representatives would have no time to digest the decision on which the snatch squads acted.

Although the accountability of snatch squads is a serious concern, it is a separate issue that we shall take up in due course. In this debate, there are other concerns on which we need ministerial clarification.

Some asylum seekers are unable to appeal to the IAT, and many of them are not regarded as possible absconders. They, too, will find that their decisions have been sent to the Home Office. Will the Minister explain why the rules cover those who are not deemed to be at risk of absconding? Can she explain whether any precedent places a requirement on the IAA to inform one side but not the other of the result of the procedure? It is like a judge or a magistrate informing the police of a decision without the defendant being aware of it. The first time an appellant discovers the outcome of his case would probably be on the way to the airport, too late for any further legal process. Is that consistent with the protection of Article 6 of the ECHR? Will the Minister confirm that the rules do not breach that provision?

Will the Minister explain how and at what stage unrepresented failed appellants will be allowed to contact a legal adviser? What criteria will be used to determine which failed appellants are likely to abscond? Do the Government have any plans to establish a complaints machinery similar to the Police Complaints Authority so that there is proper accountability of the snatch squads' work'? I ask your Lordships to cast back your minds to the case of Joy Gardner which resulted in street riots in Tottenham. Surely, there is a real danger that such a situation may arise if decisions are taken but appellants are not even sure why the Home Office has ordered their removal.

My noble friend Lord Avebury, with his vast experience in human rights, has rightly challenged the Government on the rules. I look forward to the Minister's explanation with great interest.

8.15 p.m.

Lord Dixon-Smith

My Lords, I cannot but feel that everyone involved in this debate, whether they are advocating the solution advanced by the Government or the case in favour of asylum seekers, is in the same position: we are all between a rock and a hard place. The fact is that this country's record on asylum seekers has been, and remains, remarkably good. Of course, within that good record there are occasional tragic errors. It is absolutely right that everyone should be properly concerned about those errors and seek every means by which they can be eliminated.

It is, however, also the fact that the number of asylum seekers has increased dramatically in recent times. It is also the fact that the number of those who have gone through the clue process and failed to have asylum granted is not matched by the number of those leaving the country. That is a very difficult dilemma to deal with. Tragically, those who escape the system prejudice the whole system for those who have a legitimate case and ought to remain. I think that the empirical evidence would suggest that there are far too many people in that category and that they sadly outweigh the failures of the system, if failures there be. That is the reality that we are dealing with.

I do not think that anyone takes any pleasure from the situation in relation to Zimbabwe. The Government were rather slow in acting on a case in which it was quite obvious that we were dealing with a government who had gone seriously astray and in which the rule of law as we understand it in European terms had completely broken down.

There was movement in that direction, but there has also been movement in another direction. Although I would be the first to acknowledge that there are still severe questions about the state of affairs in Afghanistan, there is marked improvement there. How is it possible to make the judgment in respect of asylum applicants from Afghanistan who have come here in tragic circumstances, as the result of a regime that no longer exists? I agree that there are question marks over the stability of the new regime there. But are we to say, as we very easily could, that we have no confidence in so much work that is being done by so many people from this country—I pay tribute to the Prime Minister for his part in this—and from America and the United Nations? They have tried to rectify a tragic situation. If we are saying that, should we acknowledge it?

The fact is that hard cases make bad law, and we have seen many hard cases. However, the generality of the law has been good. I echo particularly those who ask the Government whether the appeals mechanisms are satisfactory. The purpose of serving appeals notices in person on an applicant is to prevent his disappearance. If that meant that someone was to be immediately whistled off and put on an aeroplane when he had further legal recourse that he ought to have used, it would be wrong.

So the credible question is on the detail of how the new rules will work. That is the appropriate question to ask the Government at this stage. As only the Government can answer it, having asked it I shall sit down.

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

My Lords, I am grateful to the noble Lord, Lord Avebury, for giving us this opportunity to discuss the important points that he has raised. I was not surprised to see that my noble friend Lord Judd has been joined in the debate by the noble Lord, Lord Hylton, the noble Earl, Lord Sandwich, the noble Countess, Lady Mar, and the noble Lord, Lord Brooke of Sutton Mandeville. I think that we are all old friends and have been on this journey many times. I should like particularly to thank the noble Lord, Lord Dholakia, for his kind comments, and for the sting that he always brings with them. I am grateful also to the noble Lord, Lord Dixon-Smith, for his questions and implicit support.

The moral, legal and practical anxieties that have been ventilated in this debate are very well understood by the Government. A balance has to be struck between improving the lot of those who should and must benefit from the asylum that our country rightly gives, and those who seek to abuse the system and take adventitious and improper advantage of the benefits that asylum brings. I think that no noble Lord has failed to emphasise that point, and rightly so. But, as noble Lords know, being just means that when it is right to do so we must be able to say no. I know that for many of us—I do not exclude myself from this group—that is a word we find difficult to say. I do not suggest that we should say it precipitately or ill advisedly. However, we have to separate and protect the sheep from the wolves. The mechanism which the rules provide may assist us to do that.

Many noble Lords, not least my noble friend Lord Judd and the noble Earl, Lord Sandwich, asked what happens if a tribunal or an adjudicator gets it wrong and there are further or other issues which should properly be taken into account. I reassure the House that we have the comfort of the availability of proper, robust legal advice and an avenue through judicial review, if the grounds are there to support it, at the disposal of the failed asylum seeker through which such decisions can be reviewed. I reassure noble Lords that there will be no worrying irrevocable step to be taken in that regard. I hope that my noble friend Lord Judd will particularly welcome that statement.

We believe that we have achieved the correct balance. The policy forms part of our wider reforms to the asylum system. Our aim is a fair and efficient system to integrate genuine refugees into society swiftly and to remove without delay those who fail to gain asylum. Everyone will continue to have a fair opportunity to put forward his or her claim, however weak or strong it may be. The measure contributes towards the developing strategy for maintaining contact with asylum seekers by means of initial briefing and reporting at accommodation centres, reporting centres or police stations as part of the asylum support arrangements. All those measures together will help to ensure that asylum seekers fully engage in the consideration of their claim.

A number of noble Lords asked about implementation. The noble Lord, Lord Avebury, suggested that the rules were "sneaked in" over the Christmas Recess. I believe that that comment was echoed by the noble Lord, Lord Hylton, the noble Earl, Lord Sandwich, the noble Lord, Lord Brooke, and, indeed, the noble Lord, Lord Dholakia. I believe that it was also echoed by the noble Lord, Lord Dixon-Smith. I by no means wish to leave him out of that illustrious company. I reassure the noble Lord that the rules were introduced under the ordinary parliamentary procedure for this kind of statutory instrument. They were published by the Stationery Office shortly before they were due to come into force. At the same time they were made available on the Internet. A press release was issued as soon as they came into force and before that, before Christmas, the next day after they were laid before Parliament, copies were sent to organisations with an interest in immigration issues. No decisions could be sent to the Home Office for delivery until the rules came into force. I reassure noble Lords that in reality no one could possibly have been affected by the new rules until all those with a recognised interest in these issues had had time to assess them.

We had a consultation process. There was consultation with the Council on Tribunals. A draft of the rules was sent to it on 28th November. It was asked to comment by the end of the week and it did so by letter received on 30th November. We replied. There was also consultation with the chief adjudicator and the president of the Immigration Appeal Tribunal.

The implementation of the new method of delivering appeal decisions in person will happen gradually. Initially, only a small number of decisions will be served personally on asylum seekers, limited to four geographical locations. I reassure noble Lords that there will be a full evaluation of the policy in March to ensure that the scheme is working fairly in every case. I reassure the noble Countess, Lady Mar, that we agree that to be successful that process must be effective.

The Government understand the concerns that legal proceedings must be fair, and must be seen to be fair. That refrain echoed around the House. The courts, including the European Court of Human Rights, rightly attach importance to the perspective of the person who loses. But that person's perspective is not the only one to accommodate. Fairness is an objective concept, not a subjective one.

If the Government permit a judgment to be evaded or frustrated by another individual, or by the state, that would constitute a violation of the successful party's fundamental right to a judgment that was effective and not nugatory. Inherent in the law of human rights is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. Those are not my words but the words of the European Court of Human Rights.

I believe that the noble Lord, Lord Avebury, among many others, rightly asked me to confirm how the procedure is intended to operate. That point was echoed by a number of noble Lords. The effect of the new rules is that where, and only where, no further appeal lies from the decision of an adjudicator to dismiss an appeal under rule 15, or from a decision of the Immigration Appeal Tribunal to refuse leave to appeal under rule 18, the notice of that decision will be delivered by the Home Office. Delivery may be by post or in person. In either case delivery will be prompt. Decisions to be posted are dispatched within two clays. Decisions to be delivered in person will be delivered within two weeks whenever possible. Legal representatives will be notified within 24 hours of a decision being served. It is intended if possible that they will be sent notification by fax as opposed to by post. I hope that that deals with the question of the noble Earl, Lord Sandwich.

The changes make no difference whatsoever to the conduct of cases before the adjudicator or the Immigration Appeal Tribunal. I am happy to be able to confirm that as I know that it is something the noble Countess, Lady Mar, was rightly anxious to underline. An asylum seeker will have exactly the same opportunities as now to present his or her case.

I was also asked about the Immigration Appellate Authority, whether decisions will be served after two months and what will happen if the Home Office fails to do so. The Home Office must tell the appellate authority when and how it has delivered the decisions. The rules require that. The appellate authority will chase the Home Office. We know how efficient the appellate authority can he in that regard. If it does not receive notification within six weeks that the decision has been delivered, it will be able to follow that up. The appellate authority will keep chasing the Home Office until the decision is delivered, but it will not send it out itself.

The changes make no difference to the availability of review by the chief adjudicator under rule 16 or by the Immigration Appeal Tribunal under rule 19. The changes make no difference to the availability of judicial review. If an unsuccessful asylum seeker is applying for judicial review to the High Court, the Home Office will not remove that person from the United Kingdom for at least three days to allow the application to be made. The Administrative Court Office will accept the application by fax. If an application for judicial review is made, the Home Office will not remove the applicant from the United Kingdom until that application is determined. We have an assurance.

If the unsuccessful asylum seeker is detained, he or she is given an effective opportunity to take legal advice. Telephone calls may be paid for and details of the Immigration Advisory Service and of the Refugee Legal Centre are displayed in a number of languages in all removal centres. All of that will continue to be the case.

The new rules give the Home Office no unfair advantage. They deprive no one of the opportunity to apply for a chief adjudicator's or appeal tribunal review. They deprive no one of the opportunity to apply for a judicial review. They deprive no one of the opportunity to take legal advice. The only opportunity of which anyone is deprived by the new rules is the opportunity to evade or frustrate the carrying into effect of the judicial decision in their case. And no one has a fundamental right to frustrate justice.

I thank noble Lords for the way in which they have expressed their understanding of the need to distinguish between the valid asylum seeker and those who seek to abuse the system. That is an important distinction that we must all rightfully bear in mind.

The Government accept —I reassure the noble Lord, Lord Dholakia, on this point—the current legal position. As the noble Lord knows, that position is that immigration cases do not engage Article 6 of the European Convention on Human Rights: that is., the right to a fair trial. That has been the judgment of English and Scottish courts, and of the European Court of Human Rights. But the Government willingly accept that those seeking asylum are as much entitled as any other litigant to the standards of fairness that the common law requires.

In other legal proceedings, it has for many years been the case that where a court order might be frustrated by its recipient, the applicant can apply for the order, and then can enforce it, without giving the recipient advance notice. No one has yet successfully alleged that that procedure compromises the independence or impartiality of the court, or violates anyone's fundamental rights, even where the order is in favour of the government. It is true that in each of the cases where that has been found, the recipient has the chance to have the order reviewed by a court under some procedure or another. But what we are doing here is exactly the same in this regard. It is true of instances where there is an exception and it is true in this case, too.

Under these new rules, the unsuccessful asylum seeker will not receive a mere statement of the failure of his or her appeal. Just as now, the decision delivered will be the reasoned judgment of the adjudicator or of the Immigration Appeal Tribunal. That is itself an essential ingredient of fairness, because only if adequate reasons for a judgment are disclosed can the parties—and the public—understand why it was given. Only if adequate reasons for a judgment are disclosed can the unsuccessful party formulate a reasoned challenge if he or she wishes. Those fundamental rights are wholly untouched by the new rules.

I well understand the visceral reaction that to allow one party to a dispute to know the outcome before the other must be unfair. However, I reassure noble Lords that there is here no such disadvantage or unfairness. In a case involving a Belgian court fully 30 years ago, the European Court of Human Rights commented on the perceived unfairness in a case. It said: If one refers to the dictum 'justice must not only be done; it must also be seen to be done', these considerations may allow doubts to arise about the satisfactory nature of the system in dispute. They do not, however, amount to proof of a violation of the right to a fair hearing. Looking behind appearances. the Court does not find the realities of the situation to be in any way in conflict with this right". I think and hope that when noble Lords have an opportunity to consider how the rules will operate, they will adopt the same position as the Court of Human Rights did in that case. I hope that they will be able to say, "In truth, there is no disadvantage, no matter what the perception may originally have been". We argue—and argue strongly—that the rules do not subvert justice; but in fact, if properly looked at, they may very well sustain it.

Lord Avebury

My Lords, it only remains for me to thank most warmly all noble Lords who have taken part in the debate. In particular, I thank the Minister for the careful and extremely thorough explanation that she gave of the way in which the procedures will work. That has reassured noble Lords to some extent.

However, the views of the agencies have been echoed in all quarters of the House; they are that the procedure is not satisfactory. We shall watch extremely carefully how it will work in practice. I was extremely glad to hear the Minister say that at the beginning the arrangement will be tried experimentally in four geographical areas and that there will be a review in March. I hope that the Minister will report to noble Lords in March on what the experience has been of the experiment, so that we can express an opinion on whether the procedures are satisfactory or need to be revised.

The Minister said that the rules are part of the wider reform of the appeals system. I still wonder why on earth it was necessary to rush them through in the way in which that was done. She brushed aside the concern that was expressed by several noble Lords; namely, that the rules were pushed through during the Christmas Recess. The fact is that they came into operation on 7th January, which was the day before noble Lords came back from the recess. There was therefore no satisfactory opportunity for us to consider the rules before they became law. That is the position.

The Minister said that there had been consultations. She mentioned that the draft was sent to the Council on Tribunals and that it had replied. I also believe that the chief adjudicator was a recipient of the draft at the same time. Would the Minister be kind enough to say whether the draft that was presented and the comments that were made on it could be placed in the Library of your Lordships' House? Does she accept that consultations at that level are no substitute for the involvement of the whole refugee community? I believe that it was the noble Lord, Lord Judd, who said that it was extremely important to have good relations between all those concerned. That does not mean simply those on one side of the fence, such as the adjudicators and the tribunal; it also includes those acting on behalf of the appellant. They were not given the opportunity to enter into the consultations.

If I understood the Minister correctly, she said that the decisions of the adjudicator would be served on the appellant within two weeks. In the case of tribunals, if decisions were not served within six weeks, the tribunals would want to know why. There seems to be a fundamental difference in the two cases that are set out in the rules. In the first set of cases—those that are dealt with by the adjudicator—the appellant will not have very long to wait. However, in the other cases, the appellant may wait six weeks—or it may be such longer period of time as the tribunal is prepared to tolerate.

Baroness Scotland of Asthal

My Lords, I make it clear—I hope that this helps the noble Lord—that it is our intention that the decisions will be served as soon as is reasonably practicable. As I said in my earlier response to the noble Lord, very few such cases are likely to be subject to the new procedure. We shall monitor how quickly the procedure can be carried out. I reassure the noble Lord that the estimates that we are currently giving are simply estimates, because the procedure has not yet been tried. I also reassure noble Lords that we shall seek to place the necessary documents in the Library.

Lord Avebury

My Lords, I am extremely grateful to the noble Baroness for that assurance. But I have to warn her that I do not believe that the agencies will be wholly satisfied with what she said about the time limits. I believe that many of them would like the Home Office and the Lord Chancellor's Department to have a fixed time within which to serve the notices instead of it being a matter of "suck it and see"; that is, "Wait to see what happens in the experiment and then we'll come back to you".

Finally, I want to take up the point that the noble Baroness made in relation to the three-day period. That seems to be a very short time within which the appellant—if he is taken into custody as a result of this process—must claim legal advice on further action by way of judicial review. Let us imagine that he is waiting to hear the outcome of his application to the adjudicator or tribunal. The first that he knows of it is when, as we said, the snatch squad descends and takes him, and perhaps the whole of his family, to Harmsworth. I did not ask the noble Baroness about that issue. What will the procedure be when it is not only a question of an individual but of the whole of his family which resides with him? Will they be taken into custody at the same time?

As I understood the Minister, having been taken to Harmsworth, Trinity House or wherever, the appellant then has only three days in which to contact his lawyer to discuss whether or not there are grounds on which judicial review can be sought. That seems to me to be a very short time. I am not a lawyer, but I believe that the agencies may have something to say on the matter.

Obviously, as a result of this debate we know a great deal more about the procedure and I am enormously grateful to the noble Baroness for that. I believe that she will find that after this evening there will be further communications between the agencies and the Lord Chancellor's Department and even perhaps with the noble Lord, Lord Rooker, who we are very glad to see sitting beside her on the Bench. Having said that, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.